FIRST SECTION

DECISION

Application no. 46697/18 K.T. and Z.K . against Poland

The European Court of Human Rights (First Section), sitting on 16 June 2020 as a Committee composed of:

Linos-Alexandre Sicilianos, President, Krzysztof Wojtyczek, Armen Harutyunyan, judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 10 October 2018,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court, the fact that this measure has been complied with, and the subsequent decision to lift this measure,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having regard to the comments submitted by the Helsinki Foundation for Human Rights,

Having deliberated, decides as follows:

THE FACTS

1 . The applicants, Mr K.T. and Ms Z.K., are Tajikistani nationals who were born in 1985 and 1988 respectively and live in Cracow. The President granted the applicants ’ request for their identity not to be disclosed to the public (Rule 47 § 4). They were represented before the Court by Ms I. Hnasevych , a lawyer from the Halina Nieć Legal Aid Center in Cracow.

2 . The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . On 5 January 2016 the applicants, who are married and were travelling with four children, all minors, lodged an application for international protection in Poland. They alleged that they had been persecuted by the Tajik authorities for political reasons and would be at risk of further persecution, torture or other inhuman and degrading treatment if returned to Tajikistan.

5 . On 5 September 2016 the head of the Aliens Office ( Szef Urzędu do Spraw Cudzoziemców ) declined to grant the applicants international protection. On 2 October 2017 the Refugee Board ( Rada do Spraw Uchodźców ) upheld this decision. The applicants did not lodge an appeal against those decisions with an administrative court.

6 . On 28 November 2017 the applicants lodged a second application for international protection with the head of the Aliens Office. However, on 23 April 2018 those proceedings were discontinued due to the fact that on an unspecified date the applicants had left Poland and travelled to Germany.

7 . On 18 April 2018 the head of the Warsaw- Okęcie Unit of the Border Guard ( Komendant Placówki Straży Granicznej Warszawa- Okęcie ) had issued a decision obliging the applicants and their children to leave Poland and prohibiting them from re-entering Poland or other states of the Schengen zone for a period of 3 years. The applicants did not appeal against this decision.

8 . On 23 July 2018 the applicants were transferred from Germany to Poland on the basis of the “Dublin III Regulation” (Recommendation C( 2016)8525 ad opted on 8 December 2016). They lodged a new application for international protection. On 7 September 2018 the head of the Aliens Office rejected the application as based on the same grounds as an application in which a final decision had already been issued. The applicants appealed against this decision. This appeal seems to be pending.

9 . Simultaneously, the applicants asked the head of the Warsaw- OkÄ™cie Unit of the Border Guard to re-open the proceedings concerning the obligation for them and their children to leave Poland and the prohibition on their re ‑ entering Poland or other states of the Schengen zone. On 10 September 2018 the head of the Warsaw- OkÄ™cie Unit of the Border Guard refused to re-open the proceedings in the case of both applicants. On 18 February 2019 the head of the Office for Foreigners quashed those decisions and remitted the cases. On 26 March 2019 the head of the Warsaw- OkÄ™cie Unit of the Border Guard re-opened the proceedings in the applicants ’ cases.

10 . Meanwhile, on 10 October 2018, the applicants had lodged a request under Rule 39 of the Rules of Court, asking the Court to prevent their removal to Tajikistan. By a decision of 11 O ctober 2018 the Court (the duty judge) decided to indicate to the Government that the applicants should not be expelled until 12 November 2018. Subsequently, this period was extended for the duration of the proceedings before the Court.

11 . On 23 April 2019 the head of the Warsaw- Okęcie Unit of the Border Guard issued two decisions in which he granted the applicants and their children residence permits on humanitarian grounds. The domestic authority relied on the best interest of the applicants ’ children. It indicated in particular that the applicant family had integrated well in Polish society, their fifth child had been born in Poland and the older children were attending school there and spoke Polish. The decisions became final on 14 May 2019.

12 . On 8 October 2019 the Court (the President of the Section to which the case had been allocated) decided to lift the interim measure indicated to the Government under Rule 39 of the Rules of Court in the present case.

13 . The grounds for and procedure of issuing a decision obliging a foreigner to return to their country of origin and prohibiting them from re ‑ entering Poland and other countries of the Schengen zone is regulated in the Aliens Act of 12 December 2013 ( Ustawa o cudzoziemcach – hereinafter “the 2013 Act”).

14 . According to Sections 310 and 321 of the 2013 Act a decision is issued by the head of the relevant unit of the Border Guard. Within 14 days of being served with it, a foreigner can lodge an interlocutory appeal against the decision with the head of the Aliens Office. Pending such an appeal, the decision is not final and cannot be executed.

15 . A decision issued by the head of the Aliens Office can be appealed against by lodging an appeal with the Warsaw Regional Administrative Court ( Wojewódzki Sąd Administracyjny w Warszawie ) and – as a last resort – a cassation appeal with the Supreme Administrative Court ( Naczelny Sąd Administracyjny ). An appeal lodged with an administrative court does not have an automatic suspensive effect. However, a foreigner can lodge an application to have the execution of the decision suspended. According to Section 331, paragraph 1, of the 2013 Act:

“In case where an alien lodged with a regional administrative court an appeal against the decision obliging an alien to return together with an application for a stay of execution of this decision, the time-limit for an alien to return voluntarily or the date of enforcement of this decision is ex- lege extended until the regional administrative court has decided on the application.”

