Cassation against a failure to delete a name on the list of unwelcome foreigners

Chakib Marakchi is a Moroccan citizen. In 2009, he applied to the Head of the Office for Foreigners for the removal of his personal data from both the Polish list of unwelcome foreigners and the Schengen Information System. The Office for Foreigners twice declined Mr Marakchi’s request.

During the proceedings before the Office for Foreigners, Chakib Marakchi argued that he had no knowledge of the reasons behind the decision to insert his personal data into the registers.

On 28 February 2013 Mr Marakchi filed a cassation complaint against the judgement of the Provincial Administrative Court in Warsaw dated 28 December 2012, case no. V SA/Wa 173/12. The Provincial Administrative Court dismissed Marakchi’s appeal against the ruling of the Head of the Office for Foreigners who had refused to delete the appellant’s personal data from both the Polish list of unwelcome foreigners and the Schengen Information System. The case was brought before the Supreme Administrative Court for the second time. In the first judgement in Mr Marakchi’s case made on 14 December 2011, case number II OSK 1938/10, the Supreme Administrative Court found mistakes on the part of the first instance court and referred the case for reconsideration.

“The provisions of the Foreigners Act don’t allow foreigners to learn about the factual basis of their entries into the Polish register of unwelcome foreigners and the Schengen Information System. Also, they are not allowed to review case files which contain classified information”, says Michał Chylak, a HFHR lawyer.

Professional counsel for Mr Marakchi also was denied access to all the case files even though he had a valid security clearance. Both the attorney for Chakib Marakchi and the Helsinki Foundation for Human Rights expressed reasonable doubts regarding the constitutionality of the wording and interpretation of the relevant statutory provisions.

“In a situation where case files have been classified, Polish law offers no procedural remedy enabling a person subject to expulsion from the country, or his or her legal representative, to effectively defend their case”, says Mr Chylak.

According to the HFHR, a denial of one’s access to classified case files, if argued before the European Court of Human Rights, may result in ECtHR finding a violation of the right to fair trial, right to privacy and the right to an effective remedy. Furthermore, the HFHR points out that under Article 1 of Protocol No. 7 to the European Convention on Human Rights, the adjudicating organ is obliged to specify, already before the end of the proceedings, the reasons for expulsion related to the protection of public order existing in respect of the persons subject to expulsion.

The case is included in the HFHR Strategic Litigation Programme and conducted pro bono by legal counsellor Artur Zawadowski and trainee legal counsellor Jarosław Jankowski, attorneys with Weil Gotshal & Manges.