Communicated on 8 February 2021 Published on 1 March 2021

FIRST SECTION

Application no. 39028/17 A.I. and others against Poland lodged on 2 June 2017

STATEMENT OF FACTS

1 . The applicants are Mr A.I. (the first applicant) and Mrs Z.I. (the second applicant), Ms I.I. (the third applicant) and four minor children of the first and second applicants. The first and second applicants are married, the third applicant is the first applicant ’ s mother. All the applicants are Russian nationals.

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

3 . In October and November 2016 the applicants travelled to the Polish ‑ Belarusian border crossing at Terespol on thirteen occasions. According to them, on each occasion they expressed a wish to lodge an application for international protection.

4 . According to the applicants, when talking to the border guards they had expressed fears for their safety. They had told the border guards that they were from Chechnya. The first applicant submitted that on at least two occasions in 2016 he had been detained by officers of the special services, tortured and questioned, among other things, about his religious affiliation with Sunni Islam. Subsequently, he had received further summonses to police interrogations. After that he, the second applicant, their children and the third applicant had left their home and had travelled together to Belarus, with the aim of travelling onwards to Poland. They told the border guards that they could not remain in Belarus as their visas had expired, and that in practice it would be impossible for them to obtain international protection there. The border guards then summarily turned them away, sending them back to Belarus.

5 . On each occasion on which the applicants presented themselves at the border crossing at Terespol , administrative decisions were issued turning them away from the Polish border on the grounds that they did not have any documents authorising their entry into Poland and that they had not stated that they were at risk of persecution in their home country but that they were simply trying to emigrate for economic or personal reasons. The official notes prepared by the officers of the Border Guard observed that the applicants had cited ( i ) the first applicant ’ s fear of criminal responsibility for taking part in battery, (ii) loss of employment and lack of opportunities in Chechnya, (iii) their wish to educate their children in Europe and to provide them with a better future, (iv) obtaining financial aid from the state, and (v) securing a better future for the family. The applicants did not appeal against the administrative decisions issued on those occasions.

6 . In February 2017 the first applicant sent a letter to the Head of the National Border Guard in which he questioned the decision refusing him entry issued on 30 November 2016, asked for asylum, presented his account of his persecution in Chechnya and attached some witness statements. As the letter had been written in Russian, on 27 February 2017 the Head of the National Border Guard informed the first applicant that in order for it to be examined he had to submit its translation into Polish. The first applicant failed to do so.

7 . On 17 March 2017 the applicants again travelled to the border crossing at Terespol . This time they had with them a written application for international protection which – according to their statements – they tried to lodge with the officers of the Border Guard. The official note prepared by an officer of the Border Guard on that occasion stated that the first applicant wanted to enter Poland with his family because of the problems in Russia caused by their friends. The applicants were again returned to Belarus.

8 . On 25 May 2017 the applicants were informed by the Belarusian authorities that they had to leave Belarus by 4 June 2017, otherwise, they would face deportation. Their passports were stamped to indicate this time ‑ limit.

9 . On 27 May 2017 the applicants travelled again to the border crossing in Terespol . According to their statements they tried to submit their applications for international protection, which they had with them in writing, and told the officers of the border guards about the decision obliging them to leave Belarus. They were again denied entry into Poland. The official note prepared on that day stated that the applicants wished to travel to Europe in search of a better life.

10 . On 2 June 2017, when the applicants again presented themselves at the border crossing at Terespol , their representative lodged a request under Rule 39 of the Rules of Court asking the Court to prevent the applicants from being removed to Belarus. He indicated that, as Russian citizens, they had no genuine possibility of applying for international protection in Belarus and were at constant risk of expulsion to Chechnya, where the first applicant would face the threat of torture or other forms of inhuman and degrading treatment.

