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Detention of vulnerable persons in international protection proceedings in Poland
This blog aims to demonstrate that the system of self-identification of vulnerable persons in the international protection proceedings, applicable in Poland prior to the transposition of the recast Procedure and Reception Directives, can give rise to breaches of Article 5 of the ECHR. It also examines the possible impact of the post-transposition legal framework in Poland on detention practices for those who are vulnerable.
System of (self-) identification of vulnerable persons
Before the transposition of the recast Procedures and Reception Directives, the system of international protection proceedings in Poland relied almost entirely on self-identification of the vulnerable asylum seeker both in law and in practice. Until 12 November 2015 the Head of the Office for Foreigners was obliged to ensure medical or psychological examinations only to asylum seekers who themselves informed the authority that they were a victim of violence or that they were disabled or if their psychophysical status led persons to believe that they had been a victim of violence (Article 68 of the Law on granting protection to foreigners in the territory of the Republic of Poland.) There was also no definition of a vulnerable person. The mechanism provided in legislation was commonly considered insufficient and ineffective by UNHCR, NGOs and academics alike (AIDA report, Guarantees for vulnerable groups of asylum seekers, p 35).
The result of the lack of systemic approach to identification was that vulnerable asylum seekers were placed in detention centres, notwithstanding that under domestic legislation asylum seekers who have a disability or who are an unaccompanied minor or whose psychophysical state leads persons to believe that they are a victim of violence should not be detained (Article 88 Law on Protection). Moreover, an asylum seeker should be released if further detention constitutes a threat to their life or health (Article 406 section 1 point 2 of the Law on foreigners). The reality was that even persons with diagnosed mental health problems as a result of past events were placed in detention centres and it was difficult to have them released by the court (AIDA p 62 and 66).
Demonstrable failings of identification practice in Poland through the lens of Article 5 ECHR
In this legal regime, applicable prior to the transposition of the recast directives, Ms Bilalova and her five children were detained in one of the detention centres in Poland. She and the children were covered by the application for international protection of her spouse. The proceedings were discontinued once the family left to Germany. After the husband got back to Poland in August 2013 he was placed in a reception centre and the proceedings were reopened. In November 2013 Ms Bilalova and her five children were transferred back from Germany to Poland and the court decided to place them in a detention centre. In January 2014 the Head of the Office for Foreigners refused to grant the applicants any kind of protection and ordered their return. The spouse of Ms Bilalova appealed this decision but in the meantime the District Court prolonged the detention of Ms Bilalova and her five children to secure their return. Ms Bilalova appealed this ruling, stating that further stay in detention impacted negatively upon her mental health condition, providing a psychiatrist opinion to the Court which confirmed that she was victim of domestic violence. However, the Regional Court confirmed the ruling of the first instance. In March the Refugee Board also confirmed the decision refusing international protection to the family. The spouse of Ms Bilalova returned to his country of origin. Ms Bilalova applied again for international protection and wanted to submit a complaint to the Voivodeship Administrative Court in Warsaw but was deported together with her five children before the deadline for the complaint, despite the intervention of the HFHR calling for the respect of their right to court. The legal representative of Ms Bilalova submitted the said complaint against the administrative decisions, stating that her situation as a victim of domestic violence was not taken into account, nor was the police record from Germany concerning mistreatment by her spouse available at the stage of administrative proceedings. The legal representative supported the complaint with the evidence, however the complaint was dismissed, the cassation complaint is still subject to examination before the Supreme Administrative Court. The legal representative also submitted a complaint to the ECtHR. The case was communicated to the government on 13 October 2014. A third party intervention was submitted by ICJ, AIRE Centre and ECRE in this case.
