Detention of vulnerable applicants

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] If the asylum seekers do not belong to these categories, any assistance to reach open centres is provided, regardless of the factual situation they are in.[2]

In 2022, at least 102 (101 in Kętrzyn, and one case in Bialystok) migrants benefited from this form of transport.[3]

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,[4] as under the law, an asylum seeker should be released if further detention constitutes a threat to their life or health.[5] 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.

The provisions are absolute and do not allow for any exceptions and have to be considered separately and independently of each other, but this is not a practice followed by the Border Guards and courts, according to National Prevention Mechanism.[6]

In the opinion of NGOs and the Commissioner for Human Rights, the problem with the identification of victims of torture and violence persists and there is a systematic problem with placing foreigners whose mental and physical condition indicates a possible danger to their life or health.[7] 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.[8] Identification should be conducted before placing in detention and not in detention.

According to the Commissioner for Human Rights and NGOs, the authorities do not always release migrants who suffered the violence in their country of origin[9] or, more recently, at the Polish-Belarusian border.[10] In 2022, an increasing number of individuals are being detained after hospitalization for serious fractures sustained from falling off the wall.

Additionally, the Border Guard continues to apply internal guidelines allowing deprivation of liberty of foreigners who have experienced violence (“Principles of Border Guard’s Procedure with Aliens Requiring Special Treatment.”). In 2019, the Border Guard updated internal guidelines called “Rules of Conduct of the Border Guard towards foreigners requiring special treatment”. Based on these rules, only foreigners who exhibit clear symptoms indicating that they have been subjected to severe forms of violence, and as a result, whose current psychophysical condition is significantly below average, are exempt from being placed in detention. It means that the internal guideline introduces additional restrictions unknown to the Act of Foreigners and limits the prohibition of detention of violent victims to victims of serious forms of violence, who manifest the symptoms of violence and whose psychophysical state is significantly below the norm. Moreover, the updated guideline still does not solve the long-standing problem of the lack of an effective system for the identification of victims of violence.

This guideline limits the need to examine detained third-country nationals only if they:

• Were in need of first aid assistance during the arrest;
• May be in a condition that threatens their life or health;
• Have declared that they require permanent or periodic treatment, the interruption of which would endanger their health or life;
• Are suspected of being carriers of an infectious disease.

In practice, it means that the decision to conduct a medical examination is made by the Border Guard officer. But there are serious doubts about the ability of the Border Guards officers to recognise if a migrant is a violence victim. What is more, this guideline does not indicate the necessity of a possession of medical knowledge by the officer and there is a lack of a determination of the methods and criteria based on which the officer could assess whether a medical examination is necessary.[11] What is more the foreigners who are placed in detention and stated that they had experienced violence during their detention, are not automatically and immediately subjected to a medical examination.[12] Moreover, the guidelines do not introduce a procedure to release immediately the victim of violence from a detention centre. One of the recommendations NPM recommends not to use the guidelines prepared by the Border Guards as they are against the law and international standards, including the Istanbul Protocol. In the opinion of the NPM there should be two different documents introduced: the first one would consider the early identification of the victims of violence and the other one – the migrants’ health assessment concerning the potential risk for detained persons. [13]

In addition, there are detained foreigners who, despite the evident symptoms of PTSD, have not been identified, or the identification process takes a very long time, and their mental state deteriorates due to their detention.[14]

According to the Commissioner for Human Rights, before the application to the court to place or prolong the stay of a foreigner, is submitted by the Border Guard, the physicians only issue an opinion on whether the foreigner’s physical health at the time of the examination allows for a stay in the detention centre. This means that the assessment does not include:

• danger to life and health through the risk of deterioration of the current state of health e.g., emerging or worsening of mental disorders due to re-traumatisation and stress caused by detention;
• the state of mental health, as-no psychological or psychiatric examination is carried out;
• the mental state and the physical state in terms of the presumption of being subjected to violence (as there is no psychological or psychiatric examination or medical evaluation of the injuries and their possible causes).

