Publikacje Naukowe

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Browsing Publikacje Naukowe by Subject "admissibility"

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    Detencja cudzoziemców. Standardy praw człowieka a polityka migracyjna państw europejskich
    (INP PAN, 2025) Markiewicz-Stanny, Joanna
    The subject of this monograph is the deprivation of liberty applied in connection with the exercise of the State’s right to control the movement of persons, abbreviated as the detention of foreigners (immigration detention). It is to be understood as all those situations where an individual’s liberty is deprived in the context of procedures such as the prevention of illegal entry, expulsion, the granting of international protection or the transfer to another state for the examination of an asylum application. In this monograph, the problem of immigration detention is discussed primarily from the perspective of the international legal obligations of European states in the field of human rights. Of fundamental importance here is the European Convention on Human Rights, nevertheless the book contains numerous references to the universal human rights protection system and international refugee law. The consideration of the international legal standard of the right to liberty and security of person is carried out here in the context of the migration policies of European states and juxtaposed with the practice of detention. The book consists of five chapters. Chapter I presents the subject and object framework of the research, the sources of law adopted as a basis for the considerations and relevant terminology. It explains in a general way what the detention of foreigners consists in, as well as describing its origins and the evolution of its application in the practice of states. It also indicates the characteristics of the migration policy of European states, in terms of those elements that have an impact on the use of detention of foreigners. Chapter II addresses the context and factors that influence how the detention of aliens is normalised and applied at both international and national levels. Particular attention is given to elements such as extraterritorial activities, the privatisation of migration control and the multifaceted relationship between detention and processes of securitisation and criminalisation of migration. Chapter III is devoted to an in-depth examination of international human rights law standards on the permissibility of detention of foreigners as an element of the right to liberty and security of person and procedural guarantees. Given the importance of the conditions of detention as a criterion for its possible arbitrariness, this part of the monograph also deals with the standards for the treatment of foreigners during detention. Chapter IV deals entirely with the detention of foreigners in the law and practice of seven selected European states: Bulgaria, France, Spain, the Netherlands, Germany, Sweden and Poland. The problem is presented in such a way as to show that it is now possible to write about a certain normative pattern characteristic of the regulation of detention in Europe. Also described are the legal basis of detention in national law, the most common prerequisites for its application as well as issues such as the authorities responsible for adjudicating detention, the infrastructure used for this purpose and the conditions of detention. Chapter V is an analysis of how one would look at the detention of foreigners if it is applied unlawfully or arbitrarily on a systemic basis as part of state’s migration policy. The impact of the detention of foreigners on the enjoyment of human rights other than the right to liberty and security of person, which specifically includes the prohibition of degrading or inhuman punishment or treatment and the right to respect for private or family life was also analysed. The final issue addressed in the monograph is the problem of assessing the detention of foreigners from the point of view of the principle of good faith, which is fundamental to the international legal order.
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    W pogoni za… Praktyka korzystania z europejskiego nakazu aresztowania przez polskie organy wymiaru sprawiedliwości
    (INP PAN, 2024) Włodarczyk-Madejska, Justyna; Wzorek, Dominik
    The aim of the book "In Pursuit of… The practice of Using the European Arrest Warrant by Polish Judicial Authorities" was to describe Polish courts’ practice of issuing European arrest warrants (EAW) and the execution of EAWs by judicial authorities of other EU Member States, as well as to describe the experiences of people who have been issued an EAW. Using various research methods and techniques, we tried to investigate how one of the oldest mechanisms of European judicial cooperation – the European arrest warrant – functions in practice, including the post-extradition experiences of Poles expelled from Great Britain and other countries as a result of contact with the Polish or British justice system. The book is the result of a long-term project carried out at the Department of Criminology of the Institute of Law Studies of the Polish Academy of Sciences, titled “The Experiences of Poles Deported from Great Britain in Contact with the Justice System” and financed by the National Science Center as part of the Harmonia project (2018/30/M/HS5/00816). The title of the book refers both to people who have been extradited and to judicial authorities. The former group, when going abroad, were chasing a better life, a better job, and their dreams – but also trying to escape the consequences of their behavior, punishment, and even imprisonment. The judicial authorities, in turn, searched for these people under the EAW because it was necessary that they participate in proceedings, mainly enforcement proceedings, and thereby serve their prison sentence. The book consists of seven chapters. In the first – methodological – we present in detail the research questions we posed and the sources of