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Strasbourg Court’s first judgment on immigrant detention in Poland

The European Court of Human Rights has issued the judgment in a case that concerned the placement of a family of foreigners at the guarded immigration centre in Kętrzyn (Bistieva v. Poland, no. 75157/14).

Family arrives at immigration centre
The case concerns a Chechen family, parents with children, who filed an application for the refugee status with the Office for Foreigners. In 2013, Polish authorities rejected the family’s application and decided to remove them from Poland. At that time, the family left for Germany. While staying there, they had another child. In January 2014, the mother and children were surrendered to Poland and placed at the Guarded Centre for Foreigners in Kętrzyn pending deportation. However, the Warmia and Mazury Province Governor issued a decision that the youngest child’s presence in Poland was legal and that the child did not have to leave Poland.

During their placement at the guarded centre, the family submitted another application for the refugee status. As the applicant’s father has received international protection in Poland in separate proceedings based on the evidence similar to that offered by the applicant, the Head of the Office for Foreigners suspended the enforcement of his earlier deportation decision. It was only at the end of June 2014 when the family was released from the centre.

ECtHR: violation of right to family life
Having considered the case of the Bistiev family, the ECtHR found that their right to family life had been violated. The violation, the judgment explains, took the form of Polish authorities’ failure to take into account the best interests of children in making the detention decision, in contravention of the laws such as the UN Convention on the Rights of the Child or the EU Charter of Fundamental Rights.

The very fact that children were placed at a guarded centre together with parents cannot be reconciled with the best interests of those children, the Court argued. The Court further held that Polish authorities should have considered the application of non-custodial measures and that detention should be only the last resort solution. The ECtHR also made note that the period of detention (5 months and 20 days) was too long and that administrative proceedings involving children should be conducted faster and with a higher degree of care.

At the same time, the Court ruled that in respect of the violation of the right to personal liberty and security domestic remedies had not been exhausted. The applicants, the ECtHR argued, should have first submitted a motion for compensation for moral injuries suffered due to the placement at a guarded immigration centre.

“This is the first ECtHR judgment on the placement of children at guarded centres. It recognises the long raised concerns of non-governmental organisations (such as those presented in the HFHR’s and ALI’s report Still Behind Bars), according to which the best interests of the child hasn’t been really taken into account in decisions on the placement of families at guarded immigration centres”, said Jacek Białas, HFHR’s lawyer who represented the applicants before the Strasbourg Court. “I hope this decision will influence the relevant practices of Polish authorities and that from now on children’s best interests will always be considered in cases like this one”, he added.

Compensation for moral injury suffered due to immigration detention
Unfortunately, there are other concerns that are raised by the judgment itself as the ECtHR ruled that persons aggrieved by unjustified immigration detention need to bring an action for compensation for moral injuries before domestic courts. It is evident from the HFHR’s experience that ECtHR decisions on immigration detention are not applied by Polish courts, which substantially lowers the chances of being awarded compensation for a moral injury resulting from a violation of the Convention in domestic proceedings. This, in turn, will significantly prolong the time needed for obtaining a Strasbourg judgment. What is more, unlawfully detained foreign nationals may be deported to their countries of origin already before they can bring an action before a domestic court. Being unable to appear in person, foreigners may face difficulties in, or even be prevented from, effectively asserting their claims for compensation before Polish courts.

The judgment can be accessed here.

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