According to the representatives of a National Prevention Mechanism identification of torture victims is still based on the Border Guards’ internal guidelines which are contrary to the provisions of the law. And in practice, foreigners who should never be placed in detention centres, stay there longer. In one of its recommendations, National Prevention Mechanism calls for the Border Guards to abandon guidelines and create a tool which could effectively identify foreigners with experience of torture or other forms of violence.[15]

Representatives of the Commissioner for Human Rights met foreigners who informed them at the stage of arrest that they had been subjected to violence or who came from a country with a high likelihood of torture and violence and yet were not examined in this regard. At the same time, when applying to the court to order detention, the Border Guard stated that there were no contraindications to their stay in the detention centre. In some cases, individuals that are in good physical condition at the moment of placing in detention may risk a deterioration of their health condition in detention, in some cases connected to somatic conditions connected to their past traumatic experiences.[16]

The Commissioner for Human Rights, in his letter addressed to the Presidents of Regional Courts, expressed his concerns about the cases of foreigners placed in detention who were victims of violence and were in bad psychophysical condition. Furthermore, it was underlined that the level of medical and psychological care was far from sufficient and the contact with psychologists in detention centres was unavailable, which might lead to the deterioration of foreigners’ health through secondary victimization.[17] For example, in the detention centre in Krosno, only one psychologist was hired for 4 hours, once a week who was responsible for 79 foreigners in Krosno Odrzańskie[18] or Czerwony Bór there was only one internal psychologist who was a Border Guard Officer.[19] Despite these deficiencies, the Border Guards in Kętrzyn, Wędrzyn, Biała Podlaska and Lesznowola did not agree to a visit of the NGO who is specialising in providing psychological assistance for foreigners.[20]

The Commissioner pointed out that the number of hired psychologists and physicians in detention centres is insufficient[21] and the psychologists do not know the languages of the migrants which made it difficult or even impossible to establish proper contact with a foreigner. Additionally, it was stated that the serious deficiencies both in psychological and medical care provided to foreigners in detention were diagnosed before the crisis on the Polish-Belarusian border and the overcrowding in detention centers had dramatically worsened the access to psychologists and medical care.[22]

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.[23] Additionally, courts do not accept psychological opinions submitted by independent psychologists (e.g. from NGOs),[24] and they rely on short opinions (very often it is one sentence stating there are no obstacles to prolonging the stay in a guarded centre) of the physician who works in the detention centre.[25]

If medical or psychological opinions, which are in a foreigner’s files, indicate that a foreigner has experienced violence, the documentation is not always handed over to the court. This results in the illegal placement of people who have experienced violence in detention centres and arrests for foreigners, and consequently leads to their secondary traumatization.[26]

In practice, only courts of higher instance call on experts to determine applicants’ mental health state but this happens very rarely (once in 2021).[27] 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 2021, the court appointed the psychologist as an external consultant only in 1 case.[28] In 2020, no expert was appointed in any district or regional court in a total of 777 cases.[29] Additionally, courts do not conduct their own evidentiary proceedings.[30]

In 2018 and in 2022 [31] the Commissioner for Human Rights reminded that the internal guidelines, based on which the identification is performed, do not clearly state that vulnerable persons, once identified, should be immediately released from detention. The Commissioner observes that the lack of accessible treatment and therapy in the detention centres deepens the trauma.[32] Torture survivors stay in detention centres and even if they are identified at a later stage, they are not released from detention.[33]

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,[34] 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.[35]

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.

On 2 November 2020, the Regional 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 violence. 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.[36] 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 releasing 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 the form of violence and identity of the perpetrator.[37] 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 the 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.[38] 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 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 centre 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 the 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,[39] but in practice, it happens that they are placed the detention centres if they are accompanied by unrelated adults[40]  or when there are doubts as to their age or if they were placed in detention as irregular migrants (which is possible under the law[41]) and only then applied for international protection. Asylum-seeking and migrant children who are with members of their families can be placed in detention centres together with accompanying adults.[42]

Families with children were placed in detention centres in Lesznowola, Białystok, Czerwony Bór, Biała Podlaska (two detention centres, one was reconverted from reception to detention centre), Przemyśl, and Kętrzyn in 2022. Families were placed in buildings and containers. The number of containers was insufficient in detention centre in Kętrzyn, which in practice meant that two families could be placed together in one container.[43]

Unaccompanied children are placed only in a detention centre in Kętrzyn, where rooms (with 15 beds) are separated from the remaining part of the centre.