11 . At 10.10 a.m. on 2 June 2017 the Court (the duty judge) decided to apply Rule 39 of the Rules of Court, indicating to the Polish Government that the applicants should not be removed to Belarus until 16 June 2017. The Government were informed of the interim measure before the planned time of expulsion. Nevertheless, the applicants were returned to Belarus at 11.25 a.m. The official note prepared by border guards on this occasion stated that, when at the border, the applicants had expressed the wish to enter Poland in order to receive social benefits due to the family ’ s difficult financial situation.

12 . On the same day (2 June 2017) in the afternoon the applicants returned to the border checkpoint at Terespol , carrying with them an application for international protection and a copy of a letter informing their representative of the Court ’ s decision concerning the interim measure. This time they were allowed to enter Poland and submit applications for international protection. The proceedings concerning those applications seem to be pending.

13 . On 16 June 2017 the Court (the duty judge) extended the interim measure previously indicated on 2 June 2017 under Rule 39 of the Rules of Court until 13 July 2017 and requested the parties to provide further information concerning, among other things, the risk of the applicants being expelled pending asylum proceedings.

14 . Upon receiving that information, and taking into account the fact that the applicants had been admitted to Poland and – pending proceedings concerning their application for international protection – were not at risk of expulsion, on 12 July 2017 the Court (the duty judge) decided to lift the interim measure indicated to the Government under Rule 39 of the Rules of Court on 2 June 2017.

15 . The relevant domestic law and practice concerning granting international protection to aliens and the refusal-of-entry procedure are set out in the Court ’ s judgment in the case of M.K. and Others v. Poland (nos. 40503/17, 42902/17 and 43643/17, §§ 67-77, 23 July 2020).

COMPLAINTS

16 . The applicants complain under Article 3 of the Convention that they were returned to Belarus despite the fact that the asylum procedure there was inadequate and did not provide sufficient protection for asylum seekers and that the economic situation of asylum seekers was extremely difficult as they had no possibility to find employment or receive any social benefits. They also submit that the repeated refusals to accept their applications for international protection for review amounted to degrading treatment.

17 . U nder Article 4 of Protocol No. 4 to the Convention they allege that the officers of the Border Guard disregarded their statements concerning their wish to apply for international protection and returned them to Belarus without considering their applications.

18 . Moreover, under Article 13 of the Convention in conjunction with Article 3 of the Convention and Article 4 of Protocol No. 4 the applicants complain that they were deprived of an effective remedy against the decisions refusing them entry to Poland as those decisions were executed immediately and appeal against them did not have a suspensive effect. They also argue that the Head of the National Border Guard, who reviews appeals against the decisions in question, is not an independent body.

QUESTIONS TO THE PARTIES

1. Having regard to the procedural protection from torture and inhuman or degrading treatment, has there been a violation of Article 3 of the Convention on account of the refusal to review the applicants ’ applications for international protection? In particular, before deciding on their return, did the Polish authorities consider the applicants ’ claim that they would be exposed to a risk of being subjected to torture and inhuman treatment if returned to Belarus?

2. Were the applicants, aliens in the respondent State, expelled as part of a collective measure, in breach of Article 4 of Protocol No. 4? Reference is made to the applicants ’ allegation that the decisions concerning the denial of entry were taken without giving consideration to the individual situation of aliens requesting international protection (see M.K. and Others v. Poland , nos. 40503/17, 42902/17 and 43643/17, 23 July 2020).

3. Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 3 of the Convention and Article 4 of Protocol No. 4, as required by Article 13 of the Convention? In particular, can the appeal against the decision of the Border Guard refusing the applicants entry into Poland be considered an effective domestic remedy? Reference is made in particular to the fact that it does not have suspensive effect (see M.K. and Others v. Poland, cited above).

APPENDIX (anonymity has been granted)

No.

Applicant ’ s Name

Birth year

Nationality

1Mr A. I.

1989Russian

2Mrs Z. I.

1990Russian

3Ms I. I.

1959Russian

4B. I.

2008Russian

5I. I.

2010Russian

6A. I.

2013Russian

7S. I.

2016Russian