Polish Supreme Court: Experts Must Be Consulted in Migrant Detention Cases

The Supreme Court says expert opinion should be considered in cases concerning moral injuries suffered by refugees held in detention facilities.
The Supreme Court's ruling concerned a case brought by a family of refugees unlawfully held at the Guarded Centre for Foreigners in Przemyśl.

Unlawful detention

The family in question, a mother with two children, were victims of violence in their country of origin. During their stay in the guarded center in Poland, the family submitted an application for international protection status.

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 center, which is a clear violation of law.

In light of the above, after the foreigners were finally released from the guarded center, lawyers with the Helsinki Foundation for Human Rights (HFHR) brought a motion for compensation for moral injuries caused by unlawful detention.

During the lower court proceedings, both the Regional Court in Warsaw and Court of Appeal in Warsaw awarded insufficient amounts of compensation, failing to consider all circumstances of the case, including the fact that one of the children was hit by another foreigner.

In connection with the above, the counsel for the foreigners submitted a complaint in cassation to the Supreme Court, sighting procedural errors in the case as well.

The Supreme Court reversed the judgment of the appeals court and remanded the case for reconsideration.

Expert opinion necessary

In its reasoning, the Supreme Court said that any 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 center. 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 in a guarded center. Nevertheless, courts often order the placement of foreigners in guarded centers based exclusively on Border Guard documents that confirm the absence of medical counter indications to detention, even if opinions drafted by psychologists from non-governmental organizations reach conclusions to the contrary.

ECtHR standards

The Supreme Court also stated, relying on the jurisprudence of the European Court of Human Rights, that foreigners placed in a guarded center 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 placed in a guarded center, even if said violence was inflicted by another foreigner and not the facility's personnel.