Communicated on 23 February 2021 P ublished on 15 March 2021

FIRST SECTION

Application no. 4457/18 Z.E. and Others against Poland lodged on 17 January 2018

STATEMENT OF FACTS

1 . A list of the applicants is set out in the appendix. The applicants are a mother and her four children (three minors and one adult), who are Russian nationals of Chechen origin. The applicants are living in Chechnya. The applicants are represented by M. Jaźwińska, a lawyer practising in Warsaw.

2 . The facts of the case, as submitted by the applicants, may be summarised as follows.

3 . In 2013, the applicants and the first applicant ’ s husband - the children ’ s father, were stopped while illegally crossing the Polish border.

4 . When various sets of asylum proceedings were on-going in Poland, the applicants and the first applicant ’ s husband twice left Poland for Germany.

5 . In 2016 their first asylum proceedings ended with a refusal to grant them the asylum sought. The second asylum proceedings were discontinued due to the applicants ’ being absent from Poland.

6 . On an unspecified date, the first applicant obtained a “religious divorce” from her husband who returned to Chechnya. From that time on, the first applicant pursued the migration proceedings described below on her own behalf and on behalf of her children.

7 . On 25 January 2019 the Court decided not to indicate to the Government of Poland, under Rule 39 of the Rules of the Court, the interim measure which the applicants had sought to ensure that they would not be removed from Poland.

8 . On 1 March 2019 the Polish authorities deported the first applicant and her children to Russia.

9 . The first applicant is currently living in Chechnya in her mother ’ s village. Her children – the remaining applicants - have been taken away from her and are living in Chechnya with their father.

(a) Decision obliging the applicants to leave Poland

10 . On 29 July 2016 the Border Guard ( Komendant Placówki Straży Granicznej ) issued a decision obliging the applicants to leave Poland (no. MO-SZ/238/D-ZDP/2016). The applicants did not appeal.

(b) Proceedings for asylum

11 . On 29 July 2016 the applicants lodged a new request for asylum on the grounds that, if returned, they would be at real risk of suffering violence at the hands of the first applicant ’ s husband and of the children being taken away from the first applicant by their father.

12 . On 17 May 2017 the Head of the Aliens Office ( Szef UrzÄ™du do Spraw Cudzoziemców ) refused to grant this asylum request (DPU ‑ 420 ‑ 3236/SU/2016). That decision was upheld by the higher instance authorities, namely, the Refugee Board ( Rada do spraw cudzoziemców ) on 27 September 2017 and a Regional Administrative Court ( Wojewódzki SÄ…d Administracyjny ) on 5 October 2018. The authorities considered that the domestic violence against the first applicant and one of her children had indeed occurred but that it was not systematic.

13 . On 18 October 2019 the Supreme Administrative Court ( Naczelny Sąd Administracyjny ) dismissed the applicants ’ cassation appeal against this judgment.

(c) Proceedings for authorisation of the applicants ’ stay in Poland on humanitarian grounds

14 . On 5 January 2018 the Border Guard refused to authorise the applicants ’ stay in Poland on humanitarian grounds, which had been solicited by the applicants on the same grounds as their most recent asylum application.

15 . On 30 April 2018 the head of the Aliens Office upheld that decision.

16 . The authorities obtained the following evidence: a testimony from a fellow asylum-seeker who submitted that the fist applicant and the children had been daily beaten and subjected to other forms of violence and harassment at the hands of the first applicant ’ s husband; submissions of two of the first applicant ’ s children who had recounted various instances of daily violence at the hands of their father; and other materials including psychologists and teachers ’ reports.

17 . The authorities concluded that the case materials did not confirm that the applicants had suffered severe violence at the hands of the first applicant ’ s husband. In particular, the submissions of the persons concerned differed in important details and the alleged domestic violence had never been brought to the attention of the administration of the refugees ’ centre in which the family had been living. Lastly, the authorities attached importance to the fact that the first applicant ’ s ex-husband had ceased contact with the applicants and that it was unlikely that he would seek to resume it if the applicants returned to Russia. As to the risk that the first applicant ’ s minor children would be separated from her, the authority found, relying on relevant reports, that in Russia, family courts commonly attribute child custody to mothers. In Chechnya, women have the same legal instruments of protection but they choose to follow the local customs and leave the children with the father. The authorities also found that the poor psychological condition of the first applicant ’ s eldest child resulted from his parents ’ irresponsible decisions to flee to Germany, thus breaking bonds which the boy had created within the social environment of the refugees ’ centre in Bialystok. Overall, the applicants did not comply with the requirements for residency on humanitarian grounds under the applicable Polish law.