data, research methods, and techniques we used. In the second chapter, we include the origins, legal background, and characteristics of the EAW as a legal institution introduced into the legal order under the Framework Decision on the EAW. The third chapter is devoted to statistical analysis of EU Member States’ issuance and execution of EAWs, with a particular emphasis on Poland. In chapter four, we present the procedure by which Polish courts issue EAWs, from a normative and empirical perspective. In chapter five, we analyze the Framework Decision on the EAW regarding how it regulates the procedure for EAW execution and how EAWs issued by Polish courts are executed in practice. Chapter six concerns the cooperation of various entities in the execution of EAWs. Chapter seven addresses the question of what the cooperation between Member States looks like when applying and executing EAWs. The entire study ends with a conclusion constituting a critical analysis of the regulation and functioning of the EAW in the practice of Polish courts. We used many research methods in the analysis of the law, the literature on the subject, and existing data. We conducted several studies, including an examination of court case files, interviews with people with experience of extradition, and expert interviews with people who have professional contact with such people. The research material was nationwide, so it allowed us to more closely examine the application of the EAW by Polish courts. The expert interviews, in turn, allowed us to learn more about the secrets of the functioning of this instrument – emerging difficulties and ways that the individual entities involved deal with them. What has so far been virtually unheard of in the literature on EAW, or has only been addressed sporadically, is certainly the greatest advantage of this book: the stories of people on whom this instrument was used, i.e. very specific examples showing the ups and downs of our respondents’ lives – in the country before and after emigration and abroad. These stories show how much their transfer to Poland changed and how much of their lives was destroyed as a result. This book therefore presents a twofold view of the EAW – through the eyes of those using this instrument, but also through the eyes of those against whom it was used. These views are often completely different. We wanted them to meet in one place, in one publication, so that readers of the book would have a full picture of “the use of the EAW.” The practice of applying the EAW evolved throughout our research. One clear trend we noted is that Polish courts issue fewer EAWs each year, even though the number of EAWs issued across Europe increases annually. However, this change may only be apparent or due to improved reporting quality, as data is now collected more accurately. Currently, Germany is the undisputed leader in issuing EAWs. The vast majority of EAWs issued by both Polish courts and the judicial authorities of other Member States concern the enforcement stage, meaning that individuals are sought to serve a prison sentence or another form of imprisonment. The EAW in practice covers various types of offenses, primarily property crimes, followed by more serious crimes against life and health. In our research, the EAW was most frequently issued for individuals sought for committing a single offense, although it was also used to seek perpetrators of multiple – sometimes dozens of – crimes. The seriousness of the offenses for which individuals are sought using the EAW has changed. In 2019, in contrast to previous findings by other researchers, the EAW was used to seek perpetrators of slightly more serious crimes than before 2019. The number of refusals to execute an EAW is steadily increasing, as is the proportion of EAWs refused execution. Refusals often occur due to optional grounds for executing the EAW, primarily when the executing state undertakes to enforce the sentence. We developed a procedure for transferring a person to Poland, emphasizing both issues related to the arrest of the person and the course of the procedure before the judicial authority executing the EAW. We also characterized the individuals sought by Polish courts using the EAW. The migration histories of those detained and transferred to Poland based on the EAW are extremely diverse. However, they share a common element: a non-voluntary return to Poland, which had a range of consequences, including a ban on returning to the country of emigration. We highlighted elements that indicate these individuals’ attachment to the country where they were detained, where they tried to lead an orderly life, from which they were uprooted. Their detention and transfer to Poland in such cases significantly interfered with their family, housing, and financial situation. All these negative consequences were related to their removal from an environment where they had usually been functioning well for years, and their being forcibly brought to a society that had become foreign to them. The ability to serve their sentence in the country of emigration, where they felt “anchored,” would have certainly helped them maintain ties with the social environment where they already had their place – mainly professional, but often also familial. Despite many important advantages of the EAW (such as effective enforcement of judgments and decisions on the detention of persons and the execution of penalties or efficient cooperation between states without third parties’ involvement), in the book we also present several criticisms of the tool itself, including the enormous costs of implementing it, the violation of the principle of proportionality, the arbitrariness of the procedures providing illusory control of the correctness of its use, abuse of the instrument, the lack of full coherence of legal systems regarding the basic assumptions of the justice system, the lack of harmonization of human rights, and problems with harmonizing the rights of people who are detained and sentenced regarding the procedure for adapting judgments.