European Association of Administrative Judges
Annual Meeting and Workshop of the Working Party for Asylum and Immigration
Ljubljana, 28 – 29 June 2007
Striking a balance between protecting national security and ensuring public order on the one side and human rights on the other.
Jacek Chlebny, Judge of the Supreme Court of Poland, President of the Regional Administrative Court in Warsaw
The aim of this paper is to highlight the role of the national judge who is confronted with the public order and national security considerations while deciding on the alien right to entry and to reside in the territory of Poland. The topic is considered in the context of domestic legislation and the European Convention on Human Rights.
The rules governing the entry and residence of aliens in Poland are contained in two separate laws: Act on Aliens of 13 June 2003 1 and Act on the entry into, residence in and exit from the Republic of Poland of nationals of the European Union Member States and their family members of 14 July 2006 2.
At the outset two exclusion clauses from the topic.
Firstly, it should be explained why the rights of entry and residence of EU nationals were not discussed although there are also limitations of such rights on the grounds of national security and public order. Firstly, it is not a common practice to deny the EU national access to the territory of another Member State on the ground of concerns of national security and public order, therefore this topic in relation to the EU nationals is of minor practical significance. Secondly, due to the particularities of the Community Law this issue would require a completely separate approach and consideration. However, having expressed this initial exclusion clause to the topic, I would like to draw attention to the fact Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States 3. The directive allows restriction on the freedom of movement and residence of Union citizens and their family members on the grounds of public policy, public security or public health 4. I refer to the directive because it explains how to use the grounds of public policy and public security 5. It says that they should not be invoked to serve economic ends. Measures taken on the grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures. The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.
Secondly, the other exclusion clause from the topic concerns the aliens who qualify to the protection under Polish national law 6 and whose entry and residence rights, due to their legal complexity would deserve separate discussion. The only observation I would like to share is that the Geneva Convention of 28 July 1951 relating to the status of refugees, as amended by the New York Protocol of 31 January 1967 (Geneva Convention) does not prohibit to recognize a refugee, one who poses a threat to the national security as long as he/she does not fall within the exclusion clause, in particular under Article 1 F of the Geneva Convention 7. However, it is worth mentioning that the question of the relevance of the national security grounds may arise in the light of the recent Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification 8. From Article 14 (4) (a) and (5) of the Directive one may draw a conclusion that danger to the security of the Member State may justify not only to revoke, refuse to renew the status granted to a refugee ( as it is stated in the Article 14 (4) (a) but also refuse granting such a status (conclusion from the wording of Article 14 (5) of the Directive) 9. This regulation may give rise to considerable doubts as far as its consistency with the Geneva Convention is concerned. It also would conflict Polish Constitutional standard of protection in the event of this provision of the directive being implemented, since the Polish Supreme Administrative Court stated that the right to be granted the refugee status to such an extent as is granted by the Geneva Convention became the constitutional right 10. The alien’s right to be granted the refugee status pursuant to the international agreements binding Poland was set forth in Art. 56, sec. 2. of the Constitution 11.. Since the Geneva Convention does not allow refusal of the refugee status on the ground of the national security, such provision in national law that would work as an exclusion clause, would conflict Article 56 sec.2 of the Constitution. At the moment, Polish national law that is relevant to refugees does not provide such an exclusion clause.
II. The room for discretion.
Generally speaking, the Polish Aliens Law provides grounds for obligatory refusal of entry or residence of an alien if an entry into or residence may constitute a threat to state security and defence as well as to public security and policy or it would be in breach of the interests of the Republic of Poland 12. Obligatory refusal of entry and residence means that there is no room for discretionary decisions. If it is stated that national security and public order is threatened by an alien - he/she must be prohibited from stay or entry into the country. If there is not a discretion given by the law one may ask whether there is any power given to the agency or a judge. Discretion is by its nature a power to choose. If there is nothing left for a choice by the executives and the judiciary there is no latitude while taking a decision. One may ask whether there is any margin of appreciation or any degree of choice given to a front line decision maker or a judge. Is there any possibility of taking into consideration individual characteristics of the case under national law? Not to mention the proportionality test. The answer to that question is not easy.
Now, Let me draw attention to two discretionary elements that above all we may find.
The first derives from the Polish regulation and the second has its roots in the application of the European Convention on Human Rights in the aliens cases.
