Poland – Supreme Court, 2 March 2017 r., S.C., Z.C. and F.C., syg. Akt II KK 358/16
Keywords:
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Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
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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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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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Manifestly unfounded application
Description
Member States may consider an application for protection as manifestly unfounded, where it is defined as such in the national legislation, and: (a) the applicant clearly does not qualify as a refugee or for refugee status in a Member State under Directive 2004/83/EC; or (b) in cases of unfounded applications for asylum where any of these circumstances apply: - the applicant, in submitting his/her application and presenting the facts, has only raised issues that are not relevant or of minimal relevance to the examination of whether he/she qualifies as a refugee by virtue of Directive 2004/83/EC; or - the application is considered to be unfounded because the applicant is from a safe country of origin within the meaning of Articles 29, 30 and 31, or - the application is considered to be unfounded because the country which is not a Member State, is considered to be a safe third country for the applicant, without prejudice to Article 28(1);or - the applicant has misled the authorities by presenting false information or documents or by withholding relevant information or documents with respect to his/her identity and/or nationality that could have had a negative impact on the decision; or - the applicant has filed another application for asylum stating other personal data; or - the applicant has not produced information establishing with a reasonable degree of certainty his/her identity or nationality, or it is likely that, in bad faith, he/she has destroyed or disposed of an identity or travel document that would have helped establish his/her identity or nationality; or - the applicant has made inconsistent, contradictory, improbable or insufficient representations which make his/her claim clearly unconvincing in relation to his/her having been the object of persecution referred to in Directive 2004/83/EC; or - the applicant has submitted a subsequent application which does not raise any relevant new elements with respect to his/her particular circumstances or to the situation in his/her country of origin; or - the applicant has failed without reasonable cause to make his/her application earlier, having had opportunity to do so; or - the applicant is making an application merely in order to delay or frustrate the enforcement of an earlier or imminent decision which would result in his/her removal; or - the applicant has failed without good reason to comply with obligations referred to in Article 4(1) and (2) of Directive 2004/83/EC or in Articles 11(2)(a) and (b) and 20(1)of this Directive; or - the applicant entered the territory of the Member State unlawfully or prolonged his/her stay unlawfully and, without good reason, has either not presented himself/herself to the authorities and/or filed an application for asylum as soon as possible, given the circumstances of his/her entry; or - the applicant is a danger to the national security or public order of the Member State, or the applicant has been forcibly expelled for serious reasons of public security and public order under national law; or - the applicant refuses to comply with an obligation to have his/her fingerprints taken in accordance with relevant Community and/or national legislation; or - the application was made by an unmarried minor to whom Article 6(4)(c) applies, after the application of the parents or parent responsible for the minor has been rejected and no relevant new elements were raised with respect to his/her particular circumstances or to the situation in his/her country of origin. In line with UNHCR Executive Committee Conclusion No. 30 (XXXIV) of 1983, cases that are “clearly abusive” (i.e. clearly fraudulent), or “manifestly unfounded”, (i.e. not related to the grounds for granting international protection), may be considered for accelerated procedures. Similarly appeal or review procedures may also be more simplified than those generally available in the case of other rejected asylum applications. |
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Medical Reports/Medico-legal Reports
Description
“Expert medical report used as evidence relevant to the application for international protection. Where psychological elements are relevant, the medical report should provide information on the nature and degree of mental illness and should assess the applicant's ability to fulfil the requirements normally expected of an applicant in presenting his case. The conclusions of the medical report will determine the examiner's further approach.” |
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Relevant Facts
Description
An assessment of an application for international protection must take into account all relevant facts, including those relating to: the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied; relevant statements and documentation presented by the applicant; the individual position and personal circumstances of the applicant; and other matters set out in Article 4 of the Qualification Directive |
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Relevant Documentation
Description
“All documentation at the applicants disposal regarding the applicant's age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection.” |
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Standard of proof
Description
The degree or level of persuasiveness of the evidence required in a specific case. For example, in the refugee context, ‘well-founded’ is a standard of proof when assessing the fear of persecution. |
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Child Specific Considerations
Description
Application of a child-sensitive process and assessment of protection status, taking into account persecution of a child-specific nature and the specific protection needs of children. “When assessing refugee claims of unaccompanied or separated children, States shall take into account the development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Persecution of kin; under-age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee status-determination procedures.” See also the best interests principle. |
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Reception conditions
Description
The full set of measures that Member States grant to asylum seekers in accordance with Directive 2003/9/EC. |
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Material reception conditions
Description
“Reception conditions that include housing, food and clothing, provided in kind, or as financial allowances or in vouchers, and a daily expenses allowance.” |
Headnote:
The application of S.C. and her minor children Z.C. and F.C. related to the cassation of an Appeal Court judgement regarding compensation for the harm they suffered as a result of an indisputably unjust decision to place the Applicants in a Guarded Detention Centre for Foreigners. The Supreme Court reversed the challenged judgement and passed the case to the Appeal Court for re-consideration.
