Communicated on 8 February 2021 Published on 1 March 2021

FIRST SECTION

Application no. 42907/17 A.B. and Others against Poland lodged on 16 June 2017

STATEMENT OF FACTS

1 . The applicants are Mr A.B. (the first applicant) and Mrs A.E. (the second applicant), who are married, their three minor children and Ms A.K. (the third applicant) who has a domestic partnership with the first and second applicant. All the applicants are Russian nationals.

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

3 . Between 21 February and 14 April 2017 the applicants travelled to the Polish-Belarusian border crossing at Terespol on twenty-four 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 he and his father had been persecuted by officers of the Kadyrov regime, who had threatened to confiscate their farm and had accused them of having ties to Wahhabism and of supporting terrorism. After their refusal to give up their farm, the first applicant had been arrested and tortured on three different occasions. He alleged that he had been beaten, submitted to electroshocks and strangled. On another occasion, he had again been arrested and the second and third applicants had been taken to the police station, threatened and instructed to convince the first applicant to pay money in exchange for his release. Subsequently, the first applicant ’ s cousin had been charged with terrorism and the first applicant had been threatened with similar charges, but the charges had been dropped when his father agreed to give up their family farm. 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 and that 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 all occasions 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 in particular ( i ) the wish to work in Europe, (ii) loss of family business and financial difficulties, (iii) lack of employment opportunities in Chechnya, (iv) the wish to provide their children with a better future, and (v) the wish to join family members who were living in Poland and could help them find employment. The applicants did not appeal against the administrative decisions issued on those occasions.

6 . On eight further occasions in April and May 2017 the applicants again travelled to the border crossing at Terespol . On those occasions 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 into Poland and returned to Belarus.

7 . On 16 June 2017, when the applicants 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, the applicants 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 and other inhuman and degrading treatment.

8 . At 10.48 a.m. on 16 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 30 June 2017. The Government were informed of the interim measure before the planned time of expulsion. The applicants were nevertheless returned to Belarus at 11.25 a.m. The official note prepared by the border guards on this occasion stated that, when at the border, the applicants had expressed the wish to enter Poland because they had lost all their property, had debts and wished to live and work in Europe.

9 . On 19 June 2017 the applicants returned to the border checkpoint at Terespol . They submitted that they were carrying ( i ) a copy of a letter informing their representative of the Court ’ s decision concerning the interim measure and (ii) a written application for international protection. They had also clearly expressed a wish to lodge this application.

10 . At the same time as the applicants were present at the border crossing, a Polish lawyer cooperating with the applicants ’ representative sent a copy of the applicants ’ application for international protection vi a email, fax and ePUAP to the Border Guard at Terespol and to the Polish Border Guard headquarters in Warsaw. She also informed the department of the Ministry of Foreign Affairs in charge of dealing with proceedings before international human-rights bodies (where the agent of the Polish Government in charge of dealing with the Court is based) of that fact. In her letter she also made reference to the interim measure indicated by the Court on 16 June 2017 under Rule 39 of the Rules of Court.

11 . The Government alleged that, when present at the border, the applicants had not expressed a wish to apply for international protection, nor had they presented any documents. The official notes prepared by the officers of the Border Guard stated that during their questioning on 19 June 2017 the applicants submitted that they wished to enter Poland because they had not wished to live in Chechny a any longer, because they had lost their property, had debts and because they wanted to live in Poland.

12 . On 23 June 2017 the Government requested the Court to lift the interim measure indicated under Rule 39 of the Rules of Court. They argued that the applicants had never requested international protection, nor given any reasons to justify such protection. The Government stated that, in their opinion, the applicants had abused the interim measure in order to pressurise the Polish Border Guard officers into giving them permission to enter Poland.

13 . On 30 June 2017 the Court (the duty judge) decided not to lift the interim measure but to extend it until 21 July 2017, and indicated to the Government that – in the light of the submissions made to the Court (especially the documents attached to the request for an interim measure and the applicants ’ submissions to the Court, copies of which had been sent to the Government) – it appeared that the applicants had tried to submit a request for international protection.

14 . On 17 July 2017 the applicants informed the Court that they had left the are a of the Polish border and returned to Russia. Consequently, on 19 July 2017 the Court (the duty judge) decided to discontinue the application of the interim measure in the applicants ’ case.

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. Consequently – in their opinion – they were put at risk of chain ‑ refoulement to Russi a where they could face torture or inhuman treatment.

17 . 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.

18 . Under Article 13 of the Convention taken 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.

19 . Moreover, under Article 34 of the Convention the applicants complain that the Polish authorities did not comply with an interim measure indicated in their case under Rule 39 of the Rules of Court.

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 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, § 220, cited above).

4. Having regard to the State ’ s obligations to comply with an interim measure issued by the Court (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, ECHR 2005-I), has there been any hindrance by the State in the present case with the effective exercise of the applicants ’ right of application, ensured by Article 34 of the Convention?

APPENDIX

(anonymity has been granted)

No.

Applicant ’ s Name

Birth year

Nationality

1Mr A. B.

1991Russian

2Mrs A. E.

1992Russian

3Ms A. K.

1996Russian

4I. B.

2009Russian

5A. B.

2012Russian

6A. B.

2015Russian