Judicial review of the detention order



Helsinki Foundation for Human Rights

Detention is ordered by the District Court upon request of the SG on specific grounds (see section on grounds for detention). Prolongation of the detention is also ordered by the District Court upon request of the SG. Asylum seekers stay in the detention centre can be prolonged if before the end of the previous period of the detention, the final decision concerning the application for international protection is not issued and the reasons to detain the applicant still exist.1

Asylum seekers are informed of the reasons of their detention, legal remedies and their rights. Information on the reasons for detention is given first in the court, orally, translated into a language understandable for the asylum applicant. From 1 May 2014 the court has a clear obligation to hear the person concerned before rendering a decision.2 In all guarded centres, when the person is admitted to the centre, there is a meeting during which a detainee receives information about the centre. Although, in practice asylum seekers do not understand the reasons of their detention and have a basic information on their rights. For example it happened that asylum seekers supported the SG requests to detain them which is surprising, especially in the light of the fact that later in some of these cases foreigners initiated the appeal proceedings. In one of such cases, during the detention hearing a foreigner reportedly supported the SG request to detain him despite the fact that his child had epilepsy.

The national legislation provides for a judicial review of the lawfulness of detention.3 Asylum seekers can appeal against a District Court ruling to the Regional Court within 7 calendar days from the day the ruling is pronounced (in prolongation cases it is 7 days from the delivery of the ruling to an asylum seeker).4 In this appeal the detainee can dispute the grounds of their detention. Asylum seekers receive rulings in the language they understand (it is a literal translation of a ruling rendered in Polish). Until 1 May 2014, there were no specified time limits for the Regional Court to decide on the appeal, but it should have been done “immediately”.5 In practice there were no legal consequences for not examining the appeal immediately. Sometimes the appeals were not even examined before the period for which an asylum seeker was placed in a detention centre finished.6 The Law on Foreigners envisages 7 days for the examination of the appeal.7

Some courts – although they have such a legal obligation – do not provide information about the right to legal representative. Automatic periodic review of the detention is ensured by limiting the period of time within which a ruling on detention is issued (up to 90 days or up to 60 days). The rule that the prolongation of the stay in the detention centre cannot exceed 90 days, no longer applies. Currently a stay can be prolonged for a time needed to issue a final decision concerning the application for international protection, no longer than in total 6 months. Previous practice of the courts and the SG raises concerns that prolongation will be judged for a maximum possible period (so for 6 months in total).A monitoring of the legality and correctness of the detention is carried out by a penitentiary judge of the regional court from 1 May 2014.8 A penitentiary judge can visit the detention centre any time, without limits, view documents and talk with TCNs staying in the detention centre.9

The court procedure concerning detention orders is not considered effective. Courts are very often deciding on detention of asylum seekers without an in-depth analysis of their personal situation, and reasons for detention mentioned in the judgment are indicated very generally - without direct reference to a personal situation. The court’s approval of the SG’s request to detain a TCN is often automatic, and TCNs are not heard in the appeal procedure before the District Court.10

NGOs have highlighted this problem for some time, but in 2013 the President of the District Court in Biała Podlaska, which handles a lot of asylum seekers’ detention cases (Terespol border crossing point is covered by this court’s jurisdiction) addressed a letter to the SG Commander in Chief about cases concerning prolongation of detention. The President of the Court noted in her letter,11 that the SG often submits the motions for extending the detention of asylum seekers on the last day of their stay, which does not give the court enough time to look into the case and analyse all the circumstances, inform the legal representative of the prolongation of detention for the asylum seeker, hear the person concerned, etc. In the opinion of the President of the Court, this may infringe the right to a fair trial.12 In 2015 it is still a problem. In 2016 Border Guard submitted motions for prolongation of a foreigners’ stay in detention in an adequate time.

Every TCN is entitled to compensation and redress for wrongful detention from the State Treasury.13 In 2016 HFHR lawyer represented two clients: one case is right now in Supreme Court of the Republic in Poland, the second one is considered by Regional Court in Radom.

The basic problem concerning grounds of detention is an automaticity applied by courts in all TCN detention cases.14 In practice courts accept SG applications to detain all TCNs without an in-depth analysis of the individual situation of the asylum seeker and the law in force. The following examples illustrate this practice.

