Communicated on 27 November 2019

FIRST SECTION

Application no. 1103/16 Oleg POKLIKAYEW against Poland lodged on 28 December 2015

STATEMENT OF FACTS

The applicant, Mr Oleg Poklikayew , is a Belarusian national, who was born in 1980 and currently lives in Belorussia. He is represented before the Court by Ms M. GÄ…siorowska , a lawyer practising in Warsaw.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On an unknown date in 2006 the applicant, came to P oland. Subsequently, on 3 March 2006 the Mazowiecki Governor ( Wojewoda Mazowiecki ) granted him a permanent residence permit on the basis of Article 52 (5) of the Polish Constitution in view of his Polish origins. Subsequently, the applicant settled in Poland, found a job and bought an apartment. His sister and her family also live in Poland.

On 23 January 2012 the head of the Internal Security Agency ( Agencja Bezpieczeństwa Wewnętrznego ) issued a request to have the applicant expelled under section 68 (1) of the Aliens Act ( Ustawa o cudzoziemcach ) on the grounds that “his continued stay in Poland would constitute a threat to the State ’ s defence or the security of the State”. It was noted that since 2000 the applicant had been collaborating with the Belorussian secret services.

On 26 January 2012 the Mazowiecki Governor issued a notice about the opening of the proceedings concerning revocation of the applicant ’ s permanent residence permit and his expulsion.

On 6 February 2012 the applicant consulted the case file.

On 13 February 2012 the governor classified certain documents in the file as secret “ tajne ”. On the same date the applicant again consulted the case file.

On 16 March 2012 the Mazowiecki Governor decided to revoke the applicant ’ s residence permit and to expel the applicant from Poland, as sought by the Internal Security Agency. The governor heard the applicant, who had stressed that he had strong links with Poland, where he had bought an apartment and worked under a permanent contract. He stated that he had no links with Belorussia. On the basis of this and the classified material, the governor held that the applicant ’ s continued stay in Poland would constitute a threat to the State ’ s defence or national security, or to the protection of public security and public order, or otherwise threaten the interests of the Republic of Poland.

The governor also stated that no grounds existed for granting the applicant a “tolerated stay”. Lastly, the governor prohibited the applicant from entering and remaining in the Schengen Area for a period of five years. An immediate enforcement clause was attached to this decision.

On 20 March 2012 the applicant was expelled from Poland.

On 2 April 2012 the applicant appealed against the expulsion decision arguing that he had unjustly been considered a national security threat.

On 21 August 2012 the head of the Office for Foreigners ( Szef Urz Ä™ du do Spraw Cudzoziemców ) upheld the first ‑ instance decision on the applicant ’ s expulsion, reiterating the findings of the lower authority.

The applicant appealed on the grounds he had referred to originally.

On 16 July 2013 the Warsaw Regional Administrative Court ( Wojewódzki S Ä… d Administracyjny ) upheld the second ‑ instance decision on the applicant ’ s expulsion. The court observed, that the request to revoke the applicant ’ s residence permit had been submitted by the Internal Security Agency on 23 January 2012. This document was not classified. The Agency noted that since 2000 the applicant had cooperated with the Belorussian secret services. Subsequently, the head of the Internal Security Agency submitted further documents in support of his request. These documents were classified as secret. The court noted that the administrative authorities correctly dispensed with their obligation to give further reasons for their decisions owing to matters of national security. It also held that in view of the information contained in the classified documents the contested decision was correct. Lastly, the court found that the applicant could have and in fact had actively participated in the proceedings. Most importantly, he had consulted the case file and had access to the Internal Security Agency application of 23 January 2012.

The applicant appealed against this judgment.

On 28 July 2015 the Supreme Administrative Court ( Naczelny Sąd Administracyjny ) dismissed a cassation appeal by the applicant, observing, in particular, that the analysis of the secret material which had been made by the authorised organs was binding and sufficient. Moreover, the analysis in question had been scrutinised by the courts, which had had access to all parts of the case file and which could have objectively verified the reasons for the applicant ’ s expulsion. The fact that the courts had had an opportunity to review the evidence was thus considered sufficient in terms of respect for the applicant ’ s procedural rights.