In 2022, 4 unaccompanied children were placed in the detention centre in Krosno. They were released after their identification as minors.[44] According to NGOs, it happens that minors are placed in detention centres as a result of medical examinations of their age.[45]

National Prevention Mechanism assessed critically the age assessment procedure set up in Polish law which is solely conducted in a medical way and in most of the cases only an X-ray of a wrist was performed. In its opinion, this procedure should be comprehensive, also taking into account psychological, developmental or environmental factors. NPM recommends that all evidence, such as photos of identity documents, have to be taken into account in each case of the final age assessment and any doubts have to be resolved in favour a minor. Additionally, the age assessment certificate should include a description of the examination along with the error limit.[46]

According to NGOs, the conditions in detention centres are not adequate for children: in some detention centres there was no children friendly space as playgrounds or social rooms.[47]

Source: Letter of Border Guards in Biała Podlaska, 8 March 2023, in Kętrzyn 9 March 2023, Krosno Odrzańskie 3 March 2023, in Przemyśl 10 March 2023, Headquarters 2023.

In 2021, the number of detained children has increased to 567 in total, whereas in 2020 only 101 children were deprived of their liberty. In the period between January and 31 July 2022, 575 children were placed in detention centres in Poland, out of a total of 2 771 detainees.[49]

The policy of protection of children in detention was put in place, in 2018. The new guidelines were 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 behaviour which should be considered abuse.[50] In 2021 there were 2 cases of abuse against children, including one in Kętrzyn and one in Biała Podlaska.[51] In 2022, no similar cases were reported.

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.[52] 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.[53]

In January 2022 the Commissioner for Human Rights in his letter to the Presidents of the Regional Courts (Prezesów Sądów Okręgowych) expressed, among others, his concerns regarding the detention of families with children. He underlined that none of the detention centres was an appropriate place for children. According to him, detention may have a negative and irreversible impact on development and psychophysical condition of a child, especially with a traumatic migration experience, as these facilities are not suitable places for children. According to the Commissioner Border Guard rarely release children whose mental health deteriorated sharply after being placed in a detention centre and justified the hospitalization.

The Commissioner also pointed out that none of the detention centres guarantees the proper implementation of the children’s constitutional right to education because the content and the form of the didactic and educational activities do not implement a minimal scope of the teaching program.

He also pointed out that in the temporary detention centre in Czerwony Bór, there were no common social rooms for foreigners, which forced them to spend most of the day in the staircase. Additionally, there was a lack of appropriate rooms adapted to the needs of children detained in the facility. Ombudsman noted that in a detention centre in Kętrzyn families were placed in containers that did not have sanitary facilities. The sanitary facilities were located several hundred meters away, which due to weather conditions may endanger their health. Moreover, the number of sanitary containers was too small compared to the number of foreigners placed in the detention centre. It was also noted that two families were placed in one container which did not respect their right to privacy and forced the migrants to separate their parts of living space with sheets and blankets.[54]

In the opinion of the Commissioner for Human Rights, the Commissioner for Children’s Rights,[55] 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.[56]

As of 2022 detention decisions in the courts in Biała Podlaska, Lublin, and Białystok still did not consider the best interest of the child or did not consider the individual situation of the child.[57] When placing a child in a guarded centre together with parents, the courts do not mention children in a justification of the detention decision.[58] In addition, the courts place families in guarded centres for a maximum period of time, rather than for the shortest period.[59] Further, courts did not order any further medical or psychological examination in 2020 and did not interview children, but instead relied on the documents presented by the Border Guards.[60] Children’s detention is ordered automatically, without an individual assessment of their situation and needs. Furthermore, justifications for 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.[61]

In October 2020 the Regional 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 detention in detention centre in Kętrzyn, Border Guards did not examine the relations between these two boys.[62] In this case, the Regional Court in Olsztyn awarded compensation for unjust detention in April 2022.[63]

On 1 March 2023, the Court of Appeals of Warsaw upheld the judgment of the District Court of Warsaw, awarding a compensation in the amount of 72,500 pln to a family detained in guarded centre for 2.5 months. The court underlined that, according to ECtHR’s jurisprudence, a family should be placed in detention only after having conducted an assessment regarding the possibility of applying less severe measure. The Court rule that the initial decision of issuing the detention order ignored the best interest of a child principle, and evaluated that it had caused a deterioration in the family’s mental state, as well as the impossibility for the child to attend school. Additionally, the it was noted that the detainees were stripped naked while being admitted to the detention centre, had limited access to the computer room, their phones were taken from them and they could not move freely in the detention centre.[64]

