If a decision to release a foreigner from the detention centre is issued and the asylum seeker is a disabled, elderly, pregnant or single parent, the SG is obliged to organise the transport to the reception centre, and – in justified cases – provide food during the transport.[1]
In 2020, more than 7 asylum seekers benefited from this transport.[2]
Detention of persons with health conditions
According to the law, asylum seekers whose psychophysical state leads to believe that they are victims of violence or have a disability as well as unaccompanied minors cannot be placed in detention centres. This is also applicable to asylum seekers whose detention causes a serious threat to their life or health,[3] as under the law, an asylum seeker should be released if further detention constitutes a threat to their life or health.[4] This means that, for example, children, if they stay in Poland with parents or other legal guardians, can still be detained, as can pregnant women if they are healthy.
Notwithstanding legal provisions, still in practice it happens that vulnerable asylum seekers are detained, even when they were diagnosed with mental health problems as a result of past events.[5]
In 2020, only 33 foreigners (2 were detained in Przemyśl and 7 detained in Biała Podlaska) were released on the basis of health considerations.[6
In the opinion of NGOs, the problem with identification of victims of torture and violence persists. Identification should be conducted before placing in detention and not in detention. Indeed, a poor mental condition is hardly ever accepted by courts as sufficient ground for not placing in or releasing an asylum seeker from detention. Practice shows that neither the Border Guard nor the courts take the initiative to assess if an asylum seeker is a victim of violence. In 2019 the court appointed only in 4 cases the psychologist or psychiatrist as an external consultant, which means that expert was appointed in 0.5% of detention cases.[7]
An analysis of the justifications of the courts’ rulings concerning detention leads to the conclusion that in a large number of cases mental health is not considered by judges or there is no reference to the health of the foreigners at all.[8] Additionally, courts do not accept psychological opinions submitted by independent psychologists (e.g. from NGOs),[9] and they rely on short opinions (very often it is one sentence stating there are no obstacles to prolonging the stay in guarded centre) of the physician who works in detention centre. In practice, only courts of higher instance call on experts to determine applicants’ mental health state[10] but this happens very rarely. Additionally, courts do not conduct their own evidentiary proceedings.[11]
In 2018 the Commissioner for Human Rights visited another 3 detention centres and in the reports the Commissioner reminds that the internal algorithm, on the basis of which the identification is performed, does not clearly state that vulnerable persons, once identified, should be immediately released from detention. The Commissioner observes that lack of accessible treatment and therapy in the detention centres deepens the trauma.[12]Torture survivors stay in detention centres and even if they are identified at a later stage, they are not released from detention. Medical staff and psychologists in the detention centers lack expertise and proper knowledge of Istanbul Protocol.[13]
After the visit in the detention centre in Biala Podlaska in 2018, the Commissioner for Human Rights again confirmed that the Border Guard’s guidelines on how to deal with persons requiring special treatment should clearly state that the person identified as a victim of violence should be released from detention (as required by the law) and not only offered treatment in detention.[14]
In its 2019 concluding observations, the UN Committee against Torture stated that in Poland there is insufficient capacity to identify asylum seekers who are victims of torture and lack of adequate protection and care for survivors of sexual and gender-based violence. In the opinion of CAT, Poland should introduce a principle to law that detention of asylum-seekers, and in particular children and vulnerable persons, should be a measure of last resort, for as short a period as possible and in facilities appropriate for their status. Furthermore, CAT recommended that Polish authorities refrain from placing asylum seekers and in particular children in guarded centres and ensure the fast and appropriate identification of vulnerable persons including survivors of torture and ill-treatment, as well as sexual and gender-based violence, and provide them with adequate access to health care and psychological services.[15]
Moreover, the Committee was concerned that training on the provisions of the Convention and the Istanbul Protocol is not part of the training of border guards, judges, forensic doctors and medical personnel engaged in the treatment of foreigners in detention. Therefore, in the opinion of CAT, Poland should remedy it.
