Poland - Voivodeship Administrative Court of Warsaw, IV SA/Wa 2086/18, 5 November 2019

Country of Decision:
Country of Applicant:
Date of Decision:
05-11-2019
Citation:
IV SA/Wa 2086/18 - Wyrok WSA w Warszawie
Court Name:
Voivodeship Administrative Court of Warsaw
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Facts: 

Mr Azamat Bayduev is a citizen of Russia, of Chechen origin, who was granted international protection in Poland in 2007. In 2018, due to national security reasons his protection was withdrawn and he was expelled from Poland as a result of the execution of the decision of the Minister of the Interior and Administration to oblige him to return, issued on the basis of the provisions introduced by the Act of 2016 on Anti-Terrorist Activities. Pursuant to these provisions, the Minister issues a decision obliging to return a foreigner suspected of conducting terrorist or espionage activity. The decision is immediately enforceable.

The decision to oblige Mr Azamat Bayduev to return was issued by the Minister on the basis of classified Internal Security Agency documents to which neither the foreigner nor his legal representative had access during the proceedings. Due to national security reasons the decision did not include the justification either. As a result, the reasons for expulsion from Poland were not disclosed to Mr Bayduev at any stage of the proceedings. Moreover, the Minister failed to examine whether the foreigner's fear of returning to Russia which we claimed during the proceedings was justified and whether he should therefore be granted one of the forms of protection against expulsion (humanitarian stay or tolerated stay permit).

Following Mr Bayduev's expulsion in August 2018, Amnesty International reported that immediately after his return to Russia, he was apprehended by Russian security forces immediately upon return and was transported to an unknown place, where he was kept under detention.

 

 

Decision & Reasoning: 

Before the Voivodeship Administrative Court of Warsaw, the applicant argued that he had been deprived of the legal safeguards in the proceedings, including the right of defense and effective remedy. Moreover, he also argued that the Minister failed to examine if Mr Bayduev faced the risk of tortures upon return, which was a clear violation of Article 3 ECHR.

On 5 November 2019, the Court annulled the decision of the Minister, underlining that, in accordance with national law, it was the Minister's obligation to examine the risk of torture in case of  expulsion of the foreigner. The same obligation also required a consideration of the provisions granting protection against expulsion. At the same time, the court indicated that it had not found procedural violations due to the foreigner's lack of access to the documents constituting the basis for his expulsion.

Subsequent Proceedings : 

The judgement is not final.

Observations/Comments: 

The case was supported by the Helsinki Foundation for Human Rights (HFHR). Many thanks to Marta Górczyńska, Lawyer at HFHR, for bringin this case to our attention and completing the summary.