The Law on Foreigners contains a section on detention conditions, rights and obligations of foreigners.[1] Some practices relating to the functioning of the centres have now been framed into the legal provisions. Below we present how the conditions are in practice.
Overall conditions
Nine centres (Białystok, Czerwony Bór, Kętrzyn, Biała Podlaska, Przemyśl, Lesznowola, Wędrzyn and Krosno Odrzańskie) are relatively new and in good condition (they were built after 2008), Krosno Odrzańskie, Białystok, Lesznowola, Przemyśl, Biała Podlaska have been renovated in recent years.
Detention centres in Czerwony Bór and Lesznowola are located in woods and far from any public transportation which is a problem in case of foreigners released from detention centres. The temporary detention centre in Wędrzyn is located on an active military range where military manoeuvres take place and the explosions happen.[2] Foreigners released from Wędrzyn are taken to the closest city by the Border Guards. Very often foreigners are left alone without any assistance and information where they should go or how they should reach the reception centre in Dębak.[3]
There were cases of overcrowding in detention centres in 2022: in Lesznowola, Przemyśl, Wędrzyn, Białystok and in Kętrzyn.[4]
Generally, the foreigners are accommodated in rooms, which cannot be locked at night as for security matters[5]. But on the other hand, from August to the beginning of December 2021, approximately 100 foreigners, mainly families with children, from different countries and religions were placed in a sport hall in Kętrzyn[6], which was a large open space, without any portable screen or a partition. The foreigners had only beds and tables at their disposal and the access to Internet, phones and legal assistance was very restricted.[7] According to the penitentiary judge the sport hall did not meet any the standards set up in Regulations on conditions in detention centres. Additionally, the foreigners (120) are placed in containers in detention centre in Lesznowola and Kętrzyn, even two families in one container.
There were no rules in placing foreigners in detention centres in Wędrzyn, Czerwony Bór and Kętrzyn, which means that people of different nationalities and religions (or those who gave up their religion) were placed in the same facilities which increases tense atmosphere and insecurity. As a result, there were conflicts between foreigners and the use of violence (including fights).
Foreigners are subject to constant monitoring, which is disproportionate to their situation and applied in the penitentiary system only to particularly dangerous prisoners.
In some detention centres, the food is provided by external providers (Biała Podlaska, Wędrzyn), while in others it is prepared in the centres (e.g. in Bialystok). There are several specific diets e.g., vegetarian, vegan, adapted to Muslims, adapted to pregnant or breastfeeding women or diabetics. Other diets can be respected on prescription of the physician.[8] Generally foreigners complained about the food in 2021 as it was not the kind of food they were used to eat.[9]
The main equipment in a room in detention centre consists of beds, small wardrobes and a small table. If detainees cannot have all their belongings in their room, they have to place them in external storage space in the centre. Some of their belongings are also placed there for safety reasons and can be accessed only upon request. In addition, in Lesznowola[10] there is a television in each room (also in Krosno Odrzańskie), gym and outdoor pitch. In a detention centre in Biała Podlaska there is air condition in each room.
According to the Commissioner for Human Rights, the automatic detention of foreigners who crossed the Polish-Belarusian border limited the role of those facilities to the isolation function only. Furthermore, poor living and sanitary conditions, improper exercise of the rights of migrants and the length of stay in isolation may reach the threshold of inhuman and degrading treatment. Moreover, level of medical and psychological care provided in detention centre is insufficient and as a result the health of foreigners who were victims of torture could deteriorate through the secondary victimization.[11] Furthermore, the detention centres look like prisons and detention centres in Krosno Odrzańskie, Białystok, and Przemyśl have rooms with barred windows.[12]
The temporary detention centre in Wędrzyn, which is a branch of detention centre of Krosno Odrzańskie, was located in military barracks, on an active military range where military maneuvers take place, and the explosions happen on a regular basis. That facility was adapted to detention centre in 5 days and its capacity is 700 places. The detention centre and small walking areas are surrounded by a concertina razor wire. Foreigners are placed in several buildings, 150 people in each. Foreigners are accommodated in multi-bedrooms with the capacity of up to 24 which makes it impossible in practice to create conditions ensuring at least minimum privacy. At the end of 2021, 599 foreigners were placed in the Wędrzyn facility and its capacity will be increased to 900 places.