The following quotation from the justification of one of the detention decision can demonstrate the common position of courts on the detention of children, according to which stay in the detention centre can be considered as a good thing for the child: “Moreover, when staying in the detention centre, the supervision and care will be provided for the foreigner and his child”. In the other case, which considered a family with two minor children, the medical and psychological examination of a child was not in-depth analised. Family was placed in the detention centre in Biała Podlaska for two months, and then their stay was prolong for the next three months. In the justification of the prolongation decision court neither refer to the presence of children or assessed their best interest. But two weeks later the family was released from the detention, under the decision of the Chef Commander of the BG Station in Biała Podlaska, due to the poor medical condition of one of the children, a 6-years-old boy. According to the psychiatrist’s opinion: “the medical condition of the child required his pharmacological treatment and the change of the environment as well as the care of his parents”. Psychiatrist recommended releasing the family from the detention centre and placing them instead in the reception centre for foreigners for the sake of the well-being of the child.

In the other case, on 7 October 2016 family with three minor children (2,4,8 years) was detained in a detention centre in Kętrzyn, after the transfer under the Dublin Regulation from Germany. During their transfer, family had all medical records with them which confirmed (also during their arrest in Germany, in German) that the physical and mental health state of two members of the family, was not only inadequate to make the transfer, but also certainly did not allowed them to be placed in a detention centre. According to the document issued by hospital – one of the members of family was hospitalized in July 2016 and in August 2016 in a psychiatric clinic because of PTSD, major depressive disorders with suicidal thoughts. They developed as a direct result of violence (including torture) which this person suffered from in the country of origin. None of the medical documents was taken into consideration neither by SG when issuing a motion to the court nor by the regional court during placing them in a detention centre. Information about their current health state and the treatment they had received during their stay in Germany was not secured properly by the German police which was crucial while issuing a motion to detain foreigners in a detention centre. Furthermore, physician in a guarded centre in Ketrzyn on admission he did not check the documents from Germany. In the family files, there were no record of a diagnosis of PTSD, depression or suicidal crisis, which resulted in the hospitalization of the patient in Germany. Family was released after 3 weeks. In the opinion of National Prevention Mechanism representatives, being for 3 weeks in a detention centre was inadequate to their health condition and caused further traumatization.15

  • 1. Article 89(4)Law on Protection, as amended in November 2015.
  • 2. Article 88b(1) Law on Protection.
  • 3. Article 88b(3)Law on Protection; Article 403(8)Law on Foreigners.
  • 4. Courts interpret differently the law in this matter – some claim that 7 days should be counted from the day of the pronouncement of the court ruling about placing the foreigner in the detention centre, some that it should be counted from the day the translated ruling is delivered to a foreigner in writing – T. Sieniow, op. cit., 54.
  • 5. Article 106 Law on Foreigners (applicable until 1 May 2014).
  • 6. T. Sieniow,op. cit., 56.
  • 7. Article 88b(3)Law on Protection; Article 403(8)Law on Foreigners.
  • 8. Article 426 Law on Foreigners.
  • 9. Article 426(3) Law on Foreigners.
  • 10. P. Nikiel, Raport o stosowaniu detencji wobec osób starających się o nadanie statusu uchodźcy w Polsce. Analiza orzecznictwa sądów (Report on detention of asylum seekers in Poland. Analysis of the jurisdiction), Centrum Pomocy Prawnej im. H. Nieć, 2010, 20, available at: http://bit.ly/1JA4RAR; T.Sieniow, op. cit, 49-50, 54-55.
  • 11. The letter of the President of the District Court in Biala Podlaska to the Border Guard Commander in Chief from 12 April 2013 nr adm. 5102-8/2013/K/VII. The letter was also sent to other institutions, including HFHR.
  • 12. See also T. Sieniow, op.cit., 60.
  • 13. Article 407 Law on Foreigners.
  • 14. J. Bialas, Automatism in foreigners’ detention in: Insearch of protection.Selected problems concerning the enforcement of rights of foreigners who apply for refugee status and are under international protectionin the years 2012-2014. Observations ofthe Legal Assistance for Refugees and Migrants Programme of the Helsinki Foundation for Human Rights), 2014, available in Polish at: http://bit.ly/1eiVxDF, 61-63; Centrum Pomocy Prawnej im. Haliny Nieć, K. Przybysławska (Ed.), Monitoring of Forced Returns from Poland July 2014-June 2015, 25.
  • 15. National Prevention Mechanism, Wyciąg Strzeżony Ośrodek dla Cudzoziemców w Kętrzynie, available in Polish at: http://bit.ly/2kPbgCA.

About AIDA

The Asylum Information Database (AIDA) is a database managed by the European Council on Refugees and Exiles (ECRE), containing information on asylum procedures, reception conditions, detenti