The culpability of a migrant by, for example, leaving Poland illegally does not affect whether he or she is authorised to receive compensation for placement in a guarded centre. Moreover, the mere illegal departure from Poland does not indicate that there is a significant likelihood of flight.
The Supreme Court, in its judgment of April 12, 2023, II KK 149/22, upheld the cassation appeal filed on behalf of our client against the judgment of the Court of Appeal in Warsaw of December 20, 2019, XII Ko 59/18, regarding compensation for wrongful placement in a guarded centre for migrants.
The migrant was placed in detention together with his wife and children after they were returned to Poland from Germany. It was his wife who applied for refugee status on behalf of the family. The migrant was placed in detention together with his wife and children after they were returned to Poland from Germany. It was his wife who applied for refugee status on behalf of the family. Nonetheless, he was placed in a detention centre for approximately seven months in order to gather with him the information on which the asylum application is based, which cannot be gathered without detention.
The Court of Appeal in Warsaw awarded a migrant the sum of PLN 12,000 for 5 months of stay in a guarded centre for foreigners. In contrast, it dismissed the application with regard to declaring the remaining 2 months of detention as unfair, and awarded significantly lower compensation than requested. A cassation was filed with the Supreme Court in this regard.
The Court of Appeal, granting the application in part, indicated that “the first 60 days for the collection of information in the protection case, during which the applicant was interviewed […], were sufficient to achieve the objective. Further extensions of stay, according to the Court, no longer served the purpose of collecting information, but of expelling migrants.” As a result, the Court of Appeal held that “the initially justified placement in a guarded asylum centre became undoubtedly wrongful over time and creating liability for damages on the part of the State Treasury for a period of more than five months.”
The verdict of the Court of Appeal in Warsaw was appealed to the Supreme Court insofar as it did not accept the submitted claim for compensation for wrongful placement in a guarded centre. In the cassation, it was argued that the Court of Appeal incorrectly held that:
- Compensation is due for obviously wrongful deprivation of liberty and not merely wrongful placement in a detention centre;
- The placement of the man in a detention centre for the purpose of gathering with him the information on which the refugee claim is based was not wrongful, despite the fact that no information had been gathered or there were no plans to gather it and, moreover, the existence of a substantial likelihood of flight had not been demonstrated;
- The criterion of minimum remuneration for employment is adequate to determine the amount of harm suffered by the man.
The Supreme Court found that the cassation filed deserved to be upheld and overturned the judgment of the Court of Appeal in Warsaw insofar as it dismissed the compensation claim filed.
The Supreme Court emphasised that “the result of a literal interpretation, according to which only ‘wrongful’ placement in such a centre constitutes grounds for awarding compensation to a migrant placed therein, by no means leads to an unacceptable or absurd result. And it is well known that the results of a literal interpretation, if it does not lead to such consequences, should not be rejected.” The Supreme Court emphasised that placement in a guarded centre for migrants is not linked to “suspicion of a criminal act, does not appear in the Code of Criminal Procedure and there is no reason to attempt to find an analogy with any of the repressive measures governed by the provisions of that Code, especially to the detriment of the migrant.”
The recognition that the mere wrongfulness, rather than manifest wrongfulness, of placement in a guarded centre for migrants entitles one to seek compensation is highly relevant from the perspective of protecting the right to personal liberty of migrants. This means that Courts deciding on the compensation are thus not authorised to examine the possible culpability of migrants or their contribution to being placed in a guarded centre by, for example, leaving Poland illegally.
The Supreme Court also noted that “the mere fact of an illegal border crossing does not indicate a substantial likelihood of escape. […] And a flawed assessment as to the degree of likelihood of fleeing may result in the necessity of declaring the deprivation of liberty of the migrant by placing him/her in a guarded reception centre to be unjust.”
The Supreme Court stressed that the principle of family unity cannot justify deprivation of liberty. It indicated that “the remark in the cassation that there are no grounds for depriving a migrant of his or her liberty on the ground that his or her family members potentially fulfil the conditions justifying their placement in a guarded centre for migrants should be regarded as requiring consideration.”
The man is represented before the ordinary Courts and before the Supreme Court by Małgorzata Jaźwinska, a lawyer cooperating with the Association.
The Supreme Court judgment can be read here.