The complaint against the decision of the Head of the Office for Foreigners of November 20, 2018, which upheld the previously contested decision regarding the inclusion of Lyudmyla Kozlovska‘s data in the SIS II list of undesirable foreigners, was submitted to the Provincial Administrative Court in Warsaw on December 27, 2018.
The decision was charged with a number of breaches of national and European law, including the EU Charter of Fundamental Rights, the SIS II Regulation, the Act on Foreigners, the Code of Administrative Procedure and the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950. Lyudmyla Kozlovska’s proxy cited: the incorrect preparation of the legal reasoning for the order; the lack of comprehensive collection and due evaluation of the evidence; the inability to express the applicant’s complaint in this case; the violation of the principle of proportionality by placing the complainant’s data in SIS II in the light of the lack of appropriate premises and placing Lyudmyla Kozlovska in SIS II based on material and technical activity not based on an individual administrative decision; not informing the Complainant about the fact that her data was in the SIS II; depriving the Complainant of an effective legal remedy before the Court and of a fair and public hearing of the case to the extent that placing the applicant’s data on the list was based on a material and technical activity and not an administrative decision; refraining from making a justification of the provisions regarding the facts of the issued decision, which makes it impossible to effectively bring an appeal and a proper interim-state review of the contested decision; and unauthorised interference with the right to family and private life of the Complainant.
Lyudmyla’s proxy also presented the political context related to the case, including the history of the activity of the Open Dialogue Foundation and her husband, Bartosz Kramek, and the response to the pressure exerted by the ruling camp’s politicians and the authorities of the Polish state subordinated to them. He also requested that the Court turn to the Court of Justice of the European Union on the basis of Article 267 of the Treaty on the Functioning of the European Union with a request to consider a preliminary ruling: should the term “decision” referred to in Art. 24 Sec. 1 of the SIS II Regulation be understood only as an individual administrative act issued to a foreigner or does EU law allow the establishment of a regulation in national law allowing a public authority of a Member State of the European Union to be operated against an individual, without issuing an administrative act and without formal notification to the person concerned.
All decisions regarding the case of Lyudmyla Kozlovska have so far been made by the government administration bodies – the Voivode of Mazovia and the Head of the Office for Foreigners, reporting directly to the minister for internal affairs. Consideration of a number of complaints submitted to the Warsaw Administrative Court by the Complainant may take years.
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