The law provides access to free legal assistance for the review of detention before the courts, but it is hardly ever exercised in practice.[1] Asylum seekers can ask the court to grant them free legal assistance, if they duly prove that they are not able to bear the costs of legal assistance, without harm to the necessary maintenance of themselves and their families.[2] The court has a clear obligation to inform asylum applicants in a language understandable to them about the right to ask for legal assistance.[3] However, this rarely happens in practice still as of January 2025, as most asylum applicants are not aware of this possibility and are not represented by a legal advisor in the District or Regional Court.
In addition, their right to defence is not observed when the court decides on the extension of their detention. Applicants are either not informed about the day of the court proceedings, or they are informed (in Polish) with very short notice. As a result, they are unable to submit a request for the lawyer on time.[4] Moreover, they generally do not receive a copy of the application on placing them or prolonging their stay in detention, so in practice it means that they are not able to present their standpoint in detention case.
As a result, they are dependent on legal assistance granted by NGO lawyers, most of whom are not entitled to represent them in the courts.
According to the NPM, systemic measures have to be taken to ensure that every migrant deprived of liberty could have the possibility to contact a lawyer.[5] Detained migrants have repeatedly complained about lack of access to legal assistance, which has resulted in a lack of understanding of applicable procedures and their legal situation.[6] Some among them also indicated that the decisions issued by the court to extend their stay in the centre were delivered to them with delay, in a language they did not understand which in practice made it impossible to file a complaint.[7]
CPT noticed that legal assistance to detainees was left almost entirely to various non-governmental organisations, whose representatives assist detained foreign nationals on a pro bono basis. The CPT recommended to take appropriate steps – in consultation with the relevant Bar Associations – to ensure that, in all guarded centres in Poland, immigration detainees can effectively benefit from the services of a lawyer in all phases of the legal procedures (including through the provision of free legal aid for foreign nationals who are not able to pay for a lawyer).[8]
The law foresees a state legal aid system only to prepare the appeal to a negative asylum decision. In practice, only some (in 2024, 241 cases)[9] foreigners decide to look for a legal representative, i.e., an advocate or a legal advisor.
[1] Articles 78 Law of 6 June 1997 on the Code of Criminal Procedure, available here.
[2] Ibid.
[3] Article 88b(4) Law on Protection.
[4] SIP, Annual Report 2019, April 2020, available in Polish here.
[5] Commissioner for Human Rights, 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, 15 June 2022, available in Polish here.
[6] Commissioner for Human Rights, Krajowy Mechanizm Prewencji KMP.572.7.2023.KK, Raport Krajowego Mechanizmu Prewencji Tortur z wizytacji Strzeżonego Ośrodka dla Cudzoziemców w Białej Podlaskiej, 4 January 2024, available in Polish here.
[7] Commissioner for Human Rights, 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, 15 June 2022, available in Polish here; Commissioner for Human Rights, Krajowy Mechanizm Prewencji KMP.572.7.2023.KK, Raport Krajowego Mechanizmu Prewencji Tortur z wizytacji Strzeżonego Ośrodka dla Cudzoziemców w Białej Podlaskiej, 4 January 2024, available in Polish here; Information provided by HFHR, January 2025; CPT, Report to the Polish Government on the visit to Poland carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 21 March to 1 April 2022, 22 February 2024, available here.
[8] CPT, Report to the Polish Government on the visit to Poland carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 21 March to 1 April 2022, 22 February 2024, available here.
[9] Head of the Office for Foreigners, Public Information, 19 February 2025.