In July 2017, the Regional Court of Przemyśl released a family from the detention centre in Przemyśl who had been detained for 10 months. The family was placed in the detention centre in October 2016, after multiple attempts to apply for asylum at the border crossing point in Medyka on the Ukrainian border. During their stay, the mother was diagnosed with adaptation and depressive disorders related to violence and torture at a police station in her country of origin and detention in Poland which had a negative impact on her and her children. In June 2017 she tried to commit suicide. Although her and her children’s poor mental state was confirmed in successive psychological and psychiatric assessment reports, Border Guards refused to release her and her family. HFHR filed a complaint to the ECtHR on her behalf.[16] On 8 January 2018 the European Court of Human Rights communicated the case of M.Z and Others against Poland.[17] As of March 2021, the case was pending.
On 25 June 2019 District Court in Przemyśl released from the detention centre a rejected asylum seeker who was a victim of torture. The court appointed an independent an expert- a psychologist who examined the applicant. The opinion confirmed that he was a victim of violence and suffered from PTSD. The court stated that the Border Guards should properly assess state of health of the foreigner if he claimed that experienced torture in his country of origin. In addition, court noted that the opinion of the Border Guards’ physicians may be questioned as it cannot be treated as independent expert opinion.[18]
On 2 November 2020, the District Court in Olsztyn released an asylum seeker who was a victim of violence. The court stated that a foreigner had to be released regardless of the reason of placing him in the detention centre; type of the experienced violence; and the place and circumstances foreigner suffered from violance. The court indicated that foreigners cannot be placed in detention centre if there are merely grounds for reasonably suspecting that he/she is a victim of violence. Furthermore, the court shared the concerns raised by SIP regarding the internal algorithm on the basis of which the identification of violence victims is carried out and stated that releasing the foreigners who suffered from violence and whose treatment is not possible in detention centre is against the Polish law.[19] In this case, Border Guard knew that an asylum seeker had a number of gunshot wounds and was in a situation posing a real threat of serious injury or death. However, they denied to release him from detention centre because in their opinion there was no evidence that he was subject to violence. The foreigner’s mental health had deteriorated during 8-month detention,
In two other cases in 2020 and in 2021 the national courts granted compensation for unlawful detention of foreigners. In one of the cases the Regional Court in Olsztyn stated that a person who experienced violence cannot be detained regardless of a form of violence and identity of the perpetrator.[20] In 2021 – in the first case which concerned unlawful detention of the family, the court granted 90,000 PLN (around 19,600 Euros) and in the other which concerned the detention of victim of torture – 39,000 PLN (around 8,500 Euros).
On 18 January 2020, the European Court of Human Rights communicated the case of A.A. against Poland.[21] The case concerned an asylum seeker from Burundi, who came to Poland in January 2019 with a fake Swiss ID. The applicant was detained and placed in a detention centre in Kętrzyn despite of the fact that she was a victim of rape, suffered from that traumatic experience and had permanent scars. During her stay in the guarded centre, she was examined by two psychologists. The first expert, the employee of the detention centre, issued an opinion according to which she did not suffer from PTSD, but she needed psychological treatment. The second psychologist found out that she was a victim of violence and that her emotional state had worsened. In addition, expert recommended psychiatric consultation and treatment. However, the courts prolonged her detention and stated that she represented a risk of absconding and was not diagnosed with PTSD syndrome and that the guarded center provide her with adequate living conditions and medical care. Additionally, she was not allowed to participate in court hearings concerning her appeals against the placement and prolongation of her detention. Moreover, her appeal against the extension of detention was examined only after 50 days. On 29 September 2020 the Court decided to strike the application out of the list of cases due to unilateral declaration that the applicant was deprived of her liberty in breach of Article 5 § 1 (f) of the Convention and that she did not have at her disposal an effective procedure by which she could challenge the lawfulness of her detention, as required by Article 5 § 4 of the Convention. Poland undertook to pay the applicant the amount of EUR 9,000.
Detention of children
According to the law, unaccompanied asylum-seeking children should not be detained,[22] but in practice it happens when there are doubts as to their age or if they were placed in detention as irregular migrants (which is possible under the law) and only then applied for international protection. Unaccompanied children are placed only in a detention centre in Ketrzyn, where adequate rooms (with 15 beds) are separated from the remaining part of the centre.