On 5 April 2023, the European Court of Human Rights communicated the case M.S.T and others v. Poland, lodged on 10 August 2022. The case concerned the detention family with a child for 6 months in the Ketrzyn detention centre, following their Dublin transfer from Germany to Poland. Three applicants complained that their prolonged detention violated article 3 art 5 par 1 (f) and art 5 par. 4 and article 8 of the Convention.[65]

On 23 February 2021, the European Court of Human Rights communicated the case of Z.E. and Others against Poland.[66] The application was lodged on 17 January 2017 and concerned a single mother with four children from Chechnya, victims of domestic violence, placed in the detention centre in Kętrzyn for more than 10 months.[67] The applicants complained that their right to private and family life, freedom from torture, unlawful detention had been violated. The prolonged deprivation of liberty had in fact a negative impact on the psychological state of the children. Moreover, according to Polish law, the woman should not have been placed in a guarded centre at all due to her experience of domestic violence. Other measures could have been applied to the family to ensure the proper course of the proceedings involving them, which did not involve deprivation of liberty. However, this had not been adequately taken into account. The family also claimed that their procedural rights had been violated. They had not received a request to extend their detention and had not been provided with ex officio legal aid, and their case had been considered by the court with considerable delay. The case was struck out of the list on 1 July 2022, as a friendly settlement was reached.

On 8 January 2018, the European Court of Human Rights communicated the case of M.Z. and Others against Poland.[68] The application was lodged on 25 April 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 a 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 considered, and the length of detention had an impact on their family life. An application for compensation for the unlawful detention of the family was submitted and will be considered by the Regional Court in Warsaw. The motion was based, among others, on the fact that the family was deprived of liberty, even though the applicant’s psychophysical condition indicated that she was a victim of violence and that her health deteriorated because of detention. The application also emphasised that the impact on minor children was not investigated properly when deciding on detention.^[69] On 22 July 2021, the case was struck out of the list due to the Government’s declaration concerning the complaints under Article 5 § 1 and 4 and Article 8 of the Convention, as regards the arrangements for ensuring compliance with the undertakings under these provisions. The Court also declared the remainder of the application inadmissible.

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, an 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 the Border Guard. Hence, the Polish government stated that the general measures adopted are sufficient and Poland fulfilled its obligations.

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 the 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.[70]

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. The 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 the prolongation of their detention. Additionally, she complained that detention was a disproportionate interference with their right to respect their family life.[71] On 9 February 2023, ECtHR issued a judgment in this case. The Court found that the 7-month detention of the family with children violated the European Convention on Human Rights, specifically the prohibition of unlawful detention and the right to family life. For the first time, the Court noted that failure to inform foreigners about the planned extension of their detention violated their right to a fair procedure. The ECtHR also admitted that the foreigners concerned by the case should know what information about their life, the legal and psychophysical situation is provided to the court – so that they have a chance to supplement it.[72]

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).[73] 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 centre was too long.[74]

In June 2020, the court issued a third judgment on children’s detention in Poland in cases of A.B.and Others.[75] 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 the 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.[76]

On 3 March 2022, the European Court of Human Rights issued a judgment in the case of Nikoghosyan and others v. Poland. The case concerned a family of six from Armenia and their automatic detention for six-months without an individualised assessment of their particular situation and needs. The applicants complained also that the authorities had automatically relied on the information provided by the border guards. In its judgment, the Court reiterated its finding that the domestic courts which extended the applicants’ detention, did not give sufficiently thorough and individualized consideration to the applicants’ situation. The decision concerning the second applicant, issued on 5 January 2017 by the Biała Podlaska District Court contained a number of errors, such as the fact that the second applicant was referred to using a masculine form or as “the son of … In the opinion of the Court, the decision can be seen as not based on a throughout assessment of the applicants’ individual situation. Additionally, the Court highlighted that the domestic courts ignored the fact that the first applicant was accompanied by his three minor children and did not give any consideration when placing them in detention. Furthermore, the domestic courts did not refer to the fact that, while in detention, the second applicant had given birth to her fourth child.

Court reiterated that the child’s best interests cannot be confined to keeping the family together and that the authorities must take all the necessary steps to limit, as far as possible, the detention of families accompanied by children and effectively preserve the right to family life.