According to the Commissioner for Human Rights, that facility does not fulfil any of the basic guarantees preventing inhuman and degrading treatment of persons deprived of liberty. The material conditions are not acceptable in the light of the minimum standards of protection of the rights of foreigners in detention and they do not fulfil the standards of decent treatment of persons deprived of liberty.
Since the very beginning of the functioning of the centre in Wędrzyn, the biggest and persistent problem is overcrowding of that facility. During the visit of the representatives of Commissioner for Human Rights, the number of foreigners detained exceeded the maximum capacity which makes it impossible in practice to exercise a number of rights of foreigners detained in the centre. Furthermore, the windows were covered with toilet paper due to lack of the blinds there is no furniture other than tables and stools in rooms, clothes are stored on the floor or in plastic bags. Foreigners have had very limited access to the outside world, as access to the computers, scanners, printers and Internet is restricted, which causes problems with getting in touch with lawyers or non-governmental organizations[13] and difficulties in complying with the deadline for filing the appeals in asylum and detention procedures. There is no offer of recreational and sports activities.
Furthermore, in November 2021 there was a riot in the Wędrzyn detention centre.[14] Later in January and in February 2022 foreigners organized hunger strikes several times due to poor conditions in that facility and prolonging detention[15]. According to the Commissioner for Human Rights there is a high risk of another riot.
The Commissioner for Human Rights pointed out in his recommendations, issued after one of visits to the detention centre in Wędrzyn, that Border Guard should remind officers of the security division of their basic obligation to treat foreigners with respect. The representatives of the Commissioner received alarming signals about the use of uncensored terms by Border Guard officers in relation to foreigners. Additionally, Border Guards address the foreigner by identification numbers.[16]
Representatives of the Commissioner for Human Rights conducted also inspections of detention centre in Przemyśl. They pointed out that bars are still installed in the windows which emphasize the penitentiary image of the facility. Additionally, in many rooms, the foreigners had to hang blankets over the windows to limit sunlight during the day.[17]
Activities and education
As it was mentioned earlier, the profile of detention centres was changed in 2021 for example the families with children are detained in detention centres where in the past only men were detained. In practice this means that the infrastructure is not adjusted to the needs of minors, for example there are no playgrounds.
Moreover, not in all guarded centres there is a sport and recreation space, e.g. in Wędrzyn, Białystok, Kętrzyn, and Biała Podlaska[18] there are no recreational and sports activities organized for the foreigners.[19] On the other hand, in some detention centres the open-air space is of adequate size and sufficient recreational facilities are provided (e.g. playing field for volleyball or basketball in Lesznowola). In practice the detainees have the possibility to take part in outdoor exercises on a regular basis. Detainees can watch television without any limitations, even until late at night.[20]
Not in all centres there was access to the internet (e.g. in Wędrzyn, Czerwony Bór) and the number of computers used by foreigners is not sufficient. The access to printers and scanner was also restricted in some detention centres, in e.g. Wędrzyn. It is worth noting that foreigners are under constant supervision of the Border Guard officer who additionally records the personal data and the exact time of their use of internet.[21] Furthermore, the Border Guard Chief Commander ordered on 27 January 2017 the blocking of sites with presumed terrorist-related and extremist content, social media and instant messaging platforms. New technologies such as VoIP (Voice over Internet Protocol) are also forbidden for security reasons even though the CPT recommended this kind of communication to be available for use by the foreigners in detention centres.[22] Clearance of the internet usage was also introduced but on the other hand, foreigners placed in detention centres have a possibility to use Skype after signing up for the list.[23]
Not all foreigners have phones or SIM cards and there are no public telephones. They can request to use a traditional cell phone in a disposal of Border Guards.
Not all of the detainees have access to reading and leisure materials. However, in some centres there are libraries with a number of books and newspapers in several languages, for example in Russian, English, and French. They also have popular games to play (e.g. chess, cards). Concerts and sport competitions are organised for adults and children in Kętrzyn (but only until August) and Przemyśl. On the other hand, according to UNHCR and Commissioner for Human Rights,[24] foreigners complained that additional activities are rarely organized and that they feel bored.