Asylum-seeking children who are with members of their family can be placed in detention centres together with accompanying adults.[23] At the end of 2020, 9 children were held in detention centre in Kętrzyn, and 101,[24] (including 23 unaccompanied children) in total were detained in 2020 (children in families, in asylum and return procedure).[25] In 2020, children (in asylum and return procedure) stayed in detention centres in average for 70 days. Children in asylum procedure stayed (in the guarded centre of Biała Podlaska) in average for even 137 days (as for 30 June 2020) and for 134 days in Ketrzyn as for 1 January 2020. The shortest stay of families with children in detention centre was for 69 days in Ketrzyn at the end of 2020 and in Biała Podlaska at the beginning of 2020.[26]
In 2018, the policy of protection of children in detention was put in place. The new algorithm was introduced- “Intervention procedures in case of hurting children in guarded centres for aliens”. Within the framework of that policy, the employees of guarded centres were trained in the new rules and identification of a behaviour which should be considered an abuse.[27]
In March 2018 the Commissioner for Child Rights sent a list of recent international recommendations concerning decisions on placing children in detention centers for foreigners to the presidents of courts of appeal (prezesi sądow apelacyjnych). Moreover, the Commissioner underlined that placing children in detention is never in the best interest of a child,[28] always against their fundamental rights and could have a negative impact on their psycho-physical development. In addition, in the Commissioner’s assessment, courts check the possibility of using alternatives to detention in a superficial way. Courts held very often that it is not possible to impose an alternative to detention on the basis that asylum seekers have no place to stay ignoring the fact that asylum seekers have a right to live in open centers for foreigners managed by the Head of the Office for Foreigners.[29]
In December 2018, the Commissioner for Child Rights in his letter to the Prime Minister indicated that all internal SG documents on the detention of children should be lawful and they should not render rules on releasing victims of violence ineffective.
In August 2019, the UN Committee against Torture (CAT) expressed its concern regarding the detention of families with children and unaccompanied minors over 15 years old. According to CAT conditions in detention centres require improvements and Poland should refrain from placing asylum seekers and in particular children in guarded centres for foreigners.[30] In addition, Poland should introduce a principle to the law that detention of asylum-seekers, and in particular children and vulnerable persons, should be a measure of last resort, for as short a period as possible and in facilities appropriate for their status. Furthermore, CAT recommended that Polish authorities refrain from placing asylum seekers and in particular children in guarded centres, and ensure the fast and appropriate identification of vulnerable persons including survivors of torture and ill-treatment, as well as sexual and gender-based violence, and provide them with adequate access to health care and psychological services.[31]
In the opinion of Commissioner for Human Rights, Commissioner for Children Rights,[32] HFHR and other NGOs in Poland, child detention should be forbidden by law in all cases because detention, regardless of children’s migration status and their parents’ decisions, can never be in the best interest of a child, violates the children rights and may have a negative effect on children and their further development.[33]
As of 2020, detention decisions still did not consider the best interest of the child or did not consider the individual situation of the child.[34] When placing a child in a guarded center together with parents, the courts either do not mention children in a justification of the detention decision or justify detention relying on the best interest of the child principle, or limit their assessment to statement that children will be with their parents or detention centres ensure medical and psychological support to foreigners.[35] In addition, the courts place families in guarded centres for a maximum period of time, rather than for the shortest period.[36] Further, courts did not order any further medical or psychological examination and did not interview children but instead relied on the documents presented by the Border Guards. Furthermore, justifications of the courts’ decisions were adapted from the BG application for prolonging the detention. Moreover, some courts treated detention as a form of punishment for crossing the border illegally.[37]
In the NGOs’ assessment, courts examine the possibility of using alternatives to detention in a superficial way. Courts held very often that it is not possible to impose an alternative to detention on the basis that asylum seekers had no place to stay, ignoring the fact that asylum seekers have a right to live in open centers for foreigners managed by the Head of the Office for Foreigners.[38]
In October 2020 the District Court in Olsztyn released an unaccompanied child who applied for asylum in Poland. In this case, Border Guard assumed that his friend (not related) with whom he was travelling was his legal guardian. During his 8 months stay in detention centre in Kętrzyn, Border Guards did examine the relations between these two boys.[39]
On 8 January 2018 the European Court of Human Rights communicated the case of M.Z and Others against Poland.[40] The application was lodged on 25 April 25 2017 and concerned a family with two children from Tajikistan, placed in the detention centre in Przemyśl for more than 8 months. During their detention, the mental state of the applicant was worsening and she suffered from depression and showed symptoms of adjustment disorder. She tried to commit suicide and she was in psychiatric hospital a few times. The applicants complained that their detention resulted in inhuman and degrading treatment; was arbitrary and contrary to the domestic law. Moreover, the situation of children was not taken into account and the length of detention had an impact on their family life. An application for a compensation for unlawful detention of the family was submitted and will be considered by the District Court in Warsaw. The motion was based, among others, on the fact that the family was deprived of liberty, despite of the fact that the applicant’s psychophysical condition indicated that she was a victim of violence and that her health deteriorated because of detention. The application also emphasized that impact on minor children was not investigated properly when deciding on detention.[41] As of March 2021, the case was still pending.
