Detention of a foreigner by the police in Poland

Detention of a foreigner by the police in Poland on suspicion of committing a crime is often the first direct contact with the Polish justice system. For many foreigners and their families, this situation can be stressful, confusing and raise numerous questions. An additional problem is the fact that foreigners and their families are not familiar with Polish criminal law or the applicable procedures, and police officers often do not speak English fluently.

However, it should be emphasised that a foreigner detained on Polish territory is, in principle, subject to the same criminal law and criminal procedure as a Polish citizen. This means that they have the same rights in relation to detention, but at the same time they have the same obligations.

From the moment of detention, a foreigner should be aware that their behaviour, explanations and statements may be recorded in police reports. These materials may then be used in further criminal proceedings, including in Polish court.

For this reason, it is extremely important that a foreigner detained by the police knows their rights at the stage of detention — regardless of whether they have actually committed a crime, consider themselves innocent, or are unsure of their legal situation.

In this article, we explain in practical terms the most important issues related to the detention of foreigners by the police in Poland, in particular:

• can the Polish police detain a foreigner?
• when can the police detain a foreigner?
• what measures of direct coercion can the police use against a foreigner?
• on what grounds can the police use measures of direct coercion?
• what does the police do after detaining a foreigner in Poland?
• can a detained foreigner notify their next of kin?
• does a foreigner have the right to an interpreter after being detained by the police?
• does a detained foreigner have the right to refuse to provide explanations?
• does a foreigner detained in Poland have the right to contact the consulate?
• is it possible to lodge a complaint against the detention of a foreigner in Poland by the police?
• what compensation is a foreigner entitled to for wrongful detention?
• how long can the police detain a foreigner?

Can the Polish police detain a foreigner?

Yes, the Polish police have the right to detain a foreigner in the same way as a Polish citizen. A person’s citizenship is not an obstacle to detention if the conditions provided for in the law are met.

A foreigner may be detained both on suspicion of committing a crime (under the Polish Code of Criminal Procedure), as discussed below, and as part of activities aimed at checking the legality of their stay in the territory of the Republic of Poland.

Pursuant to Article 289(1) of the Polish Act on Foreigners, the Border Guard and the Police carry out checks on the legality of foreigners’ stay in the territory of the Republic of Poland in order to establish the facts regarding compliance with the provisions on the conditions of entry and stay of foreigners in that territory.

This means that the Police are authorised not only to detain a foreigner in criminal proceedings, but also to take steps to determine whether their stay in Poland is legal. In practice, this very often leads to further involvement of the Polish Border Guard in the case.

When can the Police detain a foreigner?

The detention of a foreigner by the Polish Police is carried out on the same terms as the detention of a Polish citizen, i.e. on the basis of Article 244 § 1 of the Polish Code of Criminal Procedure. According to this provision, the police may detain a person if there is a reasonable suspicion that they have committed a crime and, in addition, at least one of the following circumstances applies:

• fear of escape or hiding,
• fear of covering up traces of the crime,
• inability to establish identity,
• existence of grounds for expedited proceedings.

In practice, this means that ‘the probability must be justified, but given that this detention is intended to be used primarily at an early stage of the proceedings, it is not necessary for this assumption to be based strictly on hard evidence. The assessment may also be based on the current observations of officers or information from persons who do not have the procedural status of witnesses’ (J. Karaźniewicz [in:] Code of Criminal Procedure. Commentary, ed. J. Zagrodnik, Warsaw 2024, commentary on Article 244).

Therefore, in practice, the decision to detain a person may be made on the basis of preliminary findings of fact, without the need to gather all the evidence beforehand.

However, our experience shows that in the case of the detention of a foreigner, the practice of law enforcement authorities often differs, even though the legal basis for detention remains the same as for Polish citizens.

In many cases, the language barrier may be considered by the police as a circumstance justifying the fear of obstructing the proceedings, in particular when there are difficulties in establishing the identity of the foreigner or in carrying out basic procedural activities. In such situations, officers decide to detain the foreigner even if there are no other circumstances typical for Polish citizens.

Regardless of the above, the mere lack of an identity document on the part of a foreigner very often leads to detention, especially when it is not possible to quickly establish the personal details of the detained person.

