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
I. Introduction.
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.
Notes:
(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
(29)See §122
(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).