III. Polish legislation and practice.
A discretionary element has its roots in the wide comprehension of the terms national security and public order. Both these terms require interpretation since they are vague and there not any their definitions provided in law. Strictly speaking, the natural ambiguity of the language always leaves room for discretion. On the other hand, in order to avoid arbitrariness there is a practical need to define such terms. What kind of behaviour threatens the public order or raises concerns of national security?
In Polish case law there has been a constant attempt to draw the border lines for understanding of these concepts. There has also been an evolution. Initially, it was understood that breaking any regulation justified to consider that an alien poses a threat to a public order and national security. Such an extensive interpretation illustrates the case in which a view was taken that threat to public order as a ground for refusal simply equals non observance of law 13. In this case an alien, who was married to a Polish citizen with whom he had a child, was found to be a threat to public order just because he stayed illegally and worked at his wife’s business without a permission . Slowly but surely a different view prevailed and such an extensive interpretation was rejected. Firstly, a difference was found between breaking the law on the one hand and a threat to national security and public order on the other. It was not considered a threat to national security and public order finding an alien guilty of a single illegal trade of a bottle of alcohol in the open-air-market, or an illegal stay after the expiration of a visa, or living without registration at a given address 14. Secondly, stating the threat predictions of the alien’s behaviour were found relevant 15 . What is more, it was emphasized that the standard of assessment of conduct of an alien should not be different from the one that is applied to the nationals 16.
To sum up, the Polish case law attempted to built up criteria that helped in using the notions of national security and public order in a foreseeable manner. Certainly neither national security nor public order are terms of precise comprehension. They both lack accuracy and leave room for manoeuvre. It is clear that the threat to national security or public order that an alien poses must be real, not illusory, therefore individual circumstances of the case must be examined. Both the necessity of examining the individual circumstances of the case and wide comprehension of the terms of national security and public order have created roots for weighing the individual rights and public interest. Therefore they establish the first discretionary element.
IV Striking a balance between protecting national security and public order vis-à-vis human rights in the context of the European Convention on Human Rights.
European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) 17, in the same way as other ratified and published international treaties in the Journal of Laws of the Republic of Poland (Dziennik Ustaw) are considered an integral part of domestic law and have direct applicability unless an applicability statute is necessary 18. The rank of the European Convention on Human Rights is below the Constitution but it keeps special position vis-à-vis ordinary acts of parliament, because it prevails over acts of parliament in case of contradiction. The case law of the European Court of Human Rights (ECtHR) is not considered as the source of law, nevertheless it is respected by the national judges who feel it necessary to follow while applying the Convention.
At the outset three basic points should be made:
Firstly, the Convention rights and freedoms are guaranteed to everyone irrespective of the nationality (Article 1 ECHR) therefore may be invoked by a national judge in the cases that concern the aliens.
Secondly, decisions regarding the entry, stay and deportation of aliens did not concern the determination of an applicant’s civil rights or obligations or of a criminal charge against him, within the meaning of Article 6 § 1 of the Convention and consequently standards of Article 6 § 1 are not applicable in such cases 19.
Thirdly, although no right of an alien to enter or to reside in a particular country is as such guaranteed by the Convention and a State has the right to control the entry of non-nationals into its territory 20 the removal of a person from a country may not violate the European Convention on Human Rights.
From the national judge’s perspective who decides on the aliens right to stay or entry into the country, there are two Convention articles that are of the utmost importance. There are Article 3 ECHR 21 and Article 8 ECHR 22 . Later I will concentrate on them.
Generally speaking, in an immigration case, by its very nature, an infringement of Article 3 is based on the fact that the Contracting State accepts threat of torture or inhuman or degrading treatment in the other state to which an alien is going to be removed, while an infringement of Article 8 is based on the action of the Contracting State, that does not allow to continue private or family life in its territory.
It is a well-established view that Article 3 of the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim's conduct, however undesirable or dangerous. The expulsion of an alien may give rise to an issue under this provision, where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In such circumstances, Article 3 implies an obligation not to expel the individual to that country 23. In other words, the interests of public order or national security are immaterial, if absolute rights are involved. If so there is no room for striking a balance between protecting national security and ensuring public order on the one side and human rights on the other if Article 3 ECHR is at stake.
Under Art. 8 § 2 ECHR there are three conditions of the interference in exercise of private and family life. The interference is allowed if it is (a) in accordance with the law and (b) necessary in a democratic society (c) and in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The standards of legal interference under Article 8 § 2 ECHR which have been construed in the case law of the ECtHr. have to be met by the national judge and decision maker. While presenting the mechanism of applying protection provided by Article 8 ECHR there are always four basic groups of questions that have to be answered.
