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Victory before the Voivodship Administrative Court (WSA) in the case of a refugee from Afghanistan

A trial was held before the Voivodship Administrative Court (WSA) in Warsaw on 9 August 2007 regarding the case of the refugee from Afghanistan, in which the Helsinki Foundation for Human Rights is taking part, represented by lawyers from the Legal Assistance for Refugees and Migrants Program. The court ruled that the Council for Refugees violated the prohibition of reformationis in peius.

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The case concerns a crucial formal issue. The President of the Office for Repatriation and Aliens (URiC) refused to grant refugee status to a Party, at the same time granting permission for tolerated stay. The alien appealed against this decision to the Council for Refugees, which overruled the decision of the organ of first instance and remitted the case for renewed consideration. At the same time, in its justification, the Council ruled that the President rightly refused to grant refugee status to the alien and indicated that it is not possible to assume that he should be entitled to a permit for tolerated stay. Afterwards the organ revealed why in its opinion the alien fails to meet the premises for granting any form of protection. The Council's decision was appealed to the WSA in Warsaw and the President of URiC, to whom the Council remitted the case for renewed consideration, suspended the proceedings until the complaint is considered by the Court.

The fundamental component of the complaint lodged to the WSA and backed by the Helsinki Foundation was the charge of violating the prohibition of reformationis in peius, i.e. the prohibition for the organ of appeals to rule to the disadvantage of the appealing Party (Art. 139 of the Code of Administrative Procedure - Kpa). During the hearing held on 9 August, the court ruled that the Council for Refugees violated this prohibition. In its oral justification the Court emphasized the fundamental importance of this principle in procedural law. Although in principle it does not apply towards cassation decisions, issued in line with Art. 138 § 2 of the Kpa, the very essence of these types of decision however shows that they are limited merely to assessing the need to conduct a renewed hearing of evidence. As an exception to the rule, according to which the organ of appeals must re-examine the contents of the case, they cannot include indications determining the contents of the renewed decision of the organ of first instance. Therefore, they cannot all the more so be issued to the disadvantage of the appellant in these cases, as this is only admissible when the decision of the organ of first instance flagrantly breaches the law or is flagrantly against the public interest. The term flagrant breach, as an exception to the general principle, cannot be interpreted more broadly and the assertion of such a breach must be reflected in the justification to the decision made by the organ of appeals. As the decision of the Council for Refugees violated the law, the Court consented to the accusations in the complaint and overruled the appealed decision.

2007-08-20

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Victory before the Voivodship Administrative Court (WSA) in the case of a refugee from Afghanistan

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