In November 2015 another case concerning the detention of vulnerable persons was brought before the ECtHR - A. B. v Poland and T.K. and S.B. v Poland. It concerns three applicants, a spouse and their child, who in January 2015 submitted applications for international protection at the border crossing point in Terespol, after four unsuccessful attempts. On the same day they were detained, the District Court issued two separate rulings in which it was stated that the first applicant had already twice applied for refugee status in Poland and in January 2015 had attempted to enter Poland on four occasions, without applying for asylum. The court considered that this indicated their intention to abuse international protection proceedings (a ground for detention prior to the transposition of the recast Directives in Poland), although two out of three applicants applied for international protection for the first time. The Regional Court confirmed the ruling of the first instance. In March 2015, after the Head of the Office for Foreigners dismissed the applicants’ application for international protection, the District Court prolonged the detention for a further 90 days. In the appeal against this ruling it was stated that the child had been hospitalised and that detention had had a negative influence on the health condition of one of the spouses. The Regional Court again dismissed their appeal, along with the requests for release submitted in May 2015. After the next extension of detention confirmed by the District Court in June 2015, one of the applicants relied on a psychological report prepared by the NGO International Humanitarian Action, which indicated the high probability that the applicant had been subjected to torture in his country of origin, with no success. Only in October did the Border Guard decide to release the applicants. The reasoning of this decision cited the negative impact of the detention on one of the applicant’s mental health. The case was communicated to the government on 14 June 2016. Just as in Bilalova v. Poland, there is also the issue of detention of children at stake.
National courts jurisprudence
There are also some national courts’ rulings concerning the compensation for unlawful detention of a vulnerable asylum seeker. One of such cases made its way to the Supreme Court. The case concerned a female applicant, a victim of violence who was detained for almost 8 months and then applied for compensation for unlawful detention. The Supreme Court in its judgement from 4 February 2015 quashed the judgements of the courts of the lower instances, which granted only a symbolic amount of the claimed compensation and more importantly found that the detention was not unlawful from the very beginning – because the “psychologist’s observations from the personal interview were not evident enough…to acknowledge the presumption that the applicant was a victim of violence.” The Supreme Court found such a statement unacceptable, since the legislator requires only a presumption and not unequivocal evidence. Moreover the Supreme Court stressed that the available psychologist opinion presented as evidence was completely disregarded by both the courts in the case concerning the compensation and the courts deciding on detention of the applicant beforehand. The Supreme Court found that the courts cannot resign from an expert opinion if establishing a relevant fact for the case requires it and adopt its own view to the contrary.
Conclusion: Legal framework and identification practice post-transposition
The transposition of the recast Directives brought significant changes to the legal framework concerning the identification of vulnerable applicants. Since 13 November 2015 there is a definition of such an applicant and the identification mechanism which should be triggered by the Head of the Office for Foreigners. This authority is obliged to make an assessment of whether a person needs special treatment in the proceedings (in terms of procedural and reception guarantees) and for that purpose can arrange for a medical or psychological examination of the applicant, funded by the state, immediately after the individual submits the application for international protection and at any other time until the proceedings are finished (Article 68 of the Law on granting protection to foreigners in the territory of the Republic of Poland (Journal of Laws 2015 position 1607, after 13 November 2015). Although evaluation of this system rests beyond the scope of this blog article, its impact on detention practice of vulnerable persons seems to be negligiable so far.
The problem which can be easily identified on the basis of the cases described above is that the courts deciding on detention refrain from calling experts to give evidence, notwithstanding that the courts do not have the expertise to establish whether an applicant is a vulnerable person (e.g. the individual was subject to violence). And even if there are psychologic or psychiatric expert opinions available in the case, they are hardly ever taken into account. HFHR reports that the lack of cooperation between the authorities is problematic as there were cases where the Head of the Office for Foreigners qualified a person as vulnerable in international protection proceedings but it did not lead to their release from detention by the Border Guard. Likewise when the Border Guard identifies a person as vulnerable they do not release them if they can be treated in the detention centre. HFHR continues to submit complaints on behalf of vulnerable applicants concerning compensation for unlawful detention, which took place already in 2016.