Finally, the Court concluded that in this case, the detention of both the adult and the child applicants, for a period of almost six months, was not a measure of last resort for which no alternative was available, and the national authorities had to act with greater speed and diligence. In this case, the Court ruled there was a violation of Article 5 § 1 (f) of the Convention.[7⁷]

On 10 January 2023, the ECtHR communicated the case V.M. and Others against Poland, no. 40002/22. The case concerns the ongoing detention in Biała Podlaska of an Armenian mother and her two children pending their asylum and deportation proceedings. The mother’s mental health deteriorated heavily after she had a miscarriage while in detention.[78]

In May 2022, Legal Intervention Association submitted the complaint to ECtHR on behalf of the family who had been staying in guarded centres for foreigners for over 6 months. The case concerns a family from Iraq (parents with two children) who crossed the Polish-Belarusian border. The family spent a total of 21 days at the border. At that time, the family was pushed 7 times by the Polish officers across the border. The stay at the border was a traumatic experience for the whole family, in particular, it had a negative impact on the physical and mental health of two children. Additionally, foreigners experienced violence from the Belarusian Border Guard.

After crossing the border, the family was placed in the Guarded Centre for Foreigners in Lesznowola, where they submitted an application for international protection. After 4 months, the family was transferred to the Guarded Centre for Foreigners in Kętrzyn. In total, the family was detained for over 6 months. A long stay in a guarded centre for foreigners had a negative impact on the mental state of the children and deepened their trauma related to the circumstances of crossing the Polish-Belarusian border. One of the children has been struggling with health problems since being placed in detention.

Furthermore, both the Border Guard and the national courts ignored the fact that the family had experienced violence, and therefore, according to Polish law, they should not have been placed in a guarded centre for foreigners at all. The state authorities also failed to take into account the best interests of minor children in any way. Moreover, the placement of migrants in detention was arbitrary, did not constitute a last resort and also violated the right to family life and children’s rights to education. No classes were held in the Guarded Centre for Foreigners in Lesznowola, and foreigners were not allowed to leave the centre (e.g., to attend school).

In August 2022, Legal Intervention Association submitted another complaint to the ECtHR. The case concerns a married couple with an almost 3-year-old child who spent almost 6 months in a guarded centre for foreigners. Despite repeated references to the mother’s poor mental condition and her depressive reaction to the situation, confirmed by a psychological opinion, administrative authorities and courts decided to place and extend the family’s stay in a guarded centre. The repeatedly cited arguments about the obligation to take into account the best interest of a minor child and to examine the impact of detention on the correctness of his further psychophysical development were not taken into account at any stage.

In this case, the child suffered from excessive anxiety and withdrawal as well as sleep disturbance and stomach problems. At the same time, the child was constantly exposed to stress related to the stay in detention, constant supervision of officers, explosions and gunshots caused by the training of Border Guard officers. Alternative measures to detention were not sufficiently considered. Both the mother and the child were not provided with permanent psychological care, even with an independent psychologist. The conditions of the family’s stay in the guarded centre were very difficult for the family, including due to the prison nature of the facility, the excessively limited size of the room, insufficient portions of food, limited opportunities to spend time outdoors, and lack of sufficient protection against the summer heat. There were also numerous violations of procedural rights in the case, mainly due to the failure to exercise the rights of defence and the excessive length of the proceedings.[79]

In November 2019, a complaint to the UN Human Rights Committee was submitted to challenge another case of child detention. It addressed the detention of an asylum-seeking family (a 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, the courts did not properly assess the children’s situation and their best interests. The District Court, prolonging the detention of the family, considered only the opinion of the Border Guard stating that there were no contradictions for the further children’s stay in the detention centre. Likewise, Border Guard refused to release the family even though the mental condition of the children was deteriorating. On 10 February 2021, the case was communicated to the Polish government.[80] The case is still pending as of April 2023.

[1]  Article 89cb Law on Protection.

[2]  Commissioner for Human Rights asks about assistance for foreigners released from guarded centers. Border Guard responds, February 2023, available (PL) at https://bit.ly/3Bvjq8d.  

[3]  BG in Kętrzyn 9 March 2023, BG in Białystok 17 March 2023.

[4] Article 88a(3) Law on Protection.

[5]  Article 406(1)(2) Law on Foreigners.

[6]  [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.

[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.

[8] [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.

[9]  Migration: Key fundamental rights concerns – January 2021- June 2021, FRA Bulletin 2, available in English at https://bit.ly/3OoWmgA, 23.

[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.

[11] [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.

[12] Legal Intervention Association (SIP), Raport SIP w działaniu, Prawa cudzoziemców w Polsce w 2020 r. [Report SIP in action. Rights of foreigners in Poland in 2020], available (PL) at https://bit.ly/3pmM6dS.

