HFHR issues statement in case of detained head of Open Dialogue Foundation

According to media reports, Lyudmyla Kozlovska, president of the Open Dialog Foundation, was detained in Brussels. As Ms Kozlovska’s husband informed on her social media profile, her detention was a result of the entry of an alert on her person into the second-generation Schengen Information System (SIS II) by Polish authorities, which was intended to refuse her entry or stay. The detention resulted in Lyudmyla Kozlovska mandatory removal from the Schengen Area and her return to Ukraine.

SIS II alert does not require decision

The HFHR monitors problems related to the use of SIS II. The provisions of the Foreigners Act stipulate when a foreigner’s data is entered and stored in the national register of unwelcome persons and when such data are transferred to SIS II. From the procedural perspective, an alert in the national list of unwanted persons is a technical measure and does not take the form of an administrative decision. Moreover, an alert is not always preceded by an administrative decision, which means that there is no possibility to appeal against the alert by lodging a complaint with an administrative court.

In the HFHR’s view, the relevant provisions of national law are incompatible with EU law. In fact, it follows from the examination of SIS II Regulation that the issuance of an alert on a national list resulting in an SIS II alert should always be based on a separate decision and not only on a technical measure, as the EU Regulation does not provide for such a possibility.

No appeal

SIS II Regulation lays down rules on the review procedure concerning national decisions on which an alert is based, which should be carried out in accordance with national law. The SIS II Regulation lays down rules on the review procedure concerning national decisions on which an alert is based, which should be carried out in accordance with national law. However, the provisions of Polish law do not envisage any appeal procedure against an alert on the national list where the alert has not been preceded by an administrative decision or a court judgment. The Foreigners Act only regulates the procedure for the subsequent obtaining, correction and deletion of data from the national list or the SIS II list.

Security risk as basis for SIS II alert

After an alert has been successfully issued, any person may apply to a court for access to information, rectification, erasure or compensation. However, the Polish Foreigners Act provides that if an alert in the national system or SIS II is based on “grounds of national defence or security or the protection of security and public order or an interest of the Republic of Poland”, it is not possible to obtain information on the factual basis for entering the alert. In such a situation, there is no effective legal remedy to dispute the grounds for the alert. In the HFHR’s view, a person should be informed of the grounds of the underlying decision in order to be able to exercise their fundamental right to a defence.

Classified files of administrative proceedings

In the case of legalisation of residence of Lyudmyla Kozlovska, and specifically the procedure for obtaining a long-term EU residence permit, certain files were sealed in administrative proceedings, which, in turn, is allowed by the Code of Administrative Procedure. For a substantial period, the Helsinki Foundation for Human Rights has been dealing with this issue, which results from the absence of appropriate national laws providing for a procedure allowing a party or their counsel to obtain access to sealed records in administrative proceedings.

Full text of the statement can be found here.