On 10 April 2018, the European Court of Human Rights issued a judgment in the case of Bistieva and others against Poland. The case concerned a family of five, placed in the detention centre in Kętrzyn for almost 6 months. The court ruled that their right to family life was violated and Polish authorities did not assess the impact of the detention on the family, did not consider alternatives to detention and did not view detention as a measure of a last resort. Furthermore, the court held that no sufficient reason was provided to justify the detention and the best interest of the child was not taken into account. The court held that the family was in the detention centre for too long and the preceding asylum procedure concerning a family with children should be conducted faster and with greater diligence. Proceedings of execution of that judgment take place before the CoE Committee of Ministers. In June 2019 the government presented an Action Report on the implementation of the judgment in this case. According to the government, alternatives to detention are taken into account in cases of families with children, detention procedures are standardized, identification system of vulnerable groups is developed and implemented, and asylum cases persons in detention are treated with priority by the asylum authorities. Moreover, the guarded centres are adjusted to the needs of minors, children have access to education and medical care. Additionally, the Bistieva judgment has been translated into Polish, published on the Ministry of Justice website and disseminated among asylum authorities and Border Guard. Hence, Polish government stated that general measures adopted are sufficient and Poland fulfilled its obligations. In the opinion of Border Guard, that judgment does not impact prolongation of a foreigners’ stay in detention centres.[42] On the other hand, according to HFHR, the general measures taken by Poland are not sufficient because the amendments in Polish law are not always applied in practice and Polish courts, placing children in detention centre, do not refer to the child’s best interest and do not treat children as a part of the proceedings, ignoring their presence. Furthermore, the courts rely on the information provided by the Border Guard and disregard independent psychological opinion on the negative impact of detention on children. Detention is not applied as a measure of last resort but rather it is maintained for the maximum period.[43]
On 29 January 2019 the European Court of Human Rights communicated the case R.M. and Others against Poland. The application was lodged on 26 February 2018 and concerned family with three minor children, placed in the detention centre in Kętrzyn for almost eight months. Family was transferred to Poland under Dublin III regulation. Detention was prolonged despite the psychological problems of one of the children. The applicants presented an expert opinion but the courts extended their detention. The applicant complains that the detention of her children, then aged eleven and three years, constituted treatment contrary to Article 3 of the ECHR and her detention was also arbitrary, unjustified and unnecessary. The applicant also stated that placing and continuation of their detention had violated Article 5(4) of the ECHR as she had not received Border Guard motions on prolongation of their detention. Additionally, she complained that detention was a disproportionate interference with their right to respect for their family life.[44] The case is pending as for MAarch 2021.