Facts:
Pakistani nationals, S.C. and her minor children Z.C. and L.C., were unjustly placed in a Guarded Detention Centre for Foreigners for a period between 12 December 2012 and 12 February 2013 i.e. 63 days.
On 22 October 2015, on the basis of the criminal procedure code regulations (c.p.c.) regarding compensation for unjust sentencing, remand or detention, the District Court in […] considered the application for compensation, awarding 1,000 PLN to each Applicant.
The Applicants’ legal representative appealed this ruling, challenging the part of the decision in which the court of I instance dismissed the application for compensation for amounts exceeding 1,000 PLN. The appeal alleged a breach of procedure which affected the substance of the ruling through:
- exercising an arbitrary instead of a discretionary evaluation of evidence;
- not considering the entirety of the gathered evidence;
- errors in findings of fact which formed the basis of the ruling;
- a breach of the provisions of article 407 of the Law on Foreigners regarding a failure to consider the best interests of a child through arbitrarily depriving them of liberty.
According to the appeal, the above violations related, among other factors, to the court’s erroneous belief that the compensation figure sought was blatantly excessive, the court awarding figures which represented inadequate compensation for indisputably unjust placement in a Guarded Detention Centre and to an unreasonable claim that being granted refugee status and the associated benefits amount to compensation for the unjust deprivation of liberty. The appeal further alleged that the court failed to consider the individual circumstances of each Applicant and that it mistakenly failed to recognize the causal relationship between the Applicants’ time in detention and the incident during which S.C.’s son was struck by another foreigner. The legal representative stressed that the amount awarded was inadequate in comparison to amounts awarded by courts in comparable cases and he applied to amend the challenged decision and award each applicant the figure of 35,000 PLN plus statutory interest.
On 22 June 2016 the Appeal Court in […] amended the challenged decision awarding an additional 9,000 PLN to S.C. and 14,000 to Z.C. and F.C. each, on top of their initial compensation. The I instance decision remained in force in all other aspects.
The legal representative made a cassation appeal regarding the aspect of the judgment of the Appeal Court which related to upholding the ruling of the court of I instance.
Decision & reasoning:
The Supreme Court (SC) considered the cassation arguments as partially valid and reversed the challenged Appeal Court decision. Despite reservations regarding the wording of the cassation appeal, the court considered it sufficient to find that it contained allegations of an insufficient instance control and a flagrant violation of legal provisions.
The SC noted that, according to the absolute obligation contained in art. 433 c.p.c., the Appeal Court was obliged to consider each allegation contained in the appeal and that it should have provided valid reasons for dismissing any part of the appeal. According to art. 457 c.p.c., the Appeal Court was also under an obligation to fully present its reasoning for its judgment. With reference to the “transfer effect” the SC relied on past judgements which confirmed a party’s right to make a cassation appeal both due to blatant legal defects of an appeal judgement and due to the defects in the ruling of the first instance court, which were not revised in the course of instance control.
According to art. 7 c.p.c. the Appeal Court was obliged to perform a discretionary evaluation of evidence, instead of an arbitrary evaluation, therefore it had no right to reject all presented expert opinions and take its own differing stance. An analysis of the reasons for the upheld I instance judgement proves that the court fully rejected the expert opinions of child specialists, considering them to be incomplete and in contradiction with the opinions of the specialists charged with considering the situation of the adult Applicant. The SC noted that the District Court had a right to consider the opinions of the expert child psychologist and child psychiatrist unconvincing, however it should then thoroughly justify its position and proceed according to provisions regarding the evaluation of expert evidence. The SC also criticised the quality of the argumentation used by the District Court in relation to this matter and the result according to which, by rejecting the entirety of the expert opinions of the child specialists, the court itself acted as an expert witness, which it was not entitled to do.
