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Charges? Secret. Right to defence in cases built on sealed evidence

The Provincial Administrative Court in Warsaw dismissed the Helsinki Foundation’s complaint against a compulsory return decision issued under new anti-terror laws.

The decision, made by the Minister of the Interior and Administration, ordered the return of an Algerian national whose wife is Polish. This decision was based on classified evidence that purportedly showed that the man was “a terrorist threat”.


The complaint argued that the denial of access to case files and the sealing of sections of the statement of reasons for the return decision effectively deprived the foreign national of any possibility to find out what the grounds for the decision were. According to the HFHR, such a situation violates the European Convention on Human Rights and EU law. Moreover, authorities failed to give sufficient consideration to the impact of the expulsion on the man’s family life.

Judgment of Warsaw PAC

In a verbal summary of the judgment, the Provincial Administrative Court in Warsaw stated that the foreign national’s procedural rights had been guaranteed because his case was heard by an administrative court that had access to all materials of the case, including sealed evidence. The PAC also emphasised that a compulsory return decision may be issued on the basis of an expectation of the commission of terrorist acts rather than in response to the actual commission of such acts, which laid at the core of the discussed case.

The HFHR plans to file a complaint in cassation to the Supreme Administrative Court. The Foundation is also looking forward to a judgment of the European Court of Human Rights, which is likely to be passed in Orujov v. Poland, a similar case already communicated  to the Polish Government. “This judgment may not only influence the outcome of the present case but also have an impact on the provisions of Polish law that enable a foreigner’s expulsion without first affording them an opportunity to mount their own defence”, said Jacek Białas, HFHR’s lawyer representing foreign nationals in both cases.

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