16 . Furthermore, Section 330, paragraph 1, point 3, of the 2013 Act states:

“A decision obliging an alien to return shall not be enforced where ... an alien has been granted a residence permit on humanitarian grounds or a permit for a tolerated stay or the conditions for granting it are met ...”

COMPLAINTS

17 . The applicants complained under Article 3 of the Convention that their return to Tajikistan would place them at risk of ill-treatment.

18 . Under Article 13 taken in conjunction with Article 3 of the Convention they argued that their application to have re-opened the proceedings concerning the decision obliging them and their children to leave Poland and prohibiting them from re-entering Poland or other states of the Schengen zone did not have a suspensive effect on this decision. They submitted that, as a result, at this stage of the proceedings they had been deprived of an effective remedy, which would have protected them against this decision being enforced.

THE LAW

19 . The applicants complained that their expulsion to Tajikistan would be contrary to Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

20 . The Government submitted that, as the applicants had been granted residence permits on humanitarian grounds, they were no longer at risk of being returned to Tajikistan.

21 . The applicants argued that the residence permits had been granted on other grounds and were in no way a form of protection equal to international protection. They also submitted that the granting of such permits did not change the fact that the domestic authorities had disregarded the risk of the applicants ’ being subjected to torture and ill-treatment in their country of origin and, therefore, failed to fulfil their obligations under Article 3 of the Convention.

22 . The Court notes that on 23 April 2019 the applicants were granted residence permits in Poland on humanitarian grounds (see paragraph 11 above). Consequently, the decision obliging them to leave Poland can no longer be enforced and the applicants cannot – under the domestic law – be returned to Tajikistan. In these circumstances, and ha ving regard to Article 37 § 1 (b) of the Convention, the Court is of the opinion that the matter has been resolved and it is no longer justified to continue the examination of the application in the part in which the applicants complained that their expulsion would expose them to the risk of treatment contrary to Article 3 of the Convention (see e.g. Mamilov v. Poland ( dec. ), no. 18358/07, 20 October 2010 , and A.T. v. Sweden ( dec. ), no. 78701/14, §§ 9-10, 25 April 2017).

23 . Contrary to what the applicants suggest, in examining this question the Court does not need to enquire retrospectively into whether a real risk engaging the respondent State ’ s responsibility under Article 3 of the Convention existed when the Polish authorities refused their asylum requests. These are historical facts, but they do not shed light on the applicants ’ current situation, in which the impugned risk has been removed; this latter circumstance is decisive for the Court ’ s finding that the matter has been resolved (see M.E. v. Sweden (strikin g out) [GC], no. 71398/12, § § 34 ‑ 37, 8 April 2015).

24 . Furthermore, in accordance with Article 37 § 1 in fine , the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of this complaint (compare F.G. v. Sweden [GC], no. 43611/11, §§ 77-84, ECHR 2016).

25 . In view of the above, it is appropriate to strike the case out of the list in so far as it relates to the complaint under Article 3 of the Convention.

26 . The applicants also complained that they were not afforded an effective remedy under Polish law by which to lodge their complaint under Article 3 of the Convention. They relied on Article 13 of the Convention which, in its relevant part, provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ...”

27 . The applicants argued that, having submitted an application to have the proceedings concerning their obligation to leave Poland re-opened (see paragraph 9 above), they had had no access to a remedy with an immediate suspensive effect and they had remained under the threat of expulsion.

28 . The Court notes that when the applicants were served with the decision of 18 April 2018 ordering them to leave Poland, they could have lodged an interlocutory appeal, which would have had an automatic suspensive effect. In the case of dismissal of this appeal, they would have had a possibility to lodge an appeal with an administrative court together with an application to have the execution of this decision suspended and would not have been expelled until such an application had been decided upon (see paragraphs 14 - 15 above). However, the applicants did not appeal against the decision of 18 April 2018 (see paragraph 7 above). Neither did they submit any arguments or evidence suggesting that they had been in any way prevented from lodging an interlocutory appeal within the statutory time-limit.

29 . Consequently, the Court considers that the applicants had at their disposal an effective remedy against the decision ordering them to leave Poland, but failed to use it (see, mutatis mutandis , Sakkal and Fares v. Turkey ( dec. ), no. 52902/15, § 64, 7 June 2016). The fact that they could not have done so after the expiry of the statutory time-limit, when lodging an extraordinary remedy such as an application to have the proceedings re ‑ opened, does not change the fact tha t they had been provided with a remedy satisfying the requirements of Article 13 of the Convention.

30 . It follows that the applicants ’ complaint under Article 13 in conjunction with Article 3 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to strike the application out of its list of cases in so far as it relates to the complaint under Article 3 of the Convention;

Declares the remainder of the application inadmissible.

Done in English and notified in writing on 9 July 2020 .

Renata Degener Linos -Alexandre Sicilianos Deputy Registrar President