The SC found that the Appeal Court failed to consider the allegation, raised in the appeal, regarding the District Court’s failure to consider expert opinions in relation to the minors Z.C. and L.C., through which the court committed a flagrant violation of the provisions in art. 433 c.p.c. and 457 c.p.c.. The SC held that, while re-considering the appeal, the Appeal Court should establish, using expert opinions, whether and to what extent, considering the children’s age, their experiences in the period before their placement in the Detention Centre for Foreigners had an effect on their psychological wellbeing.
It has been noted that the court of I instance considered a lack of a causal relationship between the placement of the Applicant and her children in the Guarded Detention Centre and the fact that her son had been struck by another foreigner. Consequently the court failed to consider the delay in the child obtaining medical assistance and the stress related to his stay in the hospital. The SC stressed that, as the three Applicants were deprived of their liberty at the time of the incident, they were within the power and under the full control of the state of Poland, which was therefore fully and directly responsible for their safety and wellbeing. This obligation has notably been confirmed in ECtHR jurisprudence which points to a requirement for the introduction of measures which ensure that persons remaining under a state’s jurisdiction are not subject to torture or inhumane or degrading treatment also at the hands of private individuals. The SC considered that the Appeal Court failed to meet the requirements of appropriate control, by failing to consider the abovementioned decision of the I instance court.
The SC also mentioned the Appeal Court’s failure to consider the complaint regarding the Regional Court’s position that the Applicants’ receipt of refugee status and related benefits presented a certain degree of compensation for the harm which they suffered due to being unjustly placed in a Guarded Detention Facility. The SC “did not rule on the above matter” only reversing the challenged ruling. The SC merely considered that, if the Appeal Court sides with the Applicants on this issue, it would then be bound to increase the compensation figures, as the arguments of the court of I instance confirm that its position on the above matter influenced the award of low compensation figures.
The Appeal Court was also held to have failed to consider the allegation that the court of I instance did not consider the individual circumstances of the applicants, including the Applicant’s particular feeling of harm due to her status as a single mother, responsible for the fate of her two minor children. The SC noted that the Appeal Court not only failed to exercise instance control regarding the abovementioned matter, but that it also made an arbitrary decision to differentiate the Applicants’ compensation award amounts based solely on the criterion of their age. In the event of the Appeal Court again finding that a differentiation of award amounts is necessary, the SC obliged the court to provide material arguments justifying such a decision. The SC however accepted the suggestion that the age of the juvenile Applicants and the status of a “single mother” may have exacerbated the Applicants’ sense of injustice.
Outcome:
Cassation appeal granted – the case has been passed to the Appeal Court for re-consideration on appeal.
Subsequent proceedings:
The Appeal Court was ordered to consider all of the allegations raised in the initial appeal according to the recommendations of the SC.
On 17 May 2017 the Appeal Court reversed the initial judgement of the Regional Court in P. and passed the case for re-consideration (Sygn. akt II AKa 130/17).
Observations/comments:
The SC did not make an unequivocal ruling on the controversial suggestion that being granted refugee status and receiving related benefits “also represents a certain degree of compensation for the harm caused by the unjust placement in a guarded detention centre for foreigners”. The SC merely noted that the Appeal Court failed to consider the complaint relating to this finding, while passing this matter to be re-considered on appeal. As the Appeal Court also reversed the District Court’s decision, passing it for re-consideration, at present the matter of treating refugee status as a form of compensation for unjust detention in a guarded facility remains undecided.
This case summary was written by Brenda Efurhievwe, BPTC student at BPP University.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Wenerski v Poland, 20 January 2009, 4436N/A9/02 Lex Nr 478318 |
| ECtHR - Tomaszewscy v Poland, 15 April 2014, 8933/05, Lex Nr 1445086 |
| ECtHR - M.C. v Poland, 3 March 2015 r., 2369/09 |