Poland - Judgement of the Court of Appeal in Warsaw from 22 June 2016 II Aka 59/16 amending the judgement of the court of I instance by increasing the amount of compensation for unlawful 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." |
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Vulnerable person
Description
Persons in a vulnerable position, such as"Minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. Note: Directive 2011/36/EU defines a position of vulnerability as a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved." |
Headnote:
The Court of Appeal in Warsaw and the court of the first instance agreed that the detention of the applicant and her two children was unlawful from the moment the respective court decided on prolonging their detention as irregular migrants, although they have already applied for international protection.
Both courts agreed also that the amount of compensation for unlawful detention is dependent on the degree in which the state contributed to the trauma of the applicants and their inconvenience. In the present case, taking into account the available psychologists’ and psychiatrist’s opinions, the Courts decided that the poor health condition of the applicants was to a great extent caused by traumatic events experienced before coming to Poland – which eventually resulted in granting them refugee status.
However, the Court of Appeal decided to significantly increase the amount of compensation granted to the applicants, especially children, who were particularly vulnerable in this situation.
Facts:
A woman with two children came with a visa to Poland and applied for residence permit after the deadline. Because of this fact they were issued a return decision and given a ban to enter Poland for a year. They left Poland and went to the Czech Republic, where they were detained and then readmitted to Poland.
The woman and two children were placed in detention in Poland on 10 November 2012. Their stay in detention was prolonged, despite applying for international protection on 5 December 2012. They were released on 12 February 2013 and directed to an open camp for asylum seekers. The applicant and her two children were granted refugee status on 27 May 2013 because of the violence (including sexual violence) they were subject to in the country of origin.
They submitted an application for compensation for unlawful detention, requesting 35,000 PLN for each of them. The Regional Court in Warsaw admitted that their detention was unlawful from 12 December (the date on which the respective court decided on prolongation of their detention as irregular migrants, not taking into account that the woman and children had the status of asylum seekers) until 12 February 2013 (the date of release). The Court granted 1000 PLN (app. 250 Euro) to each of the applicants for 63 days of unlawful stay in a detention centre. The applicants appealed this ruling stating that the court of first instance was wrong in claiming that the poor health condition of the applicants was mostly a result of past events in the country of origin and not of the detention and that the conditions of detention were not that stringent. They demanded 35,000PLN of compensation for each of the detainee.
Decision & reasoning:
The Court of Appeal stated that the findings of the court of the first instance cannot be contested. The court of the first instance was right to claim that the applicants’ stay in detention was unlawful only between 12 December 2012 and 12 February 2013 (i.e. the court of the first instance took into account the opinions of the psychologists and of the psychiatrist and shared their views. It was clear that the PTSD of the applicant was not only caused by the detention in Poland but also traumatic experience in Pakistan and in detention in Czech Republic.) These opinions were however contradicted by other opinions of psychologists who claimed that the poor health condition of the applicants was exclusively due to detention. In the court of first instance’s judgment the latter opinions were not correct and the Court of Appeal allied itself with this conclusion. Accordingly the court of the first instance took into account all the available evidence and its assessment is convincing.
The issue which is still problematic in this case is the amount of the compensation which should be considered reasonable in this case. The amount is subject to the court’s discretion, but the amount cannot be symbolic and cannot lead to unjust enrichment. When deciding on the amount the court has to take into account, the living conditions and economic relations in Poland must also be borne in mind. It cannot be examined by only taking into account the infringement of the legal provisions. The court of the first instance took into account all the circumstances which should influence the amount of the compensation but this assessment was not reflected in its judgement. The amount granted to the applicants was too low.
The Court decided to grant the main applicant 10,000PLN and 15,000PLN to each of the children. With regard to the children, the Court took into account not only their stay in detention but also in the hospital and the stress that the 10-year-old boy, not knowing the language, was subject to. His sister, 8 years old, was particularly vulnerable and exposed to unpleasant experience while staying in detention with persons from different cultures and backgrounds.
Higher amounts of compensation would be unjustifiable taking into account the living conditions in the detention centre, current economic relations of the citizens of Poland and the amount granted by the Polish courts in other cases.
Outcome:
The increased amount of 40,000PLN (app. 10,000 Euro) compensation was granted to the applicants.
Subsequent proceedings:
The judgment was later appealed to the Supreme Court who held that many issues were not duly examined by the Regional Court and the Appeal Court and therefore quashed the judgement of the latter. The Court paid particular attention to the expert opinions presented in the case (that those "in favour" of the applicants were dismissed without due consideration and that there were no specialist opinions about the psychological condition of the children). The Court stressed that the State was fully responsible for all that happened in the detention centre (one of the children was hit by another third country national during their stay in the centre). Lastly, the Court agreed that there could have been a differentiation between the amount of compensation granted to the children and the mother, but noticed that the mother also had a special status - "single mother", which could additionally be a factor deteriorating her emotional condition.
Observations/comments:
The applicants were represented by a HFHR lawyer.