Firstly, it is necessary to establish the existence of a private or family life within the meaning of Article 8 § 1 Convention and whether there was interference. The interference is relatively easily to prove if the existence of a family and private life has been established. Generally speaking, any time when an alien is not allowed to continue his/her private or family life there is an interference. The possible problems illustrates case of Lupsa v. Romania. In this case the Court found irrelevant the arguments presented by the Government that the deportation and exclusion order did not amount to an interference with his private and family life, because firstly, the applicant had not a permanent right of abode in Romania but stayed there on the basis of a business visa that had to be periodically renewed, and secondly, the applicant’s girlfriend and child visited the applicant and stayed with him for several months after deportation 24.
Secondly, the interference has to be in accordance with the law and it requires, firstly, that the measure should have a basis in domestic law, secondly, it refers to the quality of the law in question. The quality is ensured by two conditions - its accessibility (it has to be published) and its foreseeability (it has to be formulated with sufficient precision to enable an applicant to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail) 25. In practice it refers also to the standards of the procedure. This requirement was successfully questioned by the applicant in the case of Lupsa v. Romania in which the Court concluded that whereas an applicant did not enjoy before the national administrative and judicial authorities the minimum degree of protection against arbitrariness on the part of the authorities, the interference was not in accordance with “a law” satisfying the requirements of the Convention. The measure in question should be scrutinised by an independent and impartial body competent to review all the relevant questions of fact and law. Before that supervisory body the person concerned must have the benefit of adversarial proceedings in order to present his point of view and refute the arguments of the authorities 26.
Thirdly, interference is justified in the light of the Article 8 §2 ECHR as long as it has legitimate aim. This condition requires to indicate one of the aims included in Article 8 § 2, such as national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Fourthly, the interference has to be necessary in a democratic society. It must be justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued 27. This condition consists in ascertaining whether in the circumstances of the case the interference struck a fair balance between the relevant interests, namely the applicant’s right to respect for his family life, on the one hand, and the legitimate aim, on the other. Striking a balance between protecting the public interest and individual human rights is exercised while examining proportionality. Each case is different and should be examined on individual basis. The national security as the ground for the interference was examined in the case Slivenko v. Latvia 28. In this case the Court in Strasbourg took a view that withdrawal of foreign troops and their families, based on a general finding that their removal is necessary for national security, cannot as such be deemed to be contrary to Article 8 of the Convention. However, the individual circumstances of persons concerns have to be taken into account. In order to strike a fair balance between the competing interests of the individual and the community, the removal of a person should not be enforced where such measure is disproportionate to the legitimate aim pursued. In the case of Slivenko v. Latvia. the applicants' specific situation was such as to outweigh any danger to national security based on their family ties with former foreign military officers 29. The method of proportionality test for the prevention of disorder or crime illustrates the case of Boultif v. Switzerland 30. In this case the Court enumerated several relevant criteria, such as: (1) the nature and seriousness of the offence committed by the applicant; (2) the duration of the applicant’s stay in the country from which he is going to be expelled; (3) the time which has elapsed since the commission of the offence and the applicant’s conduct during that period; (4) the nationalities of the various persons concerned; (5) the applicant’s family situation, such as the length of the marriage; other factors revealing whether the couple lead a real and genuine family life; (6) whether the spouse knew about the offence at the time when he or she entered into a family relationship; (7) whether there are children in the marriage and, if so, their age; (8) the seriousness of the difficulties which the spouse would be likely to encounter in the applicant’s country of origin, although the mere fact that a person might face certain difficulties in accompanying her or his spouse cannot in itself preclude expulsion.
To sum up, the possibility of striking a balance between protecting national security and ensuring public order on the one side and human rights on the other is limited to the cases that fall within the scope of Article 8 ECHR only. Since the judge applies directly the Convention to the aliens cases it constitutes the second element of the flexibility in such cases.