Detention centres provide rooms for religious practices.
In all centres, in the corridors of each floor there are boards which provide information in at least 1 or 2 main foreign languages (Russian and/or English). They provide information on the asylum applicants’ rights and/or the rules of stay in the detention centre, meal times, and contact details of NGOs, UNHCR and – depending on the centre – on access to the doctor and psychologist.
In all centres each asylum applicant and irregular migrant has an officer appointed to their case with a scheduled meeting to discuss their case. Unfortunately, the number of the officers in 2021 was not sufficient.
The rules of stay in the detention centres are available in 17 languages: Arabic, English, Ukrainian, Russian, French, Armenian, Chinese, Georgian, Hindi, Spanish, Mongolian, Persian, Turkish, Farsi, Urdu, Bengali and Vietnamese.[25] Depending on the centre they are available on each floor of the detention centre or in the common rooms, etc.
Children staying in the guarded centres are – like all other children staying on the territory of Poland – subject to obligatory education until they are 18. However, this obligation, set in the Polish Constitution, is not fulfilled in the case of children staying in guarded centres.[26][27] None of the children staying there attends school. Schools near the detention centres in Kętrzyn and Biała Podlaska delegate teachers to work in detention facilities. Special classrooms are prepared in these centres. This is the result of agreements between the Border Guard, educational institutions and local authorities.[28]
Due to COVID-19, children implement schooling obligation on-line on the same terms as Polish pupils, which caused lots of problems as parent did not receive any support in explaining the task from school in Polish.
Special needs and health care in detention
According to the law, all detainees have access to regular health care.[29] Unfortunately, in some detention centres access to the physician (Wędrzyn) and psychologist (Krosno, Białystok, Kętrzyn, Biała Podlaska) is very restricted.
In some detention centres nurses are present on a daily basis from 7.30 a.m. till 9.30 p.m. In case of an emergency or the need for a specialist (e.g. gynecologist), detainees are transferred to hospitals or clinics. Since March 2018, Border Guard officers trained in first aid should be present during night shifts in all guarded centres.
In September 2015, the Border Guard prepared a document entitled “Rules of SG proceedings with foreigners who need special treatment (algorithm)” because there is no definition of persons who need special treatment and there are no methods for their identification set out in law. The algorithm consists of: (i) a definition of foreigners who are in need of special treatment, (ii) a list of persons involved in identification, (iii) a set of solutions which simplify identification, (iv) a procedure which should be implemented before a foreigner is placed in detention centre and (v) a procedure when a foreigner is already in detention. However, early identification of victims of torture and violence is not carried out during the preliminary examination of a foreigner on admission in practice. This document was modified in June 2019, based on merely internal consultation at Border Guards. In the opinion of SIP, still this document needs to be improved.[30]
In the opinion of the Commissioner for Human Rights,[31] and the Commissioner for Child Rights,[32] the algorithm used by Border Guard to identify victims of violence is inconsistent with Polish law, the Istanbul Protocol and other international standards. This algorithm does not allow for the immediate release of foreigners who are alleged victims of violence from the guarded centre. According to the Commissioner for Child Rights, the available treatment and therapy in the detention centre for identified victims of torture only exacerbate their mental trauma. The Commissioner called on the Minister of Interior and Administration to oblige the SG to develop new set of rules regarding foreigners whose mental state demonstrates that they were violence victims.[33]
According to the HFHR, the Polish authorities (SG and courts on own motion) do not identify victims of violence in an effective way. Such identification should be done at the earliest possible stage while deciding on whether the person should be placed in detention. Additionally, the SG and courts should on their own motion exclude the use of detention. Asylum seekers who in their asylum application declare that they were torture victims, are in practice sometimes placed in detention centres. Moreover, some courts placed victims in detention centres stating that there is no objection to placing a victim in detention because they will have access to psychological assistance in the guarded centre. The same opinion is presented in the SG guidelines, according to which, a foreigner will not be released if a psychological assistance can be provided in the guarded centre.[34]