[13] [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.

[14] Foreigners in administrative detention. Results of the KMPT monitoring in guarded centres for foreigners in Poland. March 2021. p. 43 available in Polish at https://bit.ly/3L0F5YZ

[15] [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.

[16] Commissioner for Human Rights, Letter to the Regional Courts, 25 January 2022, available at: https://bit.ly/3HnQZJL.

[17] Commissioner for Human Rights, Letter to the Regional Courts, 25 January 2022, available at: https://bit.ly/3HnQZJL.

[18] BG in Krosno Odrzańskie, 3 March 2023.

[19] Preparation of state bodies in case of a mass influx of foreigners to Poland, Supreme Audit Office, NIK, Przygotowanie organów państwa na wypadek masowego napływu cudzoziemców do Polski, available in Polish: https://bit.ly/3mWDvQY,

[20] Information provided by Polish Migration Forum, February 2023.

[21] Commissioner for Human Rights, visit in detention centre in Wędrzyn in January 2022, available at https://bit.ly/3M7oXpx

[22] Commissioner for Human Rights, Letter to the Regional Courts, 25 January 2022, available at: https://bit.ly/3HnQZJL; Commissioner for Human Rights, visit in detention centre in Wędrzyn in January 2022, available at: https://bit.ly/3M7oXpx.

[23] Information provided by Legal Intervention Association, January-February 2023.

[24] Information provided by Legal Intervention Association, HFHR, January 2023.

[25]  Legal Intervention Association (SIP), Raport SIP w działaniu, Prawa cudzoziemców w Polsce w 2020 r. [Report SIP in action. Rights of foreigners in Poland in 2020], available (PL) at: https://bit.ly/3pmM6dS.

[26] Legal Intervention Association (SIP), Raport SIP w działaniu, Prawa cudzoziemców w Polsce w 2020 r. [Report SIP in action. Rights of foreigners in Poland in 2020], available (PL) at: https://bit.ly/3pmM6dS.

[27] UN Committee against Torture, Concluding observations on the seventh periodic report of Poland, 22-24 July 2019, available at: https://bit.ly/36kr8Qv

[28] Information provided by Regional Court in Olsztyn to SIP, 21 January 2022.

[29] Legal Intervention Association (SIP), Raport SIP w działaniu, Prawa cudzoziemców w Polsce w 2020 r. [Report SIP in action. Rights of foreigners in Poland in 2020], available (PL) at https://bit.ly/3pmM6dS.

[30]  SIP, interview, January 2021.

[31] [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.

[32] 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.

[33] Information provided by the HFHR, January 2023.

[34]  CAT (2019) Concluding Observations: Poland CAT/C/POL/CO/7, available at: https://bit.ly/3nx6BXs.

[35]  Commissioner for Human Rights, ‘Uwagi końcowe Komitetu Przeciwko Torturom wobec Polski’ available at: https://bit.ly/36jgfhN.

[36] SIP, “Regional Court in Olsztyn: a victim of violence may not be put in a detention center”, judgment of 2 November 2020, VII KZ 420/20. 

[37]  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.

[38] ECtHR, “A.A. against Poland” Application, no. 47888/19, lodged on 29 August 2019, available at: https://bit.ly/2TPp6Fp.

[39]  Article 88a(3) Law on Protection.

[40] [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, 21.

[41] BG in Krosno Odrzańskie, 3 March 2023.

[42]  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.

[43]  [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.

[44] Information provided by Border Guards in Krosno, 3 March 2023.

[45] Information provided by HFHR, February 2023.

[46] [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.

[47]  Legal Intervention Association (SIP), Raport SIP w działaniu, Prawa cudzoziemców w Polsce w 2021 r. [Report SIP in action. Rights of foreigners in Poland in 2021], available (PL) at https://bit.ly/3pmM6dS.

[48] The numbers for specific centres do not add to the total number of children detained in 2021 because families were transferred between the centres.

[49]  Information from the Border Guards Headquarters, 7 September 2022.

[50] Communication from Poland concerning the case Bistieva and others v. Poland (application No. 75157/14), 14 June 2019, available at: https://bit.ly/2RzjAVU.

[51] Information provided by different Border Guard Units in Białystok, Kętrzyn, Przemyśl, Lesznowola and FIPP, 2022.