V. Procedural aspects of the striking a balance.
The likelihood is that the concerns of national security and public order not only justify refusal of entry and residence permit but also limit severely the procedural safeguards, such as the alien’s access to the case file and the right to submit reasons against expulsion. Polish law allows the party to look through the case files and to prepare notes and copies from them. This principle is not applied to the case files which are covered with the state secret protection, and with reference to other files which will be excluded by the state administration agency on account of the best interest of the state. Denying the party the right to look through the case files, to prepare notes and copies from them, to authenticate those copies or to give authenticated signatures shall be effected by means of a ruling subjected to complaint and subsequent judicial control (art. art.73- 74 of the Code of Administrative Procedure). The refusal of the access to the case file affects also the lawyer, who represents an alien. It must be stated that under no circumstances the access to the administrative case file is restricted to the judge.
It does not require any special justification that an access by the parties to the administrative file and the court’s file is one of the preconditions for a fair trial. In the light of the Council of Europe Recommendation Rec (2004) 20 on judicial review of administrative acts the right to a fair hearing comprises inter alia the principle of equality of arms between the parties to the proceedings (principle 4 b). The proceedings should be adversarial in nature. All evidence admitted by the tribunal should, in principle, be made available to the parties with a view to adversarial argument (principle 4d).
The Recommendation recognizes that in certain circumstances it should be possible to apply special protective measures to sensitive documents and illustrates it by using an example of the grounds for national security (explanatory memorandum point 64). It is interesting to note that the Recommendation refers to special protective measures and not to the denial of the access to the case file. Similarly, in the light of the ECHR case law not absolute denial of the access to the case file but special protective measures are recommended. In the case of Chahal v. the United Kingdom (15 November 1996) it was recognized that the use of confidential material may be unavoidable where national security is at stake. In the Chahal case, inter alia, the issue of detention and deportation of the alien on the grounds of national security was debated. Both the Chahal case and the Recommendation tend to strike a balance between protecting the public interest and the human rights approach.
The Polish approach is very restrictive in this area. Neither the party nor the lawyer may see the relevant documents covered by state secret protection or excluded on account of the best interest of the state. The possibility of defence is diminished. The party has to rely on the judicial scrutiny.
It is also worth mentioning Article 1 of the Protocol No 7 to the ECHR of 22 November 1984. It enumerates procedural safeguards to the expulsion of an alien who is a lawful resident in the territory of the state. Such an alien is allowed to be expelled only by virtue of a decision reached in accordance with law and should be allowed (Article 1 § 1 of the Protocol ): (a) to submit reasons against expulsion, (b) to have his case reviewed (c) and to be represented for these purposes before the competent authority. However, these procedural safeguards may not be applied when such expulsion is necessary in the interests of public order or is grounded on reasons of national security (Article 1 § 2 of the Protocol). In this context case of Lupsa v. Romania should be invoked. In Lupsa case the applicant was never informed on the facts that constituted the grounds for removal. The Court in Strasbourg stated that in the event of deportation, in addition to the protection afforded by Articles 3 and 8 taken together with Article 13 of the Convention, aliens benefit from the specific guarantees provided for in Article 1 of Protocol No. 7. Accordingly, although he was deported urgently for reasons of national security, which is a case authorised by paragraph 2 of Article 1, he was entitled, after being deported, to rely on the guarantees contained in paragraph 1 31. In the Lupsa case the authorities failed to provide the applicant any information on the offence of which he was suspected.
The similar situation occurred in the case decided by the Polish Supreme Administrative Court 32, in which the relevant documents of the case was not presented neither to the party nor to his lawyer due to their confidentially. The Court took the view that confidentially of the documents although diminish the principles of fair trial and equality of arms between the parties to the proceedings, nevertheless it has its grounds in the law and is of exceptional character. Additionally, all the documents were presented by the agency to the judge. It seems that this argument is extremely debatable since the removal was exercised before the court decided the case. It seems that in the light of Lupsa case and Article 1 § 2 of the Protocol, an alien may exercise his rights after removal. One of which allows reasons against expulsion (Article 1 § 1 point a) to be submitted and it requires knowledge on all the facts that constituted the ground for expulsion.
To sum up, special procedural measures are often justified vis-à-vis aliens who pose a threat to national security or public order. However, there must also be limits in a state ruled by law. This question should be a matter of concern. In the opinion of the Consultative Council of European Judges on the role of judges in the protection of the rule of law and human rights in the context of terrorism we can read that whatever the solution might be as regards access to evidence by the parties and defence lawyers, no limitations should apply to the possibility for the judge to have direct and personal access to documents, witnesses and other sources of evidence, in order to allow the court to ascertain all relevant facts and thus rule on an effective remedy (Article 13 ECHR) 33.
