Poland - Ruling of the Regional Court in Bialystok nr VIII Kz 508/15 from 11 December 2015 releasing the applicant from detention
Keywords:
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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
Headnote:
The case shows how the legal amendment which entered into force on 13 November 2015 changed the situation of asylum seekers by deleting the legal basis for detention formulated as “preventing from abusing the asylum proceedings”. Instead, article 87 (1) (3) of the Law on granting protection to foreigners in the territory of the Republic of Poland reflects article 8 (3)(d) of the recast Reception Directive and states that an applicant can be detained in order to issue or enforce the return decision if towards the applicant there is an ongoing return proceedings or there was a return decision issued and the applicant already had the opportunity to access the asylum procedure, and there are reasonable grounds to believe that the application was merely made in order to delay or frustrate the enforcement of the return decision.
The Border Guard relied on this provision when prolonging the detention of the applicant in the present case arguing it with the need to secure the proceedings regarding international protection. In the opinion of the Court, this provision cannot be used in the situation where the applicant is not subject to return proceedings and no such decision has been issued so far. That is why he should be released.
Facts:
On 23 September 2015 the applicant was detained by the district court under article 87 (1) (3) which before legal amendments introduced on 13 November 2015 stated that the applicant can be detained if it is necessary to prevent them from abusing the asylum proceedings.
The applicant’s second application for international protection (the first one was lodged in 2012) was rejected on 9 November 2015 but the decision was not final, as the appeal was still being processed.
Under the request of the Border Guard, the district court decided to prolong his detention for another 60 days under the above cited legal basis, which has changed in the meantime. Detention on this basis was not permitted in order to issue or enforce the return decision if towards the applicant there is an ongoing return proceedings or there was a return decision issued and the applicant already had the opportunity to access the asylum procedure, and there are reasonable grounds to believe that the application was merely made in order to delay or frustrate the enforcement of the return decision. The applicant appealed this ruling to the Regional Court in Bialystok. The Helsinki Foundation for Human Rights intervened in this case.
Decision & reasoning:
Firstly the Court noticed that facts of the case were not subject to dispute. The Court of the lower instance claimed however that prolonging the detention is necessary to secure the return proceedings. According to the case files there is no ongoing return proceedings against the applicant or that he had been issued a return decision. Only then there would be a possibility to examine whether his application for international protection had been lodged only to delay or frustrate the enforcement of the return decision. Return proceedings is now separate from the procedure for international protection. Any doubts in this regard are clarified by the legal amendments which entered into force on 13 November 2015. Article 303 (4) states that the return proceedings cannot be launched if proceedings for international protection are ongoing, unless it is a subsequent application being considered. Although in the present case the applicant submitted a subsequent application for international protection, the Border Guard did not launch return proceedings against him, so there is no legal basis to prolong his detention.
Outcome:
Amending the ruling of the district court and releasing the applicant from detention.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Poland - Article 87 section 1 point 3 of the Law of 13 June 2003 on granting protection to foreigners in the territory of the Republic of Poland |