18 . The applicant appealed against that decision and applied for the stay of its execution.

19 . On 31 August 2018 the Regional Administrative Court issued an interim decision, staying the execution of the decision of 30 April 2018 on the following grounds: (i) the first applicant had shown that, in the event of the family ’ s return to Russia, a risk existed that the first applicant ’ s ex ‑ husband would attempt to take the minor children away from the mother in line with local customs; and (ii) the applicants ’ enforced departure from Poland would render their participation in the asylum proceedings impossible and thus breach their right of access to a court.

20 . On 5 December 2018 the Supreme Administrative Court quashed the interim decision of 31 August 2018 and refused to stay the execution of the decision of 29 July 2016.

21 . The Supreme Administrative Court held that under the impugned decision of 30 April 2018, the applicants were not under the obligation to leave Poland. Such obligation would arise only from a decision obliging the applicants to leave the territory. A decision to that effect was issued in respect of the applicants on 29 July 2016. That decision was final and binding as the applicants did not appeal against it in due time. The court observed that the latter decision could, nevertheless, have been stayed in the circumstances of the case only if the applicants had proved that their return to Russia would cause them severe and irreparable harm. The allegations of the risk of domestic violence and the risk that the applicants would be separated by the children ’ s father were being examined in the main proceedings on the merits and as such could not constitute the grounds of an ad interim decision. That decision was served on the applicants on 18 January 2019.

22 . The applicants appealed, arguing inter alia that the authority had erred in its facts assessment because an expert report on the psychological state of the applicant ’ s eldest son had not been sought in the case.

23 . On 12 March 2019 the Regional Administrative Court dismissed the applicants ’ appeal against the decision of 30 April 2018.

24 . On 18 October 2020 the Supreme Administrative Court dismissed the applicants ’ cassation appeal.

25 . The courts considered that the authority had based its decision on sufficiently ample material and had not made any errors of judgment. The report of a court-appointed expert in respect of the applicant ’ s eldest son was therefore redundant. Overall, the courts subscribed to the authority ’ s finding that the applicants ’ submissions about the domestic violence suffered at the hands of the first applicant ’ s husband and the children ’ s father, lacked credibility.

26 . On 22 January 2019, the first applicant registered a criminal complaint with the Polish police, stating that, between an unspecified date in 2016 and 13 November 2018, her husband had uttered threats of killing and harming her.

27 . On 11 July 2017 the Bialystok District Court ( Sąd Rejonowy ) ordered the applicants ’ detention in the Guarded Centre for Aliens in Kętrzyn. On 31 July 2017 the Bialystok Reginal Court upheld that decision.

28 . On 28 August 2017 an expert psychologist from a non-governmental organisation drew up a report in respect of the applicant ’ s two eldest sons. The expert concluded that the teenagers could no longer cope with the levels of distress which they had suffered since the beginning of the family ’ s detention. The expert recommended that the applicants be released.

29 . On 23 September 2017 a psychologist from a psychological clinic in Kętrzyn informed the authorities that the two teenagers required psychotherapy.

30 . On an unspecified date the guarded centre ’ s in-house psychologist stated that the applicants were healthy and that the psychotherapy which had been made available to the first applicant and her eldest son, could be continued in the centre.

31 . The applicants ’ administrative detention was subsequently extended by a series of decisions issued by the Kętrzyn District Court (6 October 2017 and 5 January 2018) and upheld by the Olsztyn Regional Court (decisions of 24 November 2017 and 9 February 2018).

32 . On 19 January 2018 the Chief Border Guard dismissed the applicants ’ appeal to have their detention lifted. On 23 February 2018, Kętrzyn District Court upheld that decision.

33 . On 30 March 2018 the Kętrzyn District Court again extended the measure in respect of all applicants until 4 July 2018.

34 . On 25 May 2018 the Olsztyn Regional Court quashed that decision and lifted the detention measure as a result of the applicants ’ interlocutory appeal.

