Supreme Court rules on unlawful placement in guarded immigration centre

The Supreme Court has published a judgment in the case concerning compensation for moral injuries suffered by a family of refugees unlawfully placed at the Guarded Centre for Foreigners in Przemyśl.

Unlawful detention

The family in question, a mother with two children, are victims of violence in their country of origin. During their stay in the guarded centre, the family submitted an application for the grant of international protection. Despite the fact that the family informed authorities about having been victims of violence, they were not properly assessed and immediately released from the guarded centre, which is a clear violation of law.

In light of the above, after the foreigners were finally released from the guarded centre lawyers of the HFHR brought a motion for compensation for moral injuries caused by unlawful detention. During the proceedings both the Regional Court in Warsaw and Court of Appeal in Warsaw awarded insufficient amounts of the compensation, failing to consider all circumstances of the case, including the fact that one of the children has been hit by another foreigner. In connection with the above, the counsel for the foreigners submitted a complaint in cassation to the Supreme Court, invoking also procedural errors. The Supreme Court reversed the judgement of the Court of Appeal in Warsaw and remanded the case for reconsideration.

Expert’s opinion is necessary, not that of Border Guard

In the statement of reasons, the Supreme Court held that a court that determines how unlawful detention affects the mental state of a foreigner is obliged to call expert witnesses and may not make any such findings of fact on its own.

According to the HFHR, this statement should also apply to proceedings for the placement of a foreigner at a guarded centre. The court should always call an expert witness in order to determine the status of a foreigner who is likely to have been a victim of violence or is a person with a disability, especially when there are psychological evaluation reports prepared outside the criminal proceedings or if the very appearance of a foreigner suggests medical problems. In such a situation, a foreigner may not be placed at a guarded centre. Nevertheless, courts often order the placement of foreigners in guarded centres based exclusively on Border Guard documents that confirm the absence of medical counter indications to detention, even if opinions drafted by psychologies from non-governmental organisations show conclusions to the contrary.

ECtHR standards

In the statement of reasons the Supreme Court also stated, relying on the jurisprudence of the European Court of Human Rights, that foreigners placed at a guarded centre are under the full control of the Polish state and this is why the state is responsible for their safety and health. Therefore, it is the state who is responsible for violence inflicted on a child placement at a guarded centre by another foreigner.

The HFHR participates in the case as a community organisation.