Courts cannot invoke considerations of procedural promptness to fail to make key findings regarding the migrant’s experience of violence or the impact of detention on the child’s welfare. Furthermore, when the deprivation of liberty is aimed at gathering information involving migrants, it is necessary to ascertain that the activities are planned in detail and actually carried out.

The Court of Appeal in Warsaw (judgment of March 1, 2023, II AKa 487/21) upheld the judgment of the Regional Court in Warsaw (of September 1, 2021, XVIII Ko 29/21) awarding compensation in the amount of PLN 72,500 to a family of three wrongfully placed in a guarded centre for migrants for a period of 2.5 months. These rulings are important because they clarify when it will be inadmissible to detain migrants in order to gather with them the information on which their refugee claim is based. The rulings also address the important issue of the detention of children and individuals who have experienced violence.

The family sought redress because, as people who had experienced violence, they should not have been placed in detention. Moreover, they had been placed in detention in order to collect information with them regarding their refugee application, and this information had not been collected for long periods of time. Finally, the Courts deciding on detention did not respect the welfare of the migrant child.

The Warsaw Regional Court recalled that, according to the case law of the European Court of Human Rights, “the application of a measure involving deprivation of liberty [of the family with the child – footnote] should take place only after it has been ascertained in practice that no other less severe measure is possible.” In this case, the Courts deciding on detention incorrectly ignored their duty to consider the best interests of the child.

The Regional Court also noted that the migrants had already reported experiencing violence from the moment they were detained, but this had not been investigated by the Court deciding on their detention.

Finally, the Regional Court emphasised that the migrants had been detained in order to gather with them the information on which the application for international protection was based (Article 87(1)(2) of the Act on Foreigners). On the other hand, the man was not questioned until a month after his detention, his wife several months after her release from detention, and the child not at all.

When determining the amount of compensation, the Court took into account the migrants’ deteriorating mental state, the inability of the child to attend school, and the placement in a centre that was associated with imprisonment. The Court also highlighted, inter alia, the fact that the migrants, including the child, were searched with them stripped naked, had restricted access to the computer room, had their phones taken away from them, experienced a language barrier, and were restricted in their ability to leave the building.

This verdict was appealed by the prosecutor, but the Court of Appeal in Warsaw upheld the District Court’s verdict in its entirety. The family thus legally obtained compensation for their unjust detention.

The Court of Appeal in Warsaw noted that the migrants’ testimony was consistent, in line with the psychological opinions presented and the other evidence in the case, and thus fully deserved to be considered reliable. The Court further emphasised that “there is no justification whatsoever for the view […] that only individuals of less wealth could be forced to flee the country.” The Court refers to the inconsistency of the prosecutor’s reasoning regarding the reasons for migrants fleeing the country. “If it is noted that in the grounds of appeal he indicates the high material status of the applicants […], which they did not deny at any stage of the proceedings, and thus it appears completely incomprehensible to find economic reasons for their departure”.

The Court of Appeal recalled that there is an absolute prohibition on the detention of persons alleged to have experienced violence. The migrants reported traumatic experiences in their country of origin, but “despite being informed of such facts, the authorities in charge of the centre did not undertake any actions to verify the claims made by the applicants in any way.” The Court emphasised “that when examining the possibility of placing a migrant in a guarded centre, the competent authorities are obliged to verify all premises in this matter – both positive and negative. Considerations of the promptness of proceedings may not lead to a failure to determine the key findings in a given case, in particular when they concern the absolute placement of migrants in a guarded centre.” The Court of Appeal noted that if the Courts had duly verified the indicated circumstance there would not have been unjust deprivation of liberty of migrants for such a long period.

The Court of Appeal in Warsaw also indicated how Article 87(1)(2) of the Act on Granting Protection to Foreigners on the Territory of the Republic of Poland should be interpreted: “When one compares the abovementioned purpose of the applicants’ stay in the guarded centre [gathering information with their participation, on which the refugee application is based – footnote], with the fact that the only activity conducted was interrogation [of the foreigner – footnote], after which no further activities were undertaken, nor were they planned in detail, […. ], it must be considered that their further stay in the centre in […] was neither necessary nor indispensable.”

The Court of Appeal also criticised the fact that the detention Courts did not address the necessity to protect the best interests of the child and that the proceedings were not conducted with due efficiency and without undue delay.

The judgment of the Court of Appeal in Warsaw can be read HERE.

The family was represented in Court by Małgorzata Jaźwińska, a lawyer collaborating with SIP.