35 . The court relied on the opinion obtained for the purpose of the proceedings from the court-appointed expert in psychology. The expert observed that the first applicant ’ s two youngest children functioned normally and coped with detention. The applicant ’ s second son showed hypersensitivity and other behaviour difficulties but, overall, had managed to develop the necessary mechanism to cope with detention. The applicant ’ s eldest son suffered from depression and received pharmacological treatment and psychotherapy. The boy was overstressed and prone to infections. He suffered from prolonged illnesses, physiological disorders, lack of appetite and weight loss. The expert found it worrying that the boy tended to withdraw and isolate himself. The expert found that the mental and physical state of the two older boys was primarily caused by their detention but also their fear of being sent back to their home country, as well as their family history, namely, their exposure to domestic violence and their migration. Overall, the expert concluded that none of the applicants would be exposed to harm if their detention was extended until 4 July 2018.

36 . In spite of the latter conclusion of the expert, the court considered that keeping the family in detention would be contrary to the interests of the first applicant ’ s eldest son. The court also suggested that an alternative solution to detention seemed possible.

37 . The appellate court also observed that the enforcement of the 2016 decision obliging the applicants to leave Poland was indeed impossible in view of Russia ’ s refusal to agree to readmit the applicants. The detention could no longer continue, however, in light of the psychological reports, which unequivocally concluded that the measure had produced far reaching negative effects on the first applicant ’ s children, especially the two older ones.

38 . The relevant international law and relevant domestic law and practice are set out in the judgment in the cases of Bilalova and Others v. Poland , no. 23685/14, § §29-34, 26 March 2020 and Bistieva and Others v. Poland , no. 75157/14 , §§ 34-42, 10 April 2018.

COMPLAINTS

39 . The applicants complain under Article 3 of the Convention that their lengthy detention in a guarded centre for aliens caused them severe psychological suffering with long-lasting negative effects. In this respect they also complain under Article 8 of the Convention that their placement in the guarded centre for aliens was a disproportionate measure.

40 . The applicants also complain under Article 5 § 1 (f) of the Convention that their administrative detention was not in accordance with the law for two reasons. Firstly, pursuant to the applicable provisions, as victims of domestic violence, they should have remained at liberty. Secondly, the decision about their deportation became unenforceable in light of the proceedings for authorisation of the applicants ’ stay in Poland on humanitarian grounds. It follows that, from that moment onwards, their detention was no longer based on a future deportation. The applicants also argue that their detention was not necessary, especially in respect of the children. The applicants could have stayed in an open centre for foreigners or with the first applicant ’ s brother who was residing in Poland legally. The domestic courts imposing and extending the measure failed to give any consideration to alternative arrangements. In the context of this complaint, the applicants submitted that they had earlier fled to Germany only to escape ill-treatment at the hands of the first applicant ’ s husband and the children ’ s father.

41 . The applicants complain about a breach of Article 5 § 4 of the Convention on account of the authorities ’ failure to timely serve on the applicants or their lawyer, any of the applications for the applicants ’ detention and for the extension of the detention measure. Moreover, the authorities did not ensure free legal representation for the first applicant ’ s children. The above omissions effectively hindered the applicants in the preparation of their defence. Lastly under this heading, the appellate court ruled on the applicants ’ interlocutory appeal against the extension of their detention with a significant delay, namely 24 November 2017, that is to say, almost two months after the decision of the first-instance court.

QUESTIONS TO THE PARTIES

In so far as the applicants were committed to the Guarded Centre for Aliens from 11 July 2017 to 25 May 2018,

1. Was the applicants ’ deprivation of liberty in compliance with Article 5§ 1 (f)?

2. Did the applicants have at their disposal an effective procedure whereby they could challenge the lawfulness of their detention, as required by Article 5 § 4 of the Convention?

3. Were the applicants subjected to treatment contrary to Article 3 of the Convention?

4. Has there been a violation of the applicants ’ right to respect for their private and family life, contrary to Article 8 of the Convention?

APPENDIX (anonymity has been granted)

No.

Applicant ’ s Name

Birth year

Nationality

Place of residence

1Z . E .

1978Russian

Russia

2M . U.

2007Russian

Russia

3R . U .

2000Russian

Russia

4R . U .

2004Russian

Russia

5S . U .

2008Russian

Russia