Poland – Supreme Court, 2 March 2017 r., S.C., Z.C. and F.C., syg. Akt II KK 358/16

Country of Decision:
Country of Applicant:
Date of Decision:
02-03-2017
Citation:
Akt II KK 358/16
Court Name:
Supreme Court
National / Other Legislative Provisions:
Poland - Law of 12 December 2013 on Foreigners: art. 407 ust. 1
Poland - Law of 27 September 2013 on the Amendment of the Code of Criminal Procedure Law
art. 7 k.p.k.
art. 118 k.p.k
art. 193 k.p.k.
art. 201 k.p.k
art. 407 k.p.k.
art. 410 k.p.k.
art. 424 k.p.k.
art. 433 k.p.k.
art. 437 k.p.k.
art. 438 k.p.k
art. 457 k.p.k.
art. 552a § 1 k.p.k.
art. 552 k.p.k.
art. 523 k.p.k.
art. 554 § 2 k.p.k.
Poland - Art. 445 of the Civil Code
Printer-friendly versionPrinter-friendly version
Headnote: 

The application of S.C. and her minor children Z.C. and F.C. related to the cassation of an Appeal Court judgement regarding compensation for the harm they suffered as a result of an indisputably unjust decision to place the Applicants in a Guarded Detention Centre for Foreigners. The Supreme Court reversed the challenged judgement and passed the case to the Appeal Court for re-consideration. 

Facts: 

Pakistani nationals, S.C. and her minor children Z.C. and L.C., were unjustly placed in a Guarded Detention Centre for Foreigners for a period between 12 December 2012 and 12 February 2013 i.e. 63 days.

On 22 October 2015, on the basis of the criminal procedure code regulations (c.p.c.) regarding compensation for unjust sentencing, remand or detention, the District Court in […] considered the application for compensation, awarding 1,000 PLN to each Applicant.

The Applicants’ legal representative appealed this ruling, challenging the part of the decision in which the court of I instance dismissed the application for compensation for amounts exceeding 1,000 PLN. The appeal alleged a breach of procedure which affected the substance of the ruling through:

-          exercising an arbitrary instead of a discretionary evaluation of evidence;

-          not considering the entirety of the gathered evidence;  

-          errors in findings of fact which formed the basis of the ruling;

-          a breach of the provisions of article 407 of the Law on Foreigners regarding a failure to consider the best interests of a child through arbitrarily depriving them of liberty.

According to the appeal, the above violations related, among other factors, to the court’s erroneous belief that the compensation figure sought was blatantly excessive, the court awarding figures which represented inadequate compensation for indisputably unjust placement in a Guarded Detention Centre and to an unreasonable claim that being granted refugee status and the associated benefits amount to compensation for the unjust deprivation of liberty. The appeal further alleged that the court failed to consider the individual circumstances of each Applicant and that it mistakenly failed to recognize the causal relationship between the Applicants’ time in detention and the incident during which S.C.’s son was struck by another foreigner. The legal representative stressed that the amount awarded was inadequate in comparison to amounts awarded by courts in comparable cases and he applied to amend the challenged decision and award each applicant the figure of 35,000 PLN plus statutory interest.

On 22 June 2016 the Appeal Court in […] amended the challenged decision awarding an additional 9,000 PLN to S.C. and 14,000 to Z.C. and F.C. each, on top of their initial compensation. The I instance decision remained in force in all other aspects.

The legal representative made a cassation appeal regarding the aspect of the judgment of the Appeal Court which related to upholding the ruling of the court of I instance. 

Decision & Reasoning: 

The Supreme Court (SC) considered the cassation arguments as partially valid and reversed the challenged Appeal Court decision. Despite reservations regarding the wording of the cassation appeal, the court considered it sufficient to find that it contained allegations of an insufficient instance control and a flagrant violation of legal provisions.

The SC noted that, according to the absolute obligation contained in art. 433 c.p.c., the Appeal Court was obliged to consider each allegation contained in the appeal and that it should have provided valid reasons for dismissing any part of the appeal. According to art. 457 c.p.c., the Appeal Court was also under an obligation to fully present its reasoning for its judgment. With reference to the “transfer effect” the SC relied on past judgements which confirmed a party’s right to make a cassation appeal both due to blatant legal defects of an appeal judgement and due to the defects in the ruling of the first instance court, which were not revised in the course of instance control.

According to art. 7 c.p.c. the Appeal Court was obliged to perform a discretionary evaluation of evidence, instead of an arbitrary evaluation, therefore it had no right to reject all presented expert opinions and take its own differing stance. An analysis of the reasons for the upheld I instance judgement proves that the court fully rejected the expert opinions of child specialists, considering them to be incomplete and in contradiction with the opinions of the specialists charged with considering the situation of the adult Applicant. The SC noted that the District Court had a right to consider the opinions of the expert child psychologist and child psychiatrist unconvincing, however it should then thoroughly justify its position and proceed according to provisions regarding the evaluation of expert evidence. The SC also criticised the quality of the argumentation used by the District Court in relation to this matter and the result according to which, by rejecting the entirety of the expert opinions of the child specialists, the court itself acted as an expert witness, which it was not entitled to do.

The SC found that the Appeal Court failed to consider the allegation, raised in the appeal, regarding the District Court’s failure to consider expert opinions in relation to the minors Z.C. and L.C., through which the court committed a flagrant violation of the provisions in art. 433 c.p.c. and 457 c.p.c.. The SC held that, while re-considering the appeal, the Appeal Court should establish, using expert opinions, whether and to what extent, considering the children’s age, their experiences in the period before their placement in the Detention Centre for Foreigners had an effect on their psychological wellbeing.

It has been noted that the court of I instance considered a lack of a causal relationship between the placement of the Applicant and her children in the Guarded Detention Centre and the fact that her son had been struck by another foreigner. Consequently the court failed to consider the delay in the child obtaining medical assistance and the stress related to his stay in the hospital. The SC stressed that, as the three Applicants were deprived of their liberty at the time of the incident, they were within the power and under the full control of the state of Poland, which was therefore fully and directly responsible for their safety and wellbeing. This obligation has notably been confirmed in ECtHR jurisprudence which points to a requirement for the introduction of measures which ensure that persons remaining under a state’s jurisdiction are not subject to torture or inhumane or degrading treatment also at the hands of private individuals. The SC considered that the Appeal Court failed to meet the requirements of appropriate control, by failing to consider the abovementioned decision of the I instance court.

The SC also mentioned the Appeal Court’s failure to consider the complaint regarding the Regional Court’s position that the Applicants’ receipt of refugee status and related benefits presented a certain degree of compensation for the harm which they suffered due to being unjustly placed in a Guarded Detention Facility. The SC “did not rule on the above matter” only reversing the challenged ruling. The SC merely considered that, if the Appeal Court sides with the Applicants on this issue, it would then be bound to increase the compensation figures, as the arguments of the court of I instance confirm that its position on the above matter influenced the award of low compensation figures. 

The Appeal Court was also held to have failed to consider the allegation that the court of I instance did not consider the individual circumstances of the applicants, including the Applicant’s particular feeling of harm due to her status as a single mother, responsible for the fate of her two minor children. The SC noted that the Appeal Court not only failed to exercise instance control regarding the abovementioned matter, but that it also made an arbitrary decision to differentiate the Applicants’ compensation award amounts based solely on the criterion of their age. In the event of the Appeal Court again finding that a differentiation of award amounts is necessary, the SC obliged the court to provide material arguments justifying such a decision. The SC however accepted the suggestion that the age of the juvenile Applicants and the status of a “single mother” may have exacerbated the Applicants’ sense of injustice. 

Outcome: 

Cassation appeal granted – the case has been passed to the Appeal Court for re-consideration on appeal. 

Subsequent Proceedings : 

The Appeal Court was ordered to consider all of the allegations raised in the initial appeal according to the recommendations of the SC.

On 17 May 2017 the Appeal Court reversed the initial judgement of the Regional Court in P. and passed the case for re-consideration (Sygn. akt II AKa 130/17).

Observations/Comments: 

The SC did not make an unequivocal ruling on the controversial suggestion that being granted refugee status and receiving related benefits “also represents a certain degree of compensation for the harm caused by the unjust placement in a guarded detention centre for foreigners”. The SC merely noted that the Appeal Court failed to consider the complaint relating to this finding, while passing this matter to be re-considered on appeal. As the Appeal Court also reversed the District Court’s decision, passing it for re-consideration, at present the matter of treating refugee status as a form of compensation for unjust detention in a guarded facility remains undecided. 

 

This case summary was written by Brenda Efurhievwe, BPTC student at BPP University. 

Case Law Cited: 

ECtHR - M.C. v Poland, 3 March 2015 r., 2369/09

Poland - Supreme Court judgement of 28 November 1996, III KKN 148/96, OSNKW 1997, z. 1 – 2, poz. 12

Poland - Judgement of 6 June 2006, V KK 413/05, OSNKW 2006, z. 7 - 8, poz. 76

Poland - Judgement of 28 November 2007, II KK 172/07, Lex Nr 351223

Poland - Judgement of 18 October 2007, II KK 212/07, Lex Nr 346241

Poland - Judgement of 13 September 2005, V KK 51/05, R-OSNKW 2005, poz. 1654

Poland - Judgement of 14 February 2013, II KK 127/12, Lex Nr 1277698

Poland - Supreme Court judgement of 15 April 2009, III KK 381/08, Lex Nr 512100

Poland - Supreme Court decision of 10 October 2007, III KK 120/07, Lex Nr 322853

Poland - Supreme Court decision of 2 August 2006, II KK 238/05, Lex Nr 193046

Poland - Supreme Court judgement of 16 January 2008, V KK 97/07, Lex Nr 361671

Poland - Supreme Court judgement of 20 September 2007, III KK 186/07, Lex Nr 323687

Poland - Supreme Court judgement of 22 November 2006, V KK 52/06, Lex Nr 202273

Poland - Supreme Court judgement of 11 March 1993, III KRN 21/93, Lex Nr 20589

Poland - Supreme Court decision of 22 November 2016, IV KK 357/16, Lex Nr 2169501

ECtHR - Tomaszewscy v Poland, 15 April 2014, 8933/05, Lex Nr 1445086

Poland - Supreme Court judgement of 6 May 1983, IV KR 74/83, OSNKW 1983, z. 12, poz. 102

Poland - Supreme Court judgement of 28 August 2013, V KK 80/13, Lex Nr 1381068

Poland - Supreme Court judgement of 13 May 1986, IV KR 118/86, OSNPG 1987, Nr 2, poz. 25

Poland - Supreme Court judgement of 23 November 1977, V KR 180/77, OSNPG 1978, Nr 4, poz. 50

Poland - Supreme Court decision of 27 July 2016, V KK 25/16, Lex Nr 2108096

Poland - Supreme Court judgement of 3 March 1981, IV KR 271/80, OSNPG 1981, Nr8-9, poz. 101

Poland - Supreme Court judgement of 20 May 1984, I KR 102/84, OSNPG 1984, Nr 12, poz. 112

Poland - Supreme Court judgement of 3 May 1982, I KR 319/81, OSNPG 1982, Nr 11, poz. 149

Poland - Supreme Court judgement of 3 March 1981, IV KR 271/80, OSNPG 1981, Nr 8 – 9, poz. 101

Poland - Supreme Court judgement of 14 November 2008, V KK 137/08, Lex Nr 477890

Poland - Supreme Court decision of 17 May 2007, II KK 331/06, Lex Nr 301131

ECtHR - Wenerski v Poland, 20 January 2009, 4436N/A9/02 Lex Nr 478318

Poland - Judgement of 12 October 2006, IV KK 247/06, R-OSNKW 2006, poz. 1961