In April 2018, the European Court of Human Rights (ECtHR) ruled in the case of Bistieva and Others v. Poland. The case concerned a Chechen family who came to Poland and unsuccessfully applied for refugee status in 2013. In January 2014, the mother and children were detained at the Guarded Centre for Foreigners in Kętrzyn. During their placement at the centre, the family repeatedly re-applied for refugee status.
Court rules that Poland violated family's rights
In Bistieva, the Court found Poland had violatied the family's right to family life. The ECtHR held that the violation resulted from Polish authorities’ failure to take into account the best interests of the children in deciding to detain the asylum seekers. The Court argued that the Polish authorities should have considered using non-custodial measures and that detention should be only the measure of last resort. It also noted that the five months and 20 days the family were detained for was too long.
Polish Government claims it has already complied
On 11 April 2019, the Polish Government presented the Committee of Ministers with a report on the measures taken to implement the Bistieva judgment. According to the report, measures that can be used instead of immigration detention have since been introduced into law. Poland also stated that such alternative measures were commonly used. The Government noted that contents of the ECtHR’s judgement had been communicated immigration service personnel. Given the above, the Government claimed that it has fulfilled its obligations to execute the judgement.
HFHR: "It cannot be said that the Bistieva judgment has been executed by Poland
HFHR commented on the case in a communication it sent to the Council of Europe's Committee of Ministers. In this communication, the Foundation pointed out that the experience of non-governmental organisations and national human rights institutions showed that Polish authorities have failed to properly take into account the principle of assessing the best interests of the child in immigration detention proceedings. Statistics show that more than 1,100 children were placed in guarded immigration centres in 2014-2017. Moreover, studies on the jurisprudence of Polish courts in cases concerning detention of refugees indicate that the courts rarely pay attention to the individual situation of children. Accordingly, the court's assessment of the best interests of a child is usually limited to stating that these interests are safeguarded as the child is placed in a guarded centre together with the parents. Moreover, courts usually order immigration detention for the maximum period permitted by law.
“It cannot be said that the Bistieva judgment has been executed by Poland. Further action is needed to prevent similar violations”, said Jacek Białas, an HFHR lawyer representing foreigners in proceedings before the ECtHR. “The case creates precedent because the ECtHR judgement is the only judgement of an international body concerning immigration detention of refugees, among them children. This topic should be included in the discussion on the detention of refugee children in Poland, but also should have an impact on the jurisprudence of Polish courts in matters of detention of immigrant children”, Mr Białas concluded.
HFHR makes clear recommendations for change
- Judges and Border Guard officers should receive proper training on applying the principle of the best interests of the child and ECtHR case law in cases of immigration detention of minors.
- Guidelines for the specific actions to be taken should be prepared.
- The courts must examine, on a case-by-case basis, the best interests of the child in all matters concerning immigration detention, including hearing from the children concerned or experts.
- All court decisions to place a family in a guarded centre must incorporate a personalised assessment of the situation of the affected children.
HFHR also recommended that the Committee request the Government to provide statistics on the number of adult and minor detainees of the guarded centres.