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 seekers in a language understandable to them about the right to ask for legal assistance.[3] However, this rarely happens in practice, as most asylum seekers 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]
It was also reported that asylum seekers received a court decision in a language that they did not understand.[9]
The law foresees a state legal aid system only to prepare the appeal to a negative asylum decision. In practice, only some foreigners decide to look for a legal representative, i.e., an advocate or a legal advisor.
Additionally, the right to have access to a translator was also not observed in 2021, while no further reports on the issue were made in 2022 and 2023. According to the NMP, translators did not translate the foreigners’ documents in detail. The explanation provided to foreigners was limited to the importance of signing documents, with no information provided on the content of statements or other documents. This practice was also observed during court hearings regarding the placement of foreigners in detention centres.[10]
[1] Articles 78 Law of 6 June 1997 on the Code of Criminal Procedure, available at: http://bit.ly/1UcUEO3.
[2] Ibid.
[3] Article 88b(4) Law on Protection.
[4] SIP, Annual Report 2019, April 2020, available in Polish at: https://bit.ly/3sIooIp.
[5] [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 here: https://bit.ly/3URYZek.
[6] BIURO RZECZNIKA PRAW OBYWATELSKICH, Krajowy Mechanizm Prewencji, KMP.572.7.2023.KK, Raport Krajowego Mechanizmu Prewencji Tortur z wizytacji Strzeżonego Ośrodka dla Cudzoziemców w Białej Podlaskiej available in Polish at: https://bit.ly/44tKu5y.
[7] [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 here: https://bit.ly/3URYZek. BIURO RZECZNIKA PRAW OBYWATELSKICH, Krajowy Mechanizm Prewencji, KMP.572.7.2023.KK, Raport Krajowego Mechanizmu Prewencji Tortur z wizytacji Strzeżonego Ośrodka dla Cudzoziemców w Białej Podlaskiej available in Polish here: https://bit.ly/44tKu5y, information provided by HFHR, March 2024, 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, published 22.02.2024, available in English: https://rm.coe.int/1680ae9529.
[8] 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 in English: https://rm.coe.int/1680ae9529.
[9] Information provided by HFHR, March 2024.
[10] [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 here: https://bit.ly/3URYZek.