The Supreme Administrative Court (SAC), in its verdict II OSK 1927/22 NSA of June 29, 2023, overturned the verdict of the Provincial Administrative Court in Warsaw (PAC) challenged by our Association and referred the case for reconsideration.

The Refugee Council refused our client refugee status and subsidiary protection. A complaint was filed with the PAC, which was dismissed as the court found no violation of the law in the course of the administrative proceedings. We, as an Association, acting as a participant in the proceedings, filed a cassation appeal against this judgment with the Supreme Administrative Court.

In the complaint, we indicated, inter alia, that the reasons for the contested judgment were defective, that the case was heard in closed session instead of at a hearing, and that the complaint was dismissed despite the lack of a proper evidentiary hearing.

The SAC held that the case was invalid due to the deprivation of the applicant and the administrative authority of the possibility to defend their rights.

The reason for the invalidity of the proceedings was a specific circumstance – i.e. on the day of the hearing before the PAC, the President of the Division issued an order to hold a closed hearing and cancel the public hearing (trial) scheduled for that day, citing the so-called covidien rules and the impossibility of holding the hearing remotely due to organisational reasons.

Referring to the standpoint of the judicature*, the SAC indicated in the justification of the judgment that hearing the case, contrary to the provisions of the law, in a closed session instead of at a hearing results in the parties to the proceedings being deprived of the possibility to defend their rights, with the consequence that the proceedings are invalid.

In the SAC’s opinion, the President could order a closed session if he or she considered it necessary to hear the case and it was not possible to conduct it remotely with simultaneous direct video and audio transmission. This was allowed by the regulations adopted in connection with COVID-19 pandemic. However, in such a situation, according to the approach set out in the judgment, the application of these regulations should be accompanied by measures aimed at mitigating the negative effects on the exercise of the rights of defence of depriving a party of the right to a public hearing. More specifically, the parties should be warned that the case will be heard in closed session and advised of the opportunity to submit a further written submission.

As noted by the SAC, in the case, not only were the migrant and our Association not notified that the case would be heard in closed session, but on the contrary, they were first informed that the case would be heard and then, on the day the hearing was to take place, the case was decided in closed session. The parties were surprised that the case was heard in closed session. Such a situation, in the opinion of the Supreme Administrative Court, exhausts the premise of the invalidity of the proceedings due to depriving the party of the possibility to defend its rights.

*judicature – a set of legal principles and a method of judicial decision-making.