Judicial review of the detention order

Poland

Country Report: Judicial review of the detention order Last updated: 30/11/20

Author

Independent

Detention is ordered by the District Court upon request of the SG. Prolongation of the detention is also ordered by the District Court upon request of the SG. Asylum seekers stay in the detention centre can be prolonged if before the end of the previous period of the 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 are informed of the reasons of their detention, legal remedies and their rights. Information on the reasons for detention is given first in the court, orally, 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] In all guarded centres, when the person arrives at the centre, there is a meeting during which a detainee receives information about the centre, although, in practice asylum seekers do not understand the reasons of their detention and have basic information on their rights.[3] For example it has happened that asylum seekers supported the SG requests to detain them which is surprising, especially in the light of the fact that later in some of these cases foreigners initiated appeal proceedings. In one of such cases, during the detention hearing a foreigner reportedly supported the SG request to detain him despite the fact that his child had epilepsy.[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. Asylum seekers receive rulings in the language they understand; a literal translation of a ruling rendered in Polish. The Law on Foreigners envisages 7 days for the examination of the appeal.[7]

Some courts – although they have such a legal obligation – do not provide information about the right to a legal representative, whose services are free of charge if foreigners prove that they do not have any financial means. In 2017 many foreigners complained that they did not have money to hire a lawyer to represent them in the court.[8]

The court procedure concerning detention orders is not considered effective. Courts often decide on 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.

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 2019 the Border Guard complied with this requirement and motions were submitted at least two weeks before the end day of detention.[9]

Every person is entitled to compensation and redress for wrongful detention from the State Treasury.[10]. In 2018 SIP represented two families and a man whose cases are pending before the District Court of Warsaw and Olsztyn.[11] In one of these cases, Court granted a compensation to the victim of violence in the amount of 20 000 PLN. The HFHR has two such cases in the District Court of Warsaw (pending as of April 2020) and in Radom. In the latter case, the foreigner, citizen of Congo was detained despite the fact that Border Guards identified him as a victim of violence from the very beginning. He was released from detention centre on the base of the court decision 3 months later. The court granted a compensation of 39,000 PLN (8,500 Euro) based on the documents presented with the compensation motion. [12]

In the appeal procedure, foreigners do not know that they can ask the court to be present during examinations of their appeal against detention, so they cannot present their standpoint. At the same time, foreigners are not informed about the reasons for prolonging their stay in a detention centre by the Border Guard, such as for example in Ketrzyn.[13] Furthermore, the appeal has to be prepared in Polish, so foreigners are dependent on NGOs which provide limited legal assistance due to limited access to funds. Courts do not conduct evidentiary proceedings on best interests of the child and on torture victims.

 


[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.

[4] M. Górczyńska, D. Witko, Reseach 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, UNHCR, 2017 available at: https://bit.ly/2U7SbMr.

[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] CPT Report 2018, available at: https://bit.ly/2HVZItc, 5.

[9] Border Guard Biała Podlaska, letter, 26 February 2020.

[10]Article 407 Law on Foreigners.

[11] Information provided by the Association for Legal Intervention, 4 February 2019.

[12]Regional Court in Radom, II Ko 23/16

[13]Information provided by the Association for Legal Intervention, 31 January 2019.

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation