Poland - Judgement of the Supreme Court from 4 Feb 2015 no III KK 33/14 quashing the judgements of the Court of Appeal and the Regional Court (in a case concerning the compensation for unlawful detention)

Country of Decision:
Country of Applicant:
Date of Decision:
04-02-2015
Citation:
III KK 33/14
Court Name:
Supreme Court
National / Other Legislative Provisions:
Poland - Article 103 and 107 Section 1 of the Law of 13 June on Foreigners
Poland - Article 88 Section 2 of the Law of 13 June 2003 on granting protection to foreigners in the territory of the Republic of Poland
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Headnote: 

There is no basis to differentiate between the treatment of asylum seekers depending on whether they applied for asylum straight after crossing the border or after being placed in a detention centre. If a third country national applied for asylum from a detention centre, they can be released on the basis of article 88 section 2 of the Law on granting protection to foreigners in the territory of Poland, which states that asylum seekers shall not be placed in a detention centre, if there is a presumption that they were subject to violence.

In case of a presumption that a person is a victim of violence there is no need for “unequivocal evidence” for this legal condition.

The court cannot resign from an expert opinion if establishing a relevant fact for the case requires it. As a result the court cannot reject all the opinions or conclusions of the only opinion in the case and adopt its own view to the contrary. If the Court of Appeal had any doubts regarding the available psychologist’s opinion they should have requested the psychologist to complete the opinion or called a new expert.

Facts: 

The applicant claimed compensation of 40000 PLN for unlawful detention before a civil court. According to the applicant, her detention was unlawful from the moment she applied for asylum from a detention centre when she declared she was a victim of violence (ie. from 15.06.2011 until her release on 03.02.2012).

The Court of the first instance (Regional Court, Sąd Okręgowy) granted her complaint, but stated that the detention was unlawful from 02.12.2011, ie. from the moment her detention was prolonged by the respective district court. The Court believed that because of its wording article 88 section 2 of the Law on granting protection to foreigners in the territory of Poland applies only to foreigners who are asylum applicants and then are subject to detention and not to third country nationals who applied for asylum after being placed in detention. The Court observed that in the beginning the applicant did not admit that she was a victim of violence. According to the medical opinion from 07.06.2011 she was able to stay in detention. Although according to the psychologist’s opinion from 21.07.2011 it could not have been excluded that the applicant was subject to sexual violence, at that time there were no signs that the detention may pose a threat to her life or health. Such a conclusion was only possible at the time of prolonging the detention, ie. on 02.12.2011 and the detention was unlawful from this moment on.

The applicant lodged an appeal against this judgement. The Court of Appeal found her appeal manifestly unfounded. The Court of Appeal criticized the interpretation of article 88 sec. 2 proposed by the court of the first instance, stating that such an understanding would lead to differentiation of the legal situation of victims of violence depending on whether they applied for asylum when crossing the border or from a detention centre. However, the Court of Appeal agreed that the psychologist’s opinion gave no basis to acknowledge the existence of circumstances justifying the presumption underlined in article 88 sec. 2.

In the cassation complaint to the Supreme Court the applicant asked to quash the judgement of the Court of Appeal and to request reconsideration of the case.

Decision & Reasoning: 

The Supreme Court ruled that there can be no differentiation in the treatment of asylum seekers depending on whether they applied for asylum straight after crossing the border or after being placed in a detention centre. If a foreigner applied for asylum from a detention centre, they can be released on the basis of article 88 section 2 of the Law on granting protection to foreigners in the territory of Poland, which states that asylum seekers shall not be placed in a detention centre, if there is a presumption that they were subject to violence.

The conclusions of the psychologist’s opinion from 21.07.2011 pointed out that the presumption under article 88 sec 2 of the cited law had arisen. Of course, the content of the opinion might not have been enough to establish it without any doubt, especially since the psychologist mentioned the need for further diagnosis. However, the statement of the Court of Appeal that “the psychologist’s observations were not evident enough in order to acknowledge the presumption that the applicant was a victim of violence” is unacceptable. In case of this presumption there is no need for “unequivocal evidence”, since the legislator only requires a presumption. 

The court cannot resign from an expert opinion if establishing a relevant fact for the case requires it. As a result the court cannot reject all the opinions or conclusions of the only opinion in the case and adopt its own view to the contrary. If the Court of Appeal had any doubts regarding the psychologist’s opinion, it should have requested the psychologist to complete the opinion or to call a new expert. Especially since the opinion in question cohered with the expert’s opinion from 30.01.2012 prepared under request of the court which decided upon the release of the applicant as well as the opinion of the NGO psychologist from 03.11.2011.

Outcome: 

Quashing the judgements of two instances (the Court of Appeal and the Regional Court) which granted the compensation of 6000 PLN to the applicant and passing the case for reexamination to the Regional Court.

Subsequent Proceedings : 

The Regional Court granted the compensation of 20000 PLN to the applicant.

Observations/Comments: 

Original ruling available at:

http://194.181.24.25/sites/orzecznictwo/orzeczenia3/iii%20kk%2033-14-1.pdf

This is a very outstanding judgement since there are not many cases regarding compensation for unlawful migration-related detention and even less where the Supreme Court is given an opportunity to rule on this subject.