Of course, in a situation where, for example, prohibited substances or other items that may indicate the commission of a crime are found on a foreigner, regardless of existing communication difficulties or lack thereof, that person will be detained.

What measures of direct coercion can the police use against a foreigner?

Effective and safe detention requires the police to be able to respond to the behaviour of the detained person, in particular in situations of resistance, attempted escape or threat to the life or health of others. To this end, Polish police officers are authorised to use so-called ‘direct coercive measures’ against both Polish citizens and foreigners.

The catalogue of direct coercive measures and the rules for their use are regulated in detail in the Polish Act on Direct Coercive Measures and Firearms and the Polish Act on the Police.

The police are authorised to use or employ, among other things, the following means of direct coercion:

• physical force (restraint, transport and defence techniques),
• handcuffs,
• service batons,
• chemical incapacitating agents, in particular hand-held irritant sprayers,
• objects designed to incapacitate with electricity,
• other measures provided for in the Polish Act – depending on the nature of the threat.

Of course, the choice of direct coercive measures should be adequate to the degree of threat, and their use should be proportionate and necessary to achieve the objective of the action.

On what grounds can the police use direct coercive measures?

Pursuant to Article 34 of the Polish Act on Direct Coercive Measures and Firearms, a police officer may use direct coercive measures after first calling on the person to behave in accordance with the law and warning them of the intention to use such measures, unless delay would pose a direct threat to human life or health or could lead to the obstruction of official duties.

In practice, a police officer’s call should be a clear and understandable message, enabling the person being detained to adjust their behaviour to the officers’ instructions.

What does the police do after apprehending a foreigner in Poland?

After apprehending a person, the police have a number of obligations aimed at ensuring that the rights of the apprehended person are respected and that official duties are performed correctly. First of all, pursuant to Article 244 § 2 of the Polish Code of Criminal Procedure, the apprehending authority shall immediately inform the apprehended person of:

• the reasons for the apprehension,
• the legal grounds for the arrest,
• their rights, including the right to seek the assistance of a solicitor or legal adviser,
• the right to an interpreter if the arrested person does not speak Polish.

The next step is to allow the detained person to be heard. The purpose of the hearing is to allow the presentation of circumstances that may argue for the release or mitigation of measures against the detained person (cf. P. Hofmański, Code of Criminal Procedure. Commentary, vol. 1, 2007, p. 1088). In practice, the hearing should primarily concern the circumstances related to the suspected offence for which the detention was made. It is worth remembering that all information disclosed during the hearing may later be used as evidence. For this reason, the detained person should be informed of their right to remain silent and the possibility of obtaining legal assistance before making any statements.

The police draw up a report on each detention, which specifies, among other things, the exact time and place of detention, with the time specified by day, hour and minute. Determining the moment of detention plays an important role in guaranteeing the rights of the detained person, primarily due to the statutory maximum duration of detention, as discussed below.

Does a foreigner detained in Poland have the right to a solicitor?

Pursuant to Article 245 § 1 of the Polish Code of Criminal Procedure, a detained person, including a foreigner, shall, at their request, be immediately allowed to contact a solicitor or legal adviser in an accessible form, including conducting a direct conversation with them; in exceptional cases, justified by special circumstances, the detaining authority may stipulate that it will be present during the conversation.

The authority should inform the detained foreigner of their right to contact a solicitor or legal adviser and to have a direct conversation with them. If the detainee requests contact with the aforementioned persons, it is the duty of the investigating authority to facilitate this. However, the detaining authority is not obliged to seek to ensure that the detained person has contact with them (cf. P. Hofmański, KPK. Komentarz, vol. 1, 2007, p. 1096), which in practice means that the police are not obliged to indicate or ensure contact with a solicitor. This means that if the detained person does not indicate an effective way of contacting a solicitor, then in practice they may not be able to obtain assistance. In this situation, of course, the detention of a foreigner in Poland will remain legal.

Contact may be established in an accessible form, i.e. in a form that is feasible in the given circumstances. As a rule, this will be by telephone, although it is of course also possible to contact a solicitor or legal adviser by e-mail. Regardless of the possibility of contacting the above-mentioned persons, the detained person has the right to speak to them directly.

Can a detained foreigner notify their next of kin?