In practice there is a limited access to psychological care. In 2021 in guarded centre in Kętrzyn, the psychologist-Border Guard officer was available 5 days a week from 8 a.m. to 3 p.m., additionally in September 2021, a further psychologist, employed in the health department in Border Guard Unit was referred to detention centre, while in this centre 791 foreigners were placed in total in 2021.[35]
In Krosno external psychologist was present only for 4 hours 3 times a week. She is also responsible for foreigners detained in detention centre in Wędrzyn, which capacity is 700 foreigners.[36] Additionally, in Wędrzyn, foreigners did not have a direct access to the psychologist as her room was outside of the detention centre, behind the barbed fence. In Przemyśl, two psychologists for foreigners are available 100 hours a month. In Biała Podlaska detention centre there are two psychologist: A civil worker and the other one was border guard officer. Additionally, the external psychologist was hired for 4-8 hours a week, who in principle provides psychological consultations.[37]
Additionally, the Border Guards refused to allow psychologists to hold meetings with specific foreigners in 2021 in detention centres in Wędrzyn and Lesznowola, saying that the foreigners have access to the psychological care in detention centres. In Lesznowola two psychologist were hired and they were available twice a week, 4-8 hours in total and on call, while the capacity of that detention centre is 192 places.[38]
The Commissioner for Human Rights reported lots of irregularities in psychological assistance and underlined that the number, the frequency and the description of the consultations showed that these consultations only consisted of preliminary interviews and diagnosis. Long-term psychological support was not provided. Additionally, the Commissioner pointed out that the fact that only one psychologist provides psychological assistance in detention centres, limits the availability of psychological support. There is a high risk that this psychologist will not be available when the support during a foreigner’s mental crisis is needed and there will be no one who could substitute her/him and provide psychological assistance. Moreover, foreigners should have the possibility to choose a psychologist. Otherwise, a detainee who is unable to trust an available psychologist, will not have access to effective psychological support. Moreover, Commissioner pointed out that a person who does not feel comfortable in the presence of a particular psychologist, he/she will not take advantage of the support. Regardless of their competence, a psychologist may not be the right person to provide support in a particular case because of his/her age, gender, appearance or even the way of speaking. In a situation of a multicultural population in detention centres, the human factor plays an even more important role and the more difficult it can be to build trust. Therefore, it is very important to be able to get psychological help from more than one person. When there is no alternative, when a person is not able to trust the only psychologist providing support in a given centre, psychological care will not be longer realistically available.[39]
Furthermore, the access to the medical healthcare in some detention centres was very restricted, particularly in Wędrzyn. NGO and Commissioner for Human Rights received multiple complaints about the access to an adequate medical healthcare.[40]
[1] Articles 410-427 Law on Foreigners.
[2] Commissioner for Human Rights, Visit in detention centre in Wędrzyn in October 2021, https://bit.ly/3HrbNQJ.
[3] Commissioner for Human Rights, meeting with the Commander-in-Chief of the Border Guard, available at: https://bit.ly/3vp4yqa.
[4] Information provided by Border Guards Headquarters for SIP, 18 February 2022.
[5] CPT Report 2018, available at: https://bit.ly/2HVZItc.
[6] REPORT from periodic visitation of the detention Centre for Foreigners in Kętrzyn, conducted by penitentiary judge of the District Court in Olsztyn on 24.11.2021 for the period from 1 November 2019 to 1 November 2021.
[7] Remarks to the Committee of Prevention of Torture, Association for Legal Intervention, March 2022, available in English at https://bit.ly/3vVzbSP.
[8] Commissioner for Human Rights, Wyciąg Strzeżony Ośrodek dla Cudzoziemców w Przemyślu, 7 February 2018, available (in Polish) at: http://bit.ly/2EXlR4y.
[9] Report of the National Torture Prevention Mechanism on the visit detention centre for foreigners in Białystok on the implementation of the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and the recommendations of the KMPT from the visit of the facility in 2018 available at: https://bit.ly/3Mjx5n9.
[10] Commissioner for Human Rights, visit in detention centre in Lesznowola on 8 February 2022, available at: https://bit.ly/3pm3PSA.
