The law provides access to free legal assistance for the review of detention before the courts, but it is hardly ever exercised in practice.[1] Asylum seekers can ask the court to grant them free legal assistance, if they duly prove that they are not able to bear the costs of legal assistance, without harm to the necessary maintenance of themselves and their families.[2] The court has a clear obligation to inform asylum seekers in a language understandable to them about the right to ask for legal assistance.[3] However, this rarely happens in practice, as most asylum seekers are not aware of this possibility and are not represented by a legal advisor in the District or Regional Court.
In addition, their right to defence is not observed when the court decides on the extension of their detention. Foreigners are either not informed about the day of the court proceedings or they are informed (in Polish) on the short notice – on the same day. As a result, they are unable to submit a request for the lawyer on time.[4] Moreover, they generally do not receive a copy of the application on prolonging their stay in detention.
In the regional courts in Lublin, Zielona Góra, Białystok and Przemyśl no attorney was appointed for migration-related cases in 2020, and positive outcomes of complaints ranged from 0 to approx. 3.5%[5] and 13% in 2021 (there are no data from Regional Court in Białystok). In 98.83% of cases the District Court approved the Border Guards’ application for a prolongation of detention.[6]
As a result, they are dependent on legal assistance granted by NGO lawyers, most of whom are not entitled to represent them in the courts.
The law foresees a state legal aid system only to prepare the appeal to a negative asylum decision. In practice, only some foreigners decide to look for a legal representative, i.e., an advocate or a legal advisor.
Additionally, the right to have access to a translator was also not observed in 2021. According to the NMP, translators did not translate the foreigners’ documents in detail. The explanation provided to foreigners was limited to the importance of signing documents, with no information provided on the content of statements or other documents. This practice was also observed during court hearings regarding the placement of foreigners in detention centres. [7]
[1] Articles 78 and 87a Law of 6 June 1997 on the Code of Criminal Procedure, available at: http://bit.ly/1UcUEO3.
[2] Article 78 and 87a Code of Criminal Procedure.
[3] Article 88b(4) Law on Protection.
[4] SIP, Annual Report 2019, April 2020, available in Polish at: https://bit.ly/3sIooIp.
[5] 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. SIP w działaniu, Annual Report 2021, June 2022, available in Polish: https://bit.ly/3oAq2ia.
[6] SIP w działaniu, Annual Report 2021, June 2022, available in Polish: https://bit.ly/3oAq2ia.
[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.