At the request of the detainee in Poland, the police or other authority carrying out the detention is obliged to immediately notify the person closest to the detainee of the detention, which will usually be the person indicated by the detainee. In this situation, the detainee may provide their next of kin with all necessary information concerning the detention, and above all, the police station where they are being held. On the basis of this information, the next of kin may immediately contact a solicitor and provide legal assistance to the detainee.

A practical example from Polish case law:

“Therefore, Chapter 27 of the procedural law itself grants the detained person a number of rights that fall within the concept of the right to defence, which are typical of its essence and are exercised in a situation where there is a reasonable suspicion, put forward by the authority making the arrest, that the person has committed a crime. Thus, it is not the formal presentation of a charge of committing a crime, but the first action of the procedural authorities aimed at prosecuting a specific person that makes them subject to the right to defence (Polish Supreme Court judgment of 9 February 2004, file ref. no. V KK 194/03).”

Does a foreigner have the right to an interpreter after being detained by the police?

In the context of foreigners, one of the aforementioned obligations of the police, namely the right to use an interpreter if the detainee does not know Polish, is of particular importance. However, a practical question arises as to what exactly is meant by the statement that ‘the detainee does not know Polish’?

In practice, this does not refer to a situation where a foreigner does not speak Polish at all. It is sufficient to state that they are unable to exercise their right to defence independently and in a meaningful way. This means that even if the detainee can communicate in Polish to some extent but is unable to fully understand the content of the instructions, the meaning of the procedural steps or to make informed statements, the authority should provide them with an interpreter.

Importantly, the obligation to provide an interpreter in Polish criminal procedure is not limited solely to the foreigner’s native language. Interpretation should be provided in a language that the detainee speaks to a degree that allows for the effective exercise of their right to defence. Consequently, if, for example, a German citizen is fluent in English, it is acceptable to provide him with an interpreter for that language, as long as this guarantees effective participation in the proceedings (cf. P. Dyluś-Borcz, N. Klima-Piotrowska, B. Piotrowski, Foreigners as perpetrators of crimes in Polish criminal proceedings (rights and obligations), Cz.PKiNP 2022, No. 1–2, pp. 41–60).

Does a detained foreigner have the right to refuse to make a statement?

A person detained in Poland has the right to remain silent. They are not obliged to make any statements, and anything they say may be used against them. This also applies to information provided during informal conversations with officers.

Our experience shows that in practice, investigators often encourage detainees to make statements. Given the stress associated with the situation, this increases the risk of saying something that could potentially have negative legal consequences. Therefore, we recommend that you refrain from making any statements until you have contacted a solicitor who, after analysing the case, will be able to protect the rights and interests of the detained person and advise them on what to say and what not to say. 

At the same time, a foreigner should not fear that exercising the right to remain silent will worsen their legal situation. On the contrary, remaining silent until consulting a defence lawyer can protect them from making statements that could be used by the police. In practice, there are various reasons for exercising the right to remain silent. The reason for a suspect’s silence may often be a lack of understanding of the charges, a desire to protect a loved one who is the perpetrator of the crime, or a desire to obtain legal advice in advance. All this means that there is no justification for the view that seeking a detailed explanation of the case is a natural reaction of an innocent person, and that silence indicates that the person being questioned has something to hide (A.R. Światłowski, The right to silence in contemporary English criminal proceedings, ‘Palestra’ 2002, No. 1–2 (529–530), pp. 154–165).

Does a foreigner detained in Poland have the right to contact their consulate?

In the event of a foreigner being detained in Poland, the legislator has also provided for additional safeguards to ensure effective protection of procedural rights. Pursuant to Article 612 § 2 of the Polish Code of Criminal Procedure, if a foreigner is detained, they have the right to request contact with the competent consular office or diplomatic mission. This provision establishes

The obligation to enable a foreigner to contact a consular office or diplomatic mission rests with the authority that detained the person. However, it should be emphasised that although a foreigner has this right, it is entirely up to them to decide whether to exercise it.

This means that the authority making the detention is not entitled to take action in this regard ex officio, but is only obliged to enable contact with the competent consular office or diplomatic mission at the express request of the detained person.

The phrase ‘in an accessible form’ used in Article 612 § 2 of the Polish Code of Criminal Procedure should be understood as an obligation to ensure a means of communication that is possible in the given circumstances. It may therefore be fulfilled, inter alia, by telephone, fax, e-mail or direct conversation with a consular officer (cf. S. Steinborn, in: J. Grajewski (ed.), Code of Criminal Procedure. Commentary, vol. 2, 2010, p. 1233).

Is it possible to lodge a complaint against the detention of a foreigner by the Polish police?

The police are obliged to inform the detained person of their right to lodge a complaint with the Polish court against the decision to detain them. This obligation is of significant importance as it allows for judicial review of the legality, validity and correctness of the detention.

If the court finds that the detention was unjustified or illegal, this constitutes grounds for claiming compensation from the Polish State Treasury, including by foreign nationals, on the same terms as Polish citizens. Pursuant to Article 552 § 4 of the Polish Code of Criminal Procedure, compensation and damages are also payable in the event of an undoubtedly unjustified pre-trial detention or arrest. In case law, it is accepted that a prior finding by the court that the detention was unjustified or illegal in the course of a complaint procedure is a significant argument in favour of considering it ‘undoubtedly unjustified’ within the meaning of this provision.

What compensation is a foreigner entitled to for wrongful detention?

When determining the amount of damages, particular consideration is given to lost earnings and other income, as well as costs incurred in connection with the appointment of a defence lawyer during criminal proceedings. This includes both actual losses and lost profits.

In practice, this means that in the case of a foreigner working in Poland, e.g. a Ukrainian citizen who sent his salary to support his family in his country of origin, the damage may also include lost indirect benefits. If, as a result of detention or pre-trial detention, the family was deprived of the opportunity to save money, it is necessary to determine how much they could have saved under normal circumstances. This hypothetical value constitutes lost benefits that are subject to compensation.

A practical example from Polish case law:

“When determining the amount of compensation, one should take into account the psychological experiences associated not only with the fact of deprivation of liberty, such as isolation and harsh conditions of isolation, but also the period of isolation from society, the age of the arrested person, their state of health, previous convictions, profession, as well as the effects that the wrongful use of pre-trial detention had on the entitled person in the environment in which they function (Polish Supreme Court judgment of 26 November 2024, ref. no. I KA 7/24).”

The concept of an appropriate amount of compensation is vague. Undoubtedly, compensation is intended to be compensatory in nature, and therefore its amount cannot be symbolic, but must represent economic value. At the same time, this value cannot be excessive in relation to the harm suffered, but must be, in accordance with Article 445 § 1 of the Polish Civil Code, ‘appropriate’ in the sense that it should be kept within reasonable limits, corresponding to the current conditions of society, and cannot lead to excessive enrichment. On the other hand, the criterion of the average standard of living of society is of auxiliary importance (judgment of the Polish Court of Appeal in Warsaw of 2 July 2024, file ref. no. VIII AKa 128/23).

How long can the police detain a foreigner?

Pursuant to Article 248 § 1 of the Polish Code of Criminal Procedure, a detained person must be released immediately when the reason for detention ceases to exist, and also if, within 48 hours of detention by an authorised body, they are not brought before a court with a request for pre-trial detention; they must also be released on the order of a court or prosecutor.

The above provision means that:

• if, in the course of the actions taken by the police, the grounds for detention cease to exist, the officers are obliged to release the detained person immediately,
• detention may last for a maximum of 48 hours. If during this time the detained person is not brought before a court, the police are obliged to release them immediately.
• if the 48-hour limit is exceeded, further detention will be illegal and will constitute an abuse of power.

However, law enforcement authorities may determine that there are grounds for applying pre-trial detention. In such a case, they are obliged to immediately bring the detained person before a Polish court within 48 hours of detention, together with a request to apply this preventive measure.

Summary

As a rule, the detention of a foreigner by the police in Poland is carried out on the same terms as the detention of a Polish citizen. Citizenship does not limit the powers of law enforcement authorities, but at the same time does not deprive a foreigner of any fundamental procedural rights. From the moment of detention, a foreigner becomes entitled to defence, regardless of whether charges have been formally brought against them.

The police may detain a foreigner both on suspicion of committing a crime and to check the legality of their stay. In practice, however, language barriers, lack of documents or difficulties in establishing identity often lead to more frequent detention of foreigners than Polish citizens.