[11] Commissioner for Human Rights, Letter to the Regional Courts, 25 January 2022, available at: https://bit.ly/3HnQZJL.
[12] Information provided by the Border Guards, 5 February 2021, Commissioner for Human Rights, Wyciąg, Strzeżony Ośrodek dla Cudzoziemców w Białej Podlaskiej,18-19 July 2018, available (in Polish) at: https://bit.ly/2TBZ3OY.
[13] Commissioner for Human Rights, visit in detention centre in Wędrzyn in October, available at https://bit.ly/3HrbNQJ.
[14] Commissioner for Human Right, Riot in detention centre in Wędrzyn, in 2021, https://bit.ly/3C1C2w6.
[15] Hunger strike in Wędrzyn. Dr. Machinska: “The center is below the prison standard; it needs to be liquidated”. January 2022, available at: https://bit.ly/340szZ.
[16] Information provided by Nomada Association, February 2022.
[17] Commissioner for Human Rights, Visit in detention centre in Przemyśl in February 2022, https://bit.ly/3pm3PSA.
[18] Paras 2 and 9 Regulation on detention centres.
[19] Commissioner for Human Rights, visit in detention centre in Wędrzyn in January 2022, https://bit.ly/3M7oXpx.
[20] Information provided by the Border Guard, 18 August 2015.
[21] Commissioner for Human Rights, Wyciąg Strzeżony Ośrodek dla Cudzoziemców w Krośnie Odrzańskim, 30 January 2018, available (in Polish) at: http://bit.ly/2F2ptCr.
[22] CPT Report 2018, 28; available at: https://bit.ly/2HVZItc. See also Commissioner for Human Rights, Wyciąg Strzeżony Ośrodek dla Cudzoziemców w Białej Podlaskiej, 7 January 2019, available (in Polish) at: https://bit.ly/2TBZ3OY.
[23] Information provided by the Border Guard, 14 and 25 January 2019.
[24] Commissioner for Human Rights, Letter to the Regional Courts, 25 January 2022, available at: https://bit.ly/3HnQZJL.
[25] Information provided by the Border Guard, 18 August 2015.
[26] Foreigners in administrative detention. Results of the KMPT monitoring in guarded centres for foreigners in Poland, March 2021, available in Polish at https://bit.ly/3L0F5YZ, Commissioner for Human Rights, Letter to the Regional Courts, 25 January 2022, available at: https://bit.ly/3HnQZJL.
[27] HFHR and Association for Legal Intervention, Wciąż za kratami, 2014, available (in Polish) at: http://bit.ly/1JBxxXm, 46.
[28] Regulation on education foreigners and Polish citizens who were learning abroad, 23 August 2017, available (in Polish) at: https://bit.ly/2XkPupP.
[29] Articles 415(1)(5) and 417 Law on Foreigners.
[30] SIP, Annual Report 2019, April 2020, available in Polish at: https://bit.ly/3sIooIp.
[31] Commissioner for Human Rights, Wystąpienie do Komendanta Głównego Straży Granicznej w sprawie identyfikacji ofiar tortur, 4 July 2017, available (in Polish) at: https://bit.ly/2SvtzZJ.
[32] Commissioner for Child Rights, Wystapienie do Ministra spraw Wewnętrznych, 5 September 2018, available (in Polish) at: https://bit.ly/2GAvObC.
[33] Ibid.
[34] HFHR, Rights of persons deprived of liberty-fundamental legal and practical issues. HFHR perspective, July 2018, available at: https://bit.ly/2SktNaF.
[35] Information provided by Border Guard in Kętrzyn, 18 February 2022.
[36] Border Guard Commander, Krosno Odrzańskie, information, 3 February 2021.
[37] Information provided by Border guard Unit in Biała Podlaska, 29 March 2022.
[38] Information provided by Border Guards, 28 January 2022.
[39] Foreigners in administrative detention. Results of the KMPT monitoring in guarded centres for foreigners in Poland, March 2021, available in Polish at https://bit.ly/3L0F5YZ.
[40] Remarks to the Committee of Prevention of Torture, Association for Legal Intervention, March 2022, available in https://bit.ly/3vVzbSP.