Communicated on 8 February 2021 Published on 1 March 2021

FIRST SECTION

Application no. 41764/17 T.Z. and M.M. and Others against Poland lodged on 13 June 2017

STATEMENT OF FACTS

1 . The applicants are Mrs T. Z. (the first applicant) and Mr M.M. (the second applicant), who are married, and their four minor children. All the applicants are Russian nationals.

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

3 . Between August 2016 and March 2017 the applicants travelled to the Polish-Belarusian border crossing at Terespol on at least seventeen 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 expressed fears for their safety. They told the border guards that they were from Chechnya. The first applicant submitted that when she was still in Chechnya she had been stalked by a man whose advances she had rejected and who had links to the military. She alleged that the man in question had threatened her after she married the second applicant. The applicants further submitted that on one occasion the second applicant had been detained by the police on false charges. He had been taken to an undisclosed location, tortured and threatened. Subsequently, the unidentified persons had tried to set the applicants ’ house on fire. After that the applicants had left their home and had travelled 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 were about to expire, 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 when 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, for example, their wish to settle in Poland due to financial difficulties that they had faced in Chechnya and the wish to educate their children in Europe and to provide them with a better future. The applicants did not appeal against the administrative decisions issued on those occasions.

6 . In March and April 2017 the applicants travelled to the border crossing at Terespol on three occasions. 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 applicants were again denied entry to Poland and returned to Belarus.

7 . On 13 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 they would face the threat of torture or other forms of inhuman and degrading treatment.

8 . At 10.05 a.m. on 13 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 27 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 and to travel to Germany in order to join the second applicant ’ s sister who resided there, and to start to live and work there.

9 . On 19 June 2017 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.

10 . On 27 June 2017 the Court (the duty judge) extended the interim measure previously indicated on 13 June 2017 under Rule 39 of the Rules of Court until 27 July 2017 and requested further information from the parties concerning, among other things, the risk of the applicants being expelled pending the asylum proceedings.

11 . 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 20 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 13 June 2017.

12 . 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

13 . 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. Consequently – in their opinion – they were put at risk of chain ‑ refoulement to Russia, where they could face torture or inhuman treatment. They stress that they faced repeated refusals to accept their applications for international protection, even at times when they attempted to submit them in writing.

14 . Under 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 individual situation, in particular the content of the statements that they made when present at the border.

15 . 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, §§ 204-211, 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 to 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, § 220 ).

APPENDIX (anonymity has been granted)

No.

Applicant ’ s Name

Birth year

Nationality

1Mrs T. Z.

1981Russian

2Mr M.M.

1976Russian

3D.M.

2009Russian

4S.M.

2010Russian

5S.M.

2012Russian

6K.M.

2014Russian