On 5 June 2012 the head of the Office for Foreigners refused the applicant ’ s lawyer ’ s request to examine the classified part of the case file without giving further reasons for this decision owing to matters of national security. This decision was upheld on 24 July 2012.

On 11 April 2013 the Warsaw Regional Administrative Court dismissed the applicant ’ s representative ’ s appeal on the ground that he had not had the required certificate of clearance pursuant to section 4(1) of the law of 5 August 2010 on protection of classified information ( Ustawa o ochronie informacji niejawnych ).

On 10 May 2013 the Warsaw Regional Administrative Court refused yet another request submitted by the applicant ’ s lawyer to examine the classified part of the case file. That decision did not contain any reasons.

Under section 68 (1) of the Aliens Act of 13 June 2003 ( Ustawa o cudzoziemcach ) (“2003 Act”), as applicable at the material time, permanent residence permit was to be revoked if the national defence or security or the need to protect the interests of the Republic of Poland so required.

Pursuant to section 88(1)(5) a foreigner was to be expelled from Poland in the event that his or her continued stay would have constituted a threat to the State ’ s defences or national security, or to the protection of public security and public order, or otherwise threatened the interests of the Republic of Poland.

Section 89(1) of the 2003 Act provided that a foreigner should not be deported in the event that he or she: ( i ) was entitled to be granted a “tolerated stay”; (ii) was married to a Polish citizen or to a foreigner who had a permanent resident permit ...; (iii) was staying in Poland on the basis of a Schengen visa ...; or (iv) had a valid residence permit or other permit entitling him or her to reside in Poland which was issued by a third Schengen country, provided that his or her stay did not threaten national security or safety, or the public order or interests of the Republic of Poland.

The 2003 Act was repealed by the Aliens Act of 12 December 2013 ( Ustawa o cudzoziemcach – “the 2013 Act”), which entered into force on 1 May 2014.

Articles 9, 10 and 73 of the Code of Administrative Procedure establish respectively the principles of the rule of law and public proceedings ( jawność postępowania ), and the right of a party to proceedings to have access to a case file. Article 74 of that Code sets out an exception to the rule regarding the right of a party to proceedings to have access to a case file by providing that a decision shall be issued to restrict the access of a party to a case file containing secret or top secret information. Such a decision is open to an interlocutory appeal.

Section 5 of the Law on the protection of cla ssified information of 5 August 2010 ( Ustawa o ochronie informacji niejawnych ) accords four levels of protection depending on the importance of the classified material, namely: “top secret” ( ściśle tajne ), “secret” ( tajne ), “confidential” ( poufne ) or “restricted” ( zastrzeżone ). Under section 5(2) of this law, classified information shall be rated “secret” in the event that its unauthorised disclosure would cause a grave damage to the interests of the Republic of Poland. Section 8 of this law provides that secret information shall only be disclosed to authorised persons in line with further provisions.

COMPLAINTS

1. The applicant complains under Article 6 of the Convention that he was expelled on the basis of decisions which were issued with various procedural shortcomings. In particular, the applicant makes the following complaints: ( i ) neither he nor his lawyer was granted access to the case files during either the administrative or court proceedings; (ii) the expulsion decision was immediately enforced, and his appeal did not have a suspensive effect.

2. He also complains under Article 13 of the Convention that since the case files were classified as “secret” he could not present arguments against his expulsion and therefore was deprived of an effective remedy against the domestic decisions .

QUESTIONS TO THE PARTIES

1. Did the decision to expel the applicant– an alien who was lawfully resident in the territory of the respondent State – comply with the procedural requirements of Article 1 of Protocol No. 7 to the Convention?

2. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 1 of Protocol No. 7 to the Convention, as required by Article 13 of the Convention (see, C.G. and Others v. Bulgaria , no. 1365/07, §§ 55-65, 24 April 2008 and Ljatifi v. the former Yugoslav Republic of Macedonia , no. 19017/16 , §§ 43-45, 17 May 2018 )?