ECtHR - Shamsa v Poland, Application Nos 45355/99 and 45357/99, 27 November 2003

Country of Applicant: 
Date of Decision: 
Shamsa v. Poland, Application No 45355/99 and 45357/99
Court Name: 
European Court of Human right, third section
Relevant Legislative Provisions: 

The European Court of Human Rights found that there had been a violation of Article 5(1) ECHR through the unlawful detention of two Libyan nationals by the Polish authorities after the expiration of an expulsion order due to be executed within 90 days.  


Two brothers, Anwar and Abdelsalam Shamsa of Libyan nationality, were arrested in Poland on 27 May 1997 and were unable to provide any forms of identification or residence permits. On the 28 May 1997, the Polish authorities granted an expulsion order to be executed in a period of no more than 90 days, the final date for expulsion being 24 august 1997. The applicants were placed in detention and the Polish authorities unsuccessfully attempted to expel the applicants on three occasions; via Prague on 24 August 1997, via Cairo on 28 August 1997 and finally via Tunis on 4 September 1997. According to Polish legislation, if the expulsion does not occur within 90 days, the detainees must be released.

The applicants claimed that their detention by the Polish airport border police and the two attempted expulsions after 24 August 1997 were unlawful due to the expiration of 90 days. Before the European Court of Human Rights, the Shamsa brothers argued unlawful detention and  a violation of the right to liberty and security of person under Article 5 of the Convention.

Decision & Reasoning: 

After summarising the arguments from both the Polish government and the applicants, the ECtHR analysed two aspects of an Article 5 violation of the Convention; the existence of the deprivation of liberty and the compatibility of this depravation in reference to paragraph 1 of Article 5.

The Court uses case authorities to emphasise that in order to determine the deprivation of liberty of the person one must consider the type, duration and mode of restriction implemented by a given measure ( Engel and others, Ammur v France, Guzzardi v Italy). This is applied to the facts of the case and it is concluded that during the detention by the Polish authorities, the constant surveillance of the applicants imposed a restriction to their freedom of movement as well as a restriction against their physical persons. Thus there is a clear deprivation of their liberty.

Secondly, the court discusses the compatibility of this deprivation with Article 5 to determine whether there has been a violation or if the detention could be deemed as lawful.

The Court first discusses whether the national law itself is compatible with the Convention and uses case law (Winterwerp v Netherlands and Erkalo v Netherlands) to conclude that the detention under national law must be  clearly defined in the law and the consequences which are likely to occur from a particular act, in other terms the foreseeability of the law (Steel and others v UK). Whilst the legislation forsees from a detention period   of 90 days the  legal basis of the continued detention after 24 August is called into question.

The Court determines that the Polish authorities continued to attempt to expel the applicants after 90 days without any legal basis, falling considerably short of the foreseeability requirements under Article 5(1) of the Convention. The prolongation of the detention had  not been ordered by a judge, or anyone authorised to exercise judicial power. Thus the extension cannot be lawful within the meaning of Article 5 paragraph 1 and the court concludes that there has been a violation of Article 5(1) of the Convention. 


The Court found that there was a violation of Article 5 of the Convention.

Subsequent Proceedings : 

Following the judgment Poland paid the applicant 11,000 euros in damages. Moreover, an amended Polish legislation was adopted the 13/06/2003 to restrict an initial period of detention to 90 days however this detention could be extended to one year following a judicial decision which could be appealed by the applicant. This has since been changed, see the AIDA Country Update for Poland.

The execution of the judgment was closed by the Committee of Ministers on 27 March 2008.


This case summary was written by Tazkia Rahman, student at BPP University. 

Case Law Cited: 

ECtHR - Öztürk v. Turkey, Application No 22479/93, 28 September 1999

ECtHR - Erkalo v. the Netherlands, Application No 23870/94, 2 September 1998

ECtHR- Steel and Others v. the United Kingdom, Application no. 24838/94

ECtHR - Guzzardi v. Italy, Application No. 7367/76

ECtHR - Engel and others v. The Netherlands, Application Nos. 5100/71, 5101/71/, 5102/71 and 5354/72

ECtHR - Winterwerp v. the Netherlands, Application No. 6301/73

ECtHR - Baranowski v Poland, Application No. 28358/95
Authentic Language: 
State Party: 
National / Other Legislative Provisions: 
Poland – The law on foreigners of 1963 Article 16
Poland - Penal Code Article 165 Article 246