A migrant should be set free regardless of the reason why they have been placed in a detention centre, the type of violence to which they fell prey, and the exact place where and circumstances under which they suffered violence against them.
The District Court in Olsztyn released our client from a guarded detention centre for foreigners in view of them having experienced violence (decision VII Kz 420/20 of the District Court in Olsztyn of 2nd November 2020).
The migrant in question claimed to have experienced violence and threats in their home country and that they have been shot at and wounded with bullets on several occasions. They did have a number of gunshot wounds on their body and displayed considerable scarring resulting from operations. The Border Guard did acknowledge that the migrant has indeed been shot and has been in a situation posing a real threat of serious injury or death. In spite of that, the Border Guard concluded that there were no obvious signs of the foreigner having been subjected to serious violence and, consequently, refused to set them free.
In the course of their eight-month detention at a guarded detention centre, the migrant’s mental health had considerably deteriorated. They showed signs of adjustment disorders, mainly in the form of depression-related stress due to having been deprived of their freedom for an extended period of time.
The District Court, following the reasoning of the Supreme Court expressed in decision III KK 33/14, stated that
legally speaking, a ban on placing a foreigner in a detention centre should apply even if there are merely grounds for reasonably suspecting that they are a victim of violence – it is not necessary to ‘unambiguously prove’ such circumstances.
The District Court added that
consequently, regardless of the reason why they were placed in a detention centre, the type of violence to which they fell prey, and the exact place where and circumstances under which they suffered violence against them, their detention should cease.
The District Court thus acknowledged concerns raised by the Association for Legal Intervention (SIP) with regard to certain deficiencies of an algorithm developed by the Headquarters of the Border Guard for dealing with migrants requiring a special approach. The current line of action – that is, only releasing those migrants who, in the Border Guard’s opinion, have suffered from serious violence and whose treatment in a guarded detention centre would not be possible – is inconsistent with the law in force.
The District Court did not acknowledge claims that the procedural rights of the migrant in question have been infringed.
The migrant in question was represented by Małgorzata Jaźwińska, an attorney collaborating with the Association for Legal Intervention (SIP).
The decision is available below: