Detention is ordered by the District Court upon request of the BG. Prolongation of detention is also ordered by the District Court, upon request of the BG. In practice, it means that two different courts may decide on placing in detention and prolonging it. Asylum seekers’ stay in the detention centre can be prolonged if before the end of the previous period of 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 should be informed of the reasons for their detention, legal remedies and their rights. Information on the reasons for detention is given first in the court, orally (while deciding on detention), and translated into a language understandable for the asylum applicant. The court has a clear obligation to hear the person concerned before rendering a decision.[2] However, during the migration situation at the Polish -Belarusian border in 2021, the foreigners were not transported to the courts, but they took part in court proceedings online. The foreigners claimed that they did not understand the court procedure and the interpreter who translated the judge.
In all guarded centres, when the person arrives at the centre, there should be a meeting during which a detainee receives information about the centre. Although, in practice, asylum seekers do not understand the reasons for their detention and their legal situation and do not have basic information on their rights and their legal situation, for example concerning the length of their detention[3] which has a very negative impact on the mental state of the detained foreign nationals.[4]
The law provides for judicial review of the lawfulness of detention.[5] 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 notification of the ruling to an asylum seeker.[6] In this appeal, the detainee can dispute the grounds for their detention. The Law on Foreigners envisages 7 days for the examination of the appeal.[7]
Asylum seekers receive rulings in the language they should understand; a literal translation of a ruling rendered in Polish. In a few cases, NGOs observed that court decisions were not translated in a language that it is not known by the detainee. Unfortunately, the information about the deadline for appeal is not translated at all. In practice it means that the foreigners are not aware that they are obliged to submit it in 7-day period.
The court procedure concerning detention orders is not considered effective. Courts often decide on the 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. Courts do not conduct evidentiary proceedings on the best interests of the child and torture victims.[8] Moreover, persons detained are not informed that they can apply for a free legal aid while in detention.
In the appeal procedure and in a prolongation of a detention, detained migrants cannot be present in the court and present their standpoint, according to the Polish law. At the same time, they are not informed about the reasons for prolonging their stay in a detention centre by the Border Guard, for example in Kętrzyn and Białystok.[9] The application is not handed over to them, so they cannot present their reasons before the Regional Court will decide on their case. Additionally, applicants are not informed about the date of the court’s meeting in advance, so they are not able to ask the court to establish a legal representative in their case, which could be financed by the state. Furthermore, the appeal has to be prepared in Polish, so appellants completely depend on NGOs to draft the appeal.
Previously the Border Guard had been requested by the District Court of Biała Podlaska to submit motions for prolongation of detention in due time. In 2023, motions were submitted at least seven days to two weeks before the end day of detention[10] or after the case assessment.[11]
Every person is entitled to compensation and redress for wrongful detention from the State Treasury.[12]
Some NGOs follow and represent cases of asylum seekers who were a victim of violence. in Olsztyn, Warsaw, Lublin and Elbląg Regional Court.[13]
[1] Article 89(4) Law on Protection.
[2] Article 88b(1) Law on Protection.
[3] CPT Report 2018, available at: https://bit.ly/2HVZItc, 20. See also: Report NPM, “Situation of foreigners in the guarded centres in times of crisis on the border of Poland and Belarus”, June 2022, available in Polish at: https://bit.ly/3URYZek.
[4] [Sytuacja cudzoziemców w ośrodkach strzeżonych w dobie kryzysu na granicy Polski i Białorusi Raport z wizytacji Krajowego Mechanizmu Prewencji Tortur, [Situation of foreigners in the guarded centres in times of crisis on the border of Poland and Belarus”, Report NPM, June 2022, available in Polish at: https://bit.ly/3URYZek.
[5] Article 88b(3) Law on Protection; Article 403(8) Law on Foreigners.
[6] 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.
[7] Article 88b(3)Law on Protection; Article 403(8)Law on Foreigners.
[8] Only in one case in Regional Court in Olsztyn appointed a psychologist in a detention case, Information provided by the Regional Court in Olsztyn January 2022. Witold Klaus, Monika Szulecka, Dominik Wzorek, Detencja i jej alternatywy. Analiza orzecznictwa sądowego w sprawie umieszczania cudzoziemców w ośrodkach strzeżonych, Wydawnictwo Instytutu Wymiaru Sprawiedliwości, 2024, p.218.
[9] Information provided by the Association for Legal Intervention, February 2021.
[10] Information provided by different branches of Border Guard, letter, January -March 2024.
[11] Different branches of Border Guards, 2024.
[12] Article 407 Law on Foreigners.
[13] Information of HFHR, FIPP, Ocalenie Foundation and SIP, March 2024.