Right to Know

Right to Know  Comparative Report on Access to Classified Data in National Security  Immigration Cases in Cyprus, Hungary and Poland  Written by Gruša Matevžič with substantive contributions from   Jacek Bialas, Nicoletta Charalambidou and Zita Barcza-Szabó.  August 2021  This study has been supported by the European Programme for Integration and Migration  (EPIM), a collaborative initiative of […]

Right to Know 

Comparative Report on Access to Classified Data in National Security  Immigration Cases in Cyprus, Hungary and Poland 

Written by Gruša Matevžič with substantive contributions from  

Jacek Bialas, Nicoletta Charalambidou and Zita Barcza-Szabó. 

August 2021 

This study has been supported by the European Programme for Integration and Migration  (EPIM), a collaborative initiative of the Network of European Foundations (NEF). The sole  responsibility for the study lies with the authors and the content may not necessarily reflect  the positions of EPIM, NEF or EPIM’s Partner Foundations. 

Executive summary 

National security grounds can be a reason for exclusion from, or withdrawal of international  protection status; refusal or revocation of residence permits; or expulsion and immigration  detention. When someone is considered a threat to national security, the reasons are usually  based on classified data.  

If there are no sufficient procedural guarantees that would enable the affected foreigners to  effectively challenge these decisions by immigration authorities, the actual legitimacy of the  existence of the threat becomes questionable. Although a procedure to access the classified  data exists in Cyprus, Hungary and Poland, in immigration cases this access is usually  denied to the applicant and their representative. The immigration detention procedure in  Poland is slightly different, because it is governed by a Code of Criminal Procedure that  actually provides access to the classified file. It can therefore be assumed that these provisions on access also apply to immigration detention. However, national law provisions do not  regulate whether the obtained information can be used in other immigration procedures. 

Furthermore, decisions based on national security grounds do not have to contain reasons in  any of the three countries. Administrative authorities in Cyprus and Poland have access to  classified data, but not in Hungary. On top of this, the opinion of the Hungarian security  agencies on a national security threat (which also does not have to contain reasons) is binding  on the immigration authorities in asylum procedures and in certain immigration proceedings.  In Cyprus, administrative authorities do not always examine all the classified data based on  which the threat to national security was established, and do not include certain documents in  the case file. Instead, they rather automatically accept that someone constitutes a threat. In  Poland, only the summary of all the evidence collected by the security agency is accessible to  the authorities. Therefore, the applicants in all three countries are unable to effectively  contest decisions by immigration authorities that interfere with their fundamental rights, such  as the right to asylum, private and family life, right to liberty, etc. Detention on national  security grounds is automatic in all three countries. In addition, asylum detention in Cyprus does not carry any maximum duration. 

In all three countries, the courts reviewing immigration procedure decisions have access to  the classified data. Such information is usually examined in immigration procedures, but not  in immigration detention procedures in Hungary and Cyprus; while in Poland, the courts are  obliged to assess the classified data ex officio. In Cyprus, the courts will go no further than to  ascertain that the Government gave evidence that it was protecting national security, and the  courts will not question whether the steps taken were indeed necessary and proportional. In  Hungary and Poland, the courts cannot refer to the content of the classified data in the  judgement. In Cyprus, in practice, the courts do not refer to the content of classified  information as such in their judgements, but may give an indication as to what it relates to.  

In all three countries, it is possible to appeal the decision if access to the classified  information is denied, but these appeals are not effective. In Hungary, even if the applicants  would be allowed access to the classified information, they are denied the possibility to use the obtained information in the administrative or judicial proceedings.  

In Hungary and Poland, the courts do not have the possibility to examine and decide whether  the classification was lawful. In Cyprus, the courts have such a possibility; but in the majority  of cases their examination does not focus on this issue. 

It could be concluded that the existing systems in all three countries are not compatible with  relevant EU law and jurisprudence of the Court of Justice of the EU (CJEU) and the European  Court of Human Rights (ECtHR) and violate the rights to defence and the right to an effective  judicial remedy.  

The study wants to raise awareness of the problem and the human (rights) impact thereof. It  illustrates several actual cases where for example: 

∙ the Supreme Court in Cyprus took a hard line approach and ruled that no judicial  control of decisions denying disclosure of classified data and of ordering detention  based on national security grounds is allowed; 

∙ an applicant in Cyprus was detained because he was considered a threat to  national security due to an entry in the Interpol database by a country from which  he was seeking asylum. Political or other motives of such inclusion into databases  were not examined in the course of the judicial procedures, and it was not  disclosed to the applicant which country made the entry into the Interpol database 

because it was claimed that disclosure of that information would endanger national  security; 

∙ the Metropolitan Court in Hungary submitted a preliminary reference to the CJEU  on the lack of access to the reasons why someone constitutes a threat to national  security in asylum procedures, on the lack of individual assessment of withdrawal  of refugee status due to the binding opinion of the security agency, and on the  limited judicial review; 

∙ a right to request suspensive effect of an expulsion decision based on national  security grounds is denied in Hungary

∙ detention on national security grounds in high-security detention facilities is  automatic in Poland; and 

∙ Migrants of Chechen origin in Poland were falsely accused of supporting ISIS, but  were able to rebut the accusations due to the access to the evidence based on which  the accusations were made. 

In all three countries it is accepted and confirmed by national case law that despite the denial  of access to the applicant, the right to a fair trial is ensured because the courts have access to  classified data. It is interesting to see that such understanding of the right to a fair trial, the  principle of equality of arms and adversarial procedure are not shared by several other  Member States, where the parties to the procedure must have the same access to all the legal  and factual reasons and information available to the court. Therefore, there is a clear need to  further legislate the matter at the European level.  

The study concludes with several recommendations to Cyprus, Hungary and Poland and the  European Commission. 

This post was originally published on KISA.


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