The Supreme Administrative Court: The ban on Lyudmyla Kozlovska’s entry into Poland is unjustified

9 December 2022 | Author: Natalia Melnychenko

On 5 December 2022, the Supreme Administrative Court overruled the last verdict of the neo-judges at the Voivodeship Administrative Court that was unfavourable to Lyudmyla Kozlovska and thus ,the decision of the Mazovian Voivodeship in her case. The Court concluded that the President of the Open Dialogue Foundation poses no threat to national security – contrary to what the services subordinate to PiS have been claiming.

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The Supreme Administrative Court’s judgement means that the entry of Lyudmyla Kozlovska into the Schengen Information System (SIS) in 2018, marking her with the highest alert, and her consequent deportation from Poland and the European Union, was illegal and unjustified. Despite the slander campaign accompanying her entire case, conducted by PiS both in Poland and on the EU arena, subsequent Member States, following their own controls, allowed the President of ODF onto their territories, considering that she did not pose any threat. Within a year, her details were erased from the SIS. In the Schengen Area, Poland became the only country to ban her entry.

In July 2022, three neo-judges from the Voivodeship Administrative Court in Warsaw – despite three previous judgements of the Voivodeship Administrative Court in favour of Lyudmyla Kozlovska – decided that the Polish government was right to expel her from Poland, even though the President of the Open Dialogue Foundation had three previous judgements won against the PiS government.

However, the Supreme Administrative Court had no doubts: “The collected material, both secret and public, does not allow to state that Lyudmyla Kozlovska poses a threat to the security of the state”. In the justification of the verdict, the judges argue that “the authorities did not address the evidence sent by the plaintiff.”

For the FOURTH time independent Polish court overturned the decision of the Voivodeship Administrative Court against me. The Supreme Adm. Court (#SAC) ruled that my expulsion from Poland & the EU in August 2018 was arbitrary/ unjustified. @PACE_LegalHR @PACE_President 1/5 pic.twitter.com/6DgZlMUc18
— Lyudmyla Kozlovska 🇪🇺🇺🇦 (@LyudaKozlovska) December 5, 2022

The latest ruling by the Supreme Administrative Court means that the President of ODF is back to square one. The court battle for the possibility of her return has been going on for four and a half years.

Attorney Joanna Koch also comments on the case (OSK 2603/21 – case regarding a long-term EU resident permit):

“The Court did not take into account the plea concerning the invalidity of the proceedings, i.e. the fact that the Court of First Instance was composed of judges who should have been excluded by virtue of law or that the court was improperly appointed. Referring to other decisions of the Supreme Administrative Court, the Court took the view that the mere fact that the judges of the Voivodeship Administrative Court were appointed in the procedure conducted by the “new NCJ” does not give grounds for recognising their lack of independence and impartiality. These considerations should be examined in relation to specific judges, i.e. other circumstances are necessary to establish their lack of independence and impartiality (and not only issues concerning the procedure for their appointment). The Court did not see such circumstances.

However, the Court upheld essentially all the substantive objections, i.e. those concerning the infringement of the provisions of the proceedings and substantive law by the Voivodeship Administrative Court.

First of all, the Court agreed with the allegations of the cassation appeal that the Voivodeship Administrative Court had completely disregarded the requests for evidence which had been submitted with the letter of June 30, 2021, i.e., inter alia, the letter of the Prosecutor’s Office for Combating Organised Crime and Special Affairs in Moldova of March 23, 2021, confirming that the criminal proceedings had been discontinued without charges being brought against anyone, as well as press articles on journalistic findings regarding the circumstances of the so-called Moldovan report. The Voivodeship Administrative Court completely ignored the fact of submitting this evidence to the file and therefore ruled on the basis of incomplete evidence.

The Supreme Administrative Court also agreed that the Voivodeship Administrative Court had made a flawed assessment of the remaining evidence in the case. First, the reasoning of the judgement lacked a detailed reference to the non-classified material that should have been discussed, and the party should have been aware of the reasons that guided the court when not taking into account the evidence provided by the party (restrictions on the reasoning apply only to classified material, covered by the “secret” clause, and not to non-classified material). Second, the Supreme Administrative Court considered that the totality of the evidence does not allow the recognition that Lyudmyla threatens the security of the Polish state. The security of the state, as well as security in general, must always be considered in connection with specific threats, and there are no such threats in Lyudmyla’s case.

When re-examining her application for a long-term EU resident permit, the administrative authorities will be bound by the Supreme Administrative Court’s assessment of the probative value of the existing evidence. It will therefore be necessary to re-assess the collected evidence and possibly supplement the material (not only secret, but also non-classified material). Such an assessment will also be subject to the evidence submitted in the letter of November 15, 2022, i.e. (i) Resolution 2458 (2022) of the Parliamentary Assembly of the Council of Europe on the misuse of the Schengen Information System by the Member States of the Council of Europe as a politically motivated sanction, (ii) Report of the Committee on Legal Affairs and Human Rights to the Parliamentary Assembly of the Council of Europe, (iii) copy of the judgement of the Supreme Administrative Court of March 22, 2022, case no. II OSK 1214/21. The Supreme Administrative Court considered that the role of administrative courts is to examine the legality of administrative decisions according to the factual and legal status in force as of the date of its issuance. This means that the Court refrained from assessing the evidence itself, but ordered the administrative authorities to examine it.

The case will now be re-decided by the Mazovian Voivodeship.”

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