The law provides for 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 happens rarely in practice. Most asylum seekers are not aware of this possibility and in practice they 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, the application on prolonging their stay in detention is not delivered to them.
In the regional courts in Lublin, Zielona Góra, Białystok and Przemyśl no attorney was appointed in the cases of foreigners in 2020 and positive outcome of complains ranged from 0 to approx. 3.5%.[5]
As a result, they are dependent on legal assistance granted by NGO lawyers, most of whom are not entitled to represent them before courts. Due to limited funds from AMIF, since 2015 all NGOs have limited their activities and do not visit detention centres on a regular basis to provide such assistance whenever needed. This has not been improved in 2021. Situation even worsened due to situation at the Polish-Belarusian Border.
The law foresees a state legal aid system which includes lawyers’ visits to the detention centres if necessary and it concerns only preparing the appeal of a negative asylum decision. In practice only some foreigners decide to look for a legal representative, i.e., an advocate or a legal advisor.
[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.