On 6 September 2019, the Polish government submitted a unilateral declaration in the case of Bilalova against Poland and acknowledged a violation of Article 8 of the ECHR. The case was communicated in 2014 and concerned administrative detention of a mother with five minor children aged between 4 and 10 for three months. The applicant complained that Polish authorities never assesses the child’s best interest and the alternatives to detention were not considered. On 25 March 2020, the European Court of Human Rights published its judgment and found that the detention of the children amounted to a violation of Article 5 (1) (f).[45] In the opinion of the Court, the conditions at the detention centre were similar to penitentiary institution, and therefore the court found the detention unlawful. Additionally, the Court noted that Polish authorities had not treated detention as a measure of last resort and did not assess the possibility of applying alternatives to detention. The Court also found that their stay in the guarded center was too long.[46] In June 2020, the court issued a third judgment on children detention in Poland.[47] The ECtHR found a violation of the right to family life of the child because the Polish authorities did not examine the child’s best interest when deciding on detention of a family, did not treat detention as a measure of last resort and did not examine the possibility of applying alternatives to detention. The Court stated that this violation had occurred even if there were grounds to believe that the family would leave Poland after applying for asylum in Poland.[48]
In November 2019, a complaint to the UN Human Rights Committee was submitted to challenge another case of child detention. It addressed detention of an asylum-seeking family (single father with two children) in the detention centre in Biała Podlaska for 10 months, following their Dublin-transfer to Poland in November 2018. In this case, courts did not properly asses children’s situation and their best interests. The District Court, prolonging the detention of the family, considered only the opinion of Border Guard stating that there were no contradictions for the further children’s’ stay in detention centre. Likewise, Border Guard refused to release the family despite the fact that mental condition of children was deteriorating. On 10 of February 2021 the case was communicated to the Polish government.[49]
[1] Article 89cb Law on Protection.
[2] Information from different branches of the SG in Krosno Odrzańskie and Kętrzyn 2021.
[3] Article 88a(3) Law on Protection.
[4] Article 406(1)(2) Law on Foreigners.
[5] T Dębowczyk and J Oleszkowicz, ‘Praktyka sądowa stosowania detencji cudzoziemców w Polsce’, 38.
[6] Information from different branches of the SG (January-February 2021), information provided by Border Guard Headquarters, 12 February 2021.
[7] SIP, Annual Report 2019, April 2020, available in Polish at: https://bit.ly/3sIooIp.
[8] Information provided by Legal Intervention Association, January-February 2021.
[10] UN Committee against Torture, Concluding observations on the seventh periodic report of Poland, 22-24 July 2019, available at: https://bit.ly/36kr8Qv
[11] SIP, interview, January 2021.
[12] Commissioner for Human Rights, Raport Krajowego Mechanizmu Prewencji Tortur z wizytacji Strzeżonego Ośrodka dla Cudzoziemców w Bialej Podlaskiej, 7 January 2019, available (in Polish) at: http://bit.ly/2BU7ej5, 7
[13] Conference presentation of the representative of the National Mechanism for the Prevention of Torture, 3 December 2018, Milano, information available (in Polish) at: http://bit.ly/2T5YvE7.
[14] Commissioner for Human Rights, Raport Krajowego Mechanizmu Prewencji Tortur z wizytacji Strzeżonego Ośrodka dla Cudzoziemców w Bialej Podlaskiej, 7 January 2019, available (in Polish) at: http://bit.ly/2BU7ej5, 7.
[15] Commissioner for Human Rights, ‘Uwagi końcowe Komitetu Przeciwko Torturom wobec Polski’ available at: https://bit.ly/36jgfhN.
[16] HFHR, ‘Torture victim released after 10 months in immigration custody’, 12 July 2017, available at: http://bit.ly/2ocUY6q.
[17] ECtHR, M.Z. and Others against Poland, Application No 79752/16, lodged on 25 April 2017, available at: https://bit.ly/3aAYhL9.
[18] SIP, ‘Victims of violence in guarded centres -judgment of Regional Court in Przemyśl’, judgment of 25.06.2019, II Kz 91/19, available at: https://bit.ly/2RiD29a.
[19] SIP, “ District court in Olsztyn: a victim of violence may not be put in a detention center”, judgment of 2 November 2020, VII KZ 420/20.
[20] SIP, ‘Victim of violence cannot be deprived of liberty for migration reasons’, judgment of 29.07.2019 II Ko 280/18, available at: https://bit.ly/2Ro8OBT.