(1)Consolidated text in Journal of Laws of 2006, No. 234, item 1694, with later amendments, later called also Aliens Law.
(2)Journal of Laws No. 144, item 1043, with later amendments
(3)Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ L 158 of 30.04.2004, p. 77.
(4)See art. 27 (1) of the Directive
(5)See Article 27 (1) and (2).
(6)Act of 13 June 2003 on granting protection to aliens within the territory of the Republic of Poland (consolidated text in Journal of Laws of 2006, No. 234, item 1695, with later amendments)
(7)Article 1 F states the following::
The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that. (a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) He has been guilty of acts contrary to the purposes and principles of the United Nations.
(8)Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted
(9)See Article 14 (4) (a) and (5) 4. Member States may revoke, end or refuse to renew the status granted to a refugee by a governmental, administrative, judicial or quasi-judicial body, when: (a) there are reasonable grounds for regarding him or her as a danger to the security of the Member State in which he or she is present; ….5. In situations described in paragraph 4, Member States may decide not to grant status to a refugee, where such a decision has not yet been taken.
(10)Judgment of the Supreme Administrative Court of 26 August 1999, No File V S.A. 708/99.
(11)The Constitution of 2 April 1997 (Journal of Law No. 78, item 483 with later amendments). The Constitution provides a provision in Article 56 which says firstly, that an alien is entitled to enjoy the right of asylum in accordance with the principles specified by statute and secondly, that an alien who is looking for protection against persecution may be granted refugee status in accordance with the international treaties which are binding on Poland.
(12)see for example: Art. 21 (1) (6) of Act on Aliens : An alien shall be refused entry into the territory of the Republic of Poland, if: 6) his / her entry into or residence on may constitute a threat to the state security and defence as well as to the public security and policy or it would be in breach of the interests of the Republic of Poland. Art. 42 (4) of Act on Aliens : An alien shall be refused the issue of a visa, if: 4) issue of a visa may constitute a threat to the state security and defence as well as to the public security and policy or if it would be in breach of the interests of the Republic of Poland.
(13)Judgment of the Supreme Administrative Court of 17 July 2001, File No V SA 281/01.
(14)For example, judgments of the Supreme Administrative Court of 11 June 2001, File No V SA 3675/00 or of 6 November 2000, File No 720/00, or of the Regional Administrative Court of 21 June 2005, File No 886/05
(15)Judgment of the Supreme Administrative Court of 8 February 2002, File No V SA1885/01
(16)Judgment of the Supreme Administrative Court of 27 January 2000, File No V SA 1160/99
(17)ratified in 1993 (Journal of Laws of 1993, No 61, items 284, 285)
(18)Article 91 (1) of the Constitution
(19)See Maaouia v. France, a judgment of the ECtHR of 5 October 2000,
(20)See, among others, Al –Nashif v. Bulgaria, judgement of 20 June 2002, § 114, and Maslov v. Austria judgment of 22 March 2007, § 33
(21)Article 3 ECHR– Prohibition of torture. No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
(22)Article 8 ECHR– Right to respect for private and family life 1 Everyone has the right to respect for his private and family life, his home and his correspondence. 2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
(23)See, for example Salah Sheekh v. The Netherlands, judgment of 11 January 2007, § 135
(24)See Lupsa v. Romania, judgment of 8 June 2006, §§21-27
(25)See for example, Lupsa v. Romania, judgment of 8 June 2006, §§32-33, or Slivenko v.Latvia, § 100.
(26)See Lupsa v. Romania, judgment of 8 June 2006, §§ 38,42
(27)See, for example Boultif v. Switzerland, judgment of 2 August 2001, § 46
(28)Slivenko v. Latvia, judgment of 9 October 2003
(30)Boultif v. Switzerland, judgement of 2 August 2001, §§ 45, 48 These criteria were also used in other cases such as Üner v. The Netherlands, judgment of 18 October 2006, § §57, 58, or in a recent case Maslov v. Austria, judgment of 22 March 2007, § 36.
(31)See § 53 of the judgment Lupsa v. Romania
(32)Judgment of the Supreme Administrative Court of 31 August 2005, File No II OSK 656/05
(33)The Consultative Council of European Judges (CCJE) was set up by the Committee of Ministers of the Council of Europe and presented the Opinion No . 8 (2006) on the Role of judges in the protection of the rule of law and human rights in the context of terrorism. This Opinion has been adopted by the CCJE at its 7th meeting (Strasbourg, 8-10 November 2006).