Orzeczenie: Shamsa v. Poland
Wyrok dotyczący dwóch obywateli libijskich, wobec których polskie władze naruszyły art. 5 Europejskiej Konwencji Praw Człowieka (prawo do wolności i bezpieczeństwa osobistego).
Komentarz w j. angielskim
The case was brought to the European Court of Human Rights by two Libyan citizens, Anwar and Abdelsalam Shamsa. They claimed that Polish border guards violated their right to liberty and security which are guaranteed in the article 5 of the European Convention on Human Rights. According to the applicants, they were subjects to the unlawful detainment in the period from 25th August to 3rd October 1997.
Shamsa brothers did not have necessary documents allowing them to stay legally in Poland. Therefore, the Warsaw Province Governor (wojewoda warszawski) decided to expel them from the country. The Warsaw District Prosecutor made a decision concerning their 90-day detainment during which the expulsion was to be carried out. Polish officials made three attempts towards the applicants’ deportation via Prague, Cairo and Tunis. All those three attempts turned out to be unsuccessful due to Shamsa’s refusal (deportation via Prague) and due to other official decisions (Cairo, Tunis). In the meantime, Shamsa brothers were detained in the transfer zone at the Warsaw airport.
Their detainment prolonged till 3rd October 1997 when they were deported to Tunisia. However, since 25th August 1997 there was no legal basis for their detainment (as the Prosecutor’s decision was issued on 28th May 1997). The applicants were kept in the transfer zone on the ground of the internal rules of the border guards. Therefore, the European Court of Human Rights decided that Shamsa’s detainment in the given period can be classified as the unlawful as there was no legal basis for the decision, which according to the Court could be considered as such.
Implementation
The major change in the Polish law had been made before the final judgment was announced (27th November 2003). On 13th July 2003 the new Aliens Law was enacted(1). However, there is no doubt that to some extent the Shamsa v. Poland case influenced the new legislation. In the new rule there are some provisions which refer to the case and were obviously aimed at filling the legal void in the Polish legislation which was proved during the proceedings in Strasburg.
The fundamental change, in comparison with the previous act referring to the aliens, is the fact that the new Aliens Law is also applicable to the transit zones. It seems to be a direct result of the Shamsa v. Poland judgment, as the Court pointed out in its judgment that there was a legal void concerning those areas (transfer zones). During the proceedings before the European Court of Human Rights, the Polish government stated that transfer zones could not be considered as the Polish territory, and therefore the previous legislation did not apply to that case.
According to new rule, the court order (postanowienie sądowe) is necessary to prolong the detainment in the transit zone. It makes it impossible to extend this period on the grounds of any other decision than given by a person in judicial powers. All those above mentioned changes provide the aliens with the right to complain about the court order in compliance with the Polish criminal procedure. It was stressed by the European Court of Human Rights that Shamsa brothers were unable to lodge a legal complaint against this decision concerning their detainment at the airport, as it was not based on legal basis but the internal rules of the border guards.
Moreover, according to the new Aliens Law, there is a legally guaranteed possibility to obtain the compensation for the unlawful detention in the transit zones.
Undoubtedly, the well – trained professionals who deal with such cases on daily basis are the sine qua non condition to safeguard the observance of the new rule. Therefore, in order to promote the judgment, it was sent by the chairmen and prosecutors of the appeal courts to all judges in criminal courts as well as to all prosecutors who were under the administrative jurisdiction(2).
The judgment was also spread among the border guards. The Shamsa case is also a part of their professional training. Such actions should result in the familiarization of the border guards with the new standards.
Dominika Gmerek
1) Dz.U. 2003 nr 128 poz. 1175
2) Nadzorowanie wykonywania wyroków Europejskiego Trybunału Praw Człowieka II raport roczny za 2008 rok http://bip.ms.gov.pl/prawa_czlowieka/raport_2008.pdf (22.05.2010), p. 133
Shamsa brothers did not have necessary documents allowing them to stay legally in Poland. Therefore, the Warsaw Province Governor (wojewoda warszawski) decided to expel them from the country. The Warsaw District Prosecutor made a decision concerning their 90-day detainment during which the expulsion was to be carried out. Polish officials made three attempts towards the applicants’ deportation via Prague, Cairo and Tunis. All those three attempts turned out to be unsuccessful due to Shamsa’s refusal (deportation via Prague) and due to other official decisions (Cairo, Tunis). In the meantime, Shamsa brothers were detained in the transfer zone at the Warsaw airport.
Their detainment prolonged till 3rd October 1997 when they were deported to Tunisia. However, since 25th August 1997 there was no legal basis for their detainment (as the Prosecutor’s decision was issued on 28th May 1997). The applicants were kept in the transfer zone on the ground of the internal rules of the border guards. Therefore, the European Court of Human Rights decided that Shamsa’s detainment in the given period can be classified as the unlawful as there was no legal basis for the decision, which according to the Court could be considered as such.
Implementation
The major change in the Polish law had been made before the final judgment was announced (27th November 2003). On 13th July 2003 the new Aliens Law was enacted(1). However, there is no doubt that to some extent the Shamsa v. Poland case influenced the new legislation. In the new rule there are some provisions which refer to the case and were obviously aimed at filling the legal void in the Polish legislation which was proved during the proceedings in Strasburg.
The fundamental change, in comparison with the previous act referring to the aliens, is the fact that the new Aliens Law is also applicable to the transit zones. It seems to be a direct result of the Shamsa v. Poland judgment, as the Court pointed out in its judgment that there was a legal void concerning those areas (transfer zones). During the proceedings before the European Court of Human Rights, the Polish government stated that transfer zones could not be considered as the Polish territory, and therefore the previous legislation did not apply to that case.
According to new rule, the court order (postanowienie sądowe) is necessary to prolong the detainment in the transit zone. It makes it impossible to extend this period on the grounds of any other decision than given by a person in judicial powers. All those above mentioned changes provide the aliens with the right to complain about the court order in compliance with the Polish criminal procedure. It was stressed by the European Court of Human Rights that Shamsa brothers were unable to lodge a legal complaint against this decision concerning their detainment at the airport, as it was not based on legal basis but the internal rules of the border guards.
Moreover, according to the new Aliens Law, there is a legally guaranteed possibility to obtain the compensation for the unlawful detention in the transit zones.
Undoubtedly, the well – trained professionals who deal with such cases on daily basis are the sine qua non condition to safeguard the observance of the new rule. Therefore, in order to promote the judgment, it was sent by the chairmen and prosecutors of the appeal courts to all judges in criminal courts as well as to all prosecutors who were under the administrative jurisdiction(2).
The judgment was also spread among the border guards. The Shamsa case is also a part of their professional training. Such actions should result in the familiarization of the border guards with the new standards.
Dominika Gmerek
1) Dz.U. 2003 nr 128 poz. 1175
2) Nadzorowanie wykonywania wyroków Europejskiego Trybunału Praw Człowieka II raport roczny za 2008 rok http://bip.ms.gov.pl/prawa_czlowieka/raport_2008.pdf (22.05.2010), p. 133
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