[21] ECtHR, “A.A. against Poland” Application, no. 47888/19, lodged on 29 August 2019, available at: https://bit.ly/2TPp6Fp.
[22] Article 88a(3) Law on Protection.
[23] Although it happens in practice that some members of the family are placed in the reception centre and some in the detention centre. See for instance, T. Sieniow, ‘Wnioski z monitoringu wraz z rekomendacjami’, 59.
[24] Information provided by Border Guard Headquarters, 12 February 2021.
[25] Information provided by Border Guard, 5 February 2021.
[26] Information provided by Border Guard, 26 January 2020 and 2 February 2021.
[27] Communication from Poland concerning the case Bistieva and others v. Poland (application No. 75157/14), 14 June 2019, available at: https://bit.ly/2RzjAVU.
[28] Commissioner for Child’s Rights, Wystąpienie do Prezesa Rady Ministrów, 3 December 2018, available (in Polish) at: https://bit.ly/2TCZ45d.
[29] Commissioner for Child’s Rights, 6 March 2018, available in Polish at: https://bit.ly/2GgwX8T.
[30] UN Committee against Torture, Concluding observations on the seventh periodic report of Poland, 22-24 July 2019, available at: https://bit.ly/36qh3BL.
[31] Commissioner for Human Rights, “Uwagi końcowe Komitetu Przeciwko Torturom wobec Polski’ available at: https://bit.ly/2GmKzNP.
[32] Commissioner for Child’s Rights, “Wystąpienie do Prezesa Rady Ministrów, 3 December 2018, available (in Polish) at: https://bit.ly/2TCZ45d.
[33] HFHR, “Rights of persons deprived of liberty-fundamental legal and practical issues. HFHR perspective”, July 2018, available at: https://bit.ly/2SktNaF.
[34] Information provided by HFHR and SIP, February 2021.
[35] HFHR, Poland submissions on ending immigration detention of children to the UN Special Rapporteur on the human Rights of Migrants, May 2020, available at: https://bit.ly/30luthr
[36] HFHR, „Prawa osób pozbawionych wolnośc”i, May 2017, available (in Polish) at: http://bit.ly/2GTFPAX.
[37] HFHR, “Research on the applicability of the best interests of the child principle as the primary consideration in detention decisions as well as the alternatives to detention, Marta Górczyńska, Daniel Witko, 2017.
[38] Commissioner for Child’s Rights, 6 March 2018, available (in Polish) at: https://bit.ly/2GgwX8T.
[39] District Court in Olsztyn, VII KZz 420/20, 30 October 2020.
[40] ECtHR, M.Z. and Others against Poland, Application No 79752/16, lodged on 25 April 2017, available at: https://bit.ly/3aAVOAj.
[41]HFHR, Warsaw court to rule on moral damages for family’s wrongful immigration detention, 6 February 2019, available at: https://bit.ly/3aEq50Y.
[42] Information provided by Border Guard, 5 February 2021.
[43] Information provided by the Helsinki Foundation for Human Rights, 7 January 2021.
[44] ECtHR, M.R and others against Poland, Application No 11247/18, lodged on 26 February 2018, available at: https://bit.ly/30TcvCz.
[45] ECtHR, Dagmara BILALOVA against Poland, Application No 23685/14, lodged on 25 March 2014, available at: https://bit.ly/37kQJu3.
[46] HFHR, Kolejny wyrok ETPCz w sprawie detencji, available at: http://bit.ly/2MMmpDk.
[47] ECtHR, cases of A.B. AND OTHERS against Poland, Applications No 15845/15 and 56300/15, lodged on 4 November 2015, available at: http://bit.ly/3kJFTFm
[48] HFHR, ETPC po raz trzeci stwierdził bezprawność detencji dzieci uchodźców w Polsce, available at: http://bit.ly/3kLijI8/.
[49] HFHR, Pierwsza sprawa z Polski dotycząca detencji cudzoziemców przed Komitetem Praw Człowieka ONZ, available at: http://bit.ly/2MOh8v3.