Detention is ordered by the District Court upon request of the BG. Prolongation of detention is also ordered by the District Court upon request of the BG. Asylum seekers’ stay in the detention centre can be prolonged if before the end of the previous period of detention, the final decision concerning the application for international protection is not issued and the reasons to detain the applicant still exist.[1]
Asylum seekers should be informed of the reasons for their detention, legal remedies and their rights. Information on the reasons for detention is given first in the court, orally, and translated into a language understandable for the asylum applicant. The court has a clear obligation to hear the person concerned before rendering a decision.[2] However, during the migration situation at the Polish -Belarusian border in 2021, the foreigners were not transported to the courts, but they took part in court proceedings online. The foreigners claimed that they did not understand the court procedure and the interpreter who translated the judge.
In all guarded centres, when the person arrives at the centre, there should be a meeting during which a detainee receives information about the centre. Although, in practice, asylum seekers do not understand the reasons for their detention and their legal situation and do not have basic information on their rights and their legal situation, for example concerning the length of their detention[3] which has a very negative impact on the mental state of the foreigners. [4]
The law provides for judicial review of the lawfulness of detention.[5] Asylum seekers can appeal against a District Court ruling to the Regional Court within 7 calendar days from the day the ruling is pronounced. In prolongation cases, it is 7 days from the notification of the ruling to an asylum seeker.[6] In this appeal, the detainee can dispute the grounds for their detention. The Law on Foreigners envisages 7 days for the examination of the appeal.[7]
Asylum seekers receive rulings in the language they should understand; a literal translation of a ruling rendered in Polish. Unfortunately, the information about the deadline for appeal is not translated at all. In practice it means that the foreigners are not aware that they are obliged to submit it in 7-day period.
Due to restricted access to the Internet, phones, printers and scanners, very often the foreigner could not fill in time the appeal. Additionally, in Wędrzyn, the appeals issued by foreigners to the administration of detention centres in time were registered by Border Guards with a delay, which meant that their complaints would not be examined by the court.
The court procedure concerning detention orders is not considered effective. Courts often decide on the detention of asylum seekers without an in-depth analysis of their personal situation, and reasons for detention mentioned in the judgment are indicated very generally – without direct reference to a personal situation. Courts do not conduct evidentiary proceedings on the best interests of the child and torture victims.[8]
In the appeal procedure, detained migrants cannot be present in the court and present their standpoint. In 2021, none of the Regional Courts decided to bring a foreigner for the second instance court hearing.[9] At the same time, foreigners are not informed about the reasons for prolonging their stay in a detention centre by the Border Guard, for example in Kętrzyn and Białystok.[10] The application is not handed over to them, so they cannot present their reasons before the Regional Court will decide on their case. Additionally, foreigners are not informed about the date of the court’s meeting, so they are not able to ask the court to establish a legal representative in their case. Furthermore, the appeal has to be prepared in Polish, so foreigners are dependent on NGOs.
According to SIP, roughly all of the Border Guard’s applications for placing or extending the detention were accepted by the courts in 2020. In only 7 cases out of 132, the courts of second instance overruled or changed the decisions which is about 5.5% of cases.[11] In 2021, 98.83 % of the Border Guard applications to prolong a stay of a foreigner were accepted by the District Court and in 13% of cases the Regional Courts recognised the complaints.[12]
According to SIP, in 2020 foreigners received court decisions on extension of their stay in a detention centre only after the time for which they were placed in centre had expired or just before it expired.[13] In 2021, the translated court decision was only provided on the final day of the detainee’s stay in the detention center, which lowered the chances of filing an effective appeal. In such circumstances, the regional court does not have sufficient time to review the appeal before the end of the detainee’s detention period.[14]
Previously the Border Guard had been requested by the District Court of Biała Podlaska to submit motions for prolongation of detention in due time. In 2021 and 2022, the Border Guard complied with this requirement and motions were submitted at least seven days to two weeks before the end day of detention.[15]
Every person is entitled to compensation and redress for wrongful detention from the State Treasury.[16] In 2020, SIP represented two families and a man whose cases are pending before the Regional Court of Warsaw and Olsztyn.[17] In one of these cases, Court granted compensation to a victim of violence in the amount of 90,000 PLN (around 19,600 Euros). The HFHR had two such cases in the Regional Court of Warsaw (pending as of February 2021) and in Radom. In the latter case, the foreigner, citizen of Congo was detained even though Border Guards identified him as a victim of violence from the very beginning. He was released from the detention centre on the base of the court decision 3 months later. The court granted a compensation of 39,000 PLN (8,500 Euros) based on the documents presented with the compensation motion.[18] The judgment was upheld in February 2021.
[1] Article 89(4) Law on Protection.
[2] Article 88b(1) Law on Protection.
[3] CPT Report 2018, available at: https://bit.ly/2HVZItc, 20. See also: Report NPM, “Situation of foreigners in the guarded centres in times of crisis on the border of Poland and Belarus”, June 2022, available in Polish at: https://bit.ly/3URYZek.
[4] [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.
[5] Article 88b(3) Law on Protection; Article 403(8) Law on Foreigners.
[6] Courts interpret differently the law in this matter – some claim that 7 days should be counted from the day of the pronouncement of the court ruling about placing the foreigner in the detention centre, some that it should be counted from the day the translated ruling is delivered to a foreigner in writing – T. Sieniow, op. cit., 54.
[7] Article 88b(3)Law on Protection; Article 403(8)Law on Foreigners.
[8] Only in one case in Regional Court in Olsztyn appointed a psychologist in a detention case, Information provided by the Regional Court in Olsztyn January 2022.
[9] Information provided by Regional Court in Białystok for SIP, 21 January 2022, Regional Court in Olsztyn, 21 January 2022, Regional Court in Lublin 17 January 2022, in Radom 19 January 2022, in Zielona Góra Warszawa Praga Południe 21 January 2022, Warszawa 21 January 2022,
[10] Information provided by the Association for Legal Intervention, February 2021.
[11] 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.
[12] SIP w działaniu, Annual Report 2021, June 2022, available in Polish: https://bit.ly/3oAq2ia.
[13] 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.
[14] SIP w działaniu, Annual Report 2021, June 2022, available in Polish: https://bit.ly/3oAq2ia.
[15] Information provided by different branches of Border Guard, letter, January -March 2023.
[16] Article 407 Law on Foreigners.
[17] Information provided by the Association for Legal Intervention, February 2021.
[18] Regional Court in Radom, II Ko 23/16.