[52] UN Committee against Torture, Concluding observations on the seventh periodic report of Poland, 22-24 July 2019, available at: https://bit.ly/36qh3BL.

[53] Commissioner for Human Rights, “Uwagi końcowe Komitetu Przeciwko Torturom wobec Polski’ available at: https://bit.ly/2GmKzNP. The CPT visited 3 detention centres in Poland in 2022 – in Wędrzyn, Biała Podlaska and Białystok, available (EN) at: https://bit.ly/42q5Des. 

[54] Commissioner for Human Rights, Letter to the Regional Courts, 25 January 2022, available at: https://bit.ly/3HnQZJL.

[55] Commissioner for Child’s Rights, “Wystąpienie do Prezesa Rady Ministrów, 3 December 2018, available in Polish at: https://bit.ly/2TCZ45d.

[56] HFHR, “Rights of persons deprived of liberty-fundamental legal and practical issues. HFHR perspective”, July 2018, available at: https://bit.ly/2SktNaF.

[57] Information provided by HFHR and SIP, February 2023.

[58] 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/3VzUmpC; SIP,  Information on the observance of human rights under the UN procedure of the Universal Periodic Review, March 2022, available (EN) at: https://bit.ly/3nx9pDY.

[59] HFHR, „Prawa osób pozbawionych wolności”, 2018, available (PL) at: https://bit.ly/3NDBTqo.

[60] Legal Intervention Association (SIP), Raport SIP w działaniu, Prawa cudzoziemców w Polsce w 2020 r. [Report SIP in action. Rights of foreigners in Poland in 2020], available (PL) at https://bit.ly/3pmM6dS.

[61] 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. “Information on the observance of human rights under the UN procedure of the Universal Periodic Review,” SIP, March 2022, available (EN) at: https://bit.ly/3nx9pDY.

[62] Regional Court in Olsztyn, VII KZz 420/20, 30 October 2020.

[63] SIP, Compensation for wrongful imprisonment of an unaccompanied child, April 2022 Available (PL) at: https://bit.ly/3BhiZOR.

[64] SIP, Compensation for unjustified detention of family of three, victims of violence, 25 April 2023, available at:

[65] ECtHR, M.S.T. and others against Poland, no. 40464/22.

[66] ECtHR, M.Z. and Others against Poland, Application No 79752/16, lodged on 25 April 2017, available at: https://bit.ly/3aAVOAj.

[67]  Z.E. and Others against Poland, Application no. 4457/18 available in English at https://bit.ly/39bqig4.

[68] ECtHR, M.Z. and Others against Poland, Application No 79752/16, lodged on 25 April 2017, available at: https://bit.ly/3aAVOAj.

[69] HFHR, Warsaw court to rule on moral damages for family’s wrongful immigration detention, 6 February 2019, available at: https://bit.ly/3aEq50Y.

[70] Information provided by the Helsinki Foundation for Human Rights, 7 January 2023, available at: https://bit.ly/3oMKrAW.

[71] ECtHR, M.R and others against Poland, Application No 11247/18, lodged on 26 February 2018, available at: https://bit.ly/30TcvCz.

[72] ECtHR, Judgment, 9 February 2023, M.R and others against Poland, available (FR) at: https://bit.ly/3M0Us6s.

[73] ECtHR, Dagmara BILALOVA against Poland, Application No 23685/14, lodged on 25 March 2014, available at: https://bit.ly/37kQJu3.

[74] HFHR, Kolejny wyrok ETPCz w sprawie detencji, available at: http://bit.ly/2MMmpDk.

[75]  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.

[76]  HFHR, ETPC po raz trzeci stwierdził bezprawność detencji dzieci uchodźców w Polsce, available at: http://bit.ly/3kLijI8/.

[77]  ECtHR, CASE OF NIKOGHOSYAN AND OTHERS v. POLAND, Application no. 14743/17, available at: https://bit.ly/36062N3.

[78]  ECtHR , Application no. 40002/22 V.M. and Others against Poland, lodged on 10 August 2022 communicated on 10 January 2023, available (EN) at: https://bit.ly/42a6lg3.

[79]   SIP, We submit a complaint to the ECtHR against unlawful detention of a family with a child, September 2022, available (EN) at: https://bit.ly/42qYOJJ.

[80] HFHR, Pierwsza sprawa z Polski dotycząca detencji cudzoziemców przed Komitetem Praw Człowieka ONZ, available (PL) at: http://bit.ly/2MOh8v3.