Communicated on 16 December 2019

FIRST SECTION

Application no. 47888/19 A . A . against Poland lodged on 29 August 2019

STATEMENT OF FACTS

The applicant, Ms A. A., is a Burundian national, who was born in 1992 and is currently detained in Kętrzyn . She is represented before the Court by Ms M. Jaźwińska , a lawyer practising in Warszawa.

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

On 19 January 2019 the applicant arrived in Poland by plane. On arrival she presented a Swiss ID, which was identified as fake and the applicant was arrested. Subsequently, she disclosed her original Burundian passport.

On 21 January 2019 the Warsaw District Court authorised the applicant ’ s detention in the K ę trzyn Guarded Centre for Aliens (“the Centre”) until 21 March 2019. The court referred to the fact that the applicant had attempted to cross the border using fake documents.

On 21 February 2019 a psychologist from the Centre issued an opinion, according to which the applicant did not suffer from post-traumatic stress disorder (“PTSD”) and did not require psychiatric evaluation. The expert found, however, that she did need psychological treatment.

On 18 March 2019 the applicant consulted another psychologist who confirmed that she was a victim of violence and that her emotional state had worsened. The psychologist recommended psychiatric consultation and treatment.

On 21 March 2019 the K ę trzyn District Court extended the applicant ’ s detention for the period required to give a final decision in the proceedings for international protection that is until 17 July 2019. The court referred to the risk that she might flee the country. In so far as the applicant submitted that being a victim of violence she should not have been detained in a guarded centre, the court found that according to the psychological examination of 21 February 2019 she had not suffered from PTSD.

The applicant ’ s lawyer appealed against this decision on 4 April 2019. She submitted that it was undisputable that the applicant had been subjected to violence and had permanent scars. The fact that she had not been diagnosed with PTSD had not been relevant.

On 10 May 2019 the Olsztyn Regional Court dismissed her appeal. It was held that the proceedings for international protection were still pending and the administrative authorities needed to collect evidence. Moreover, there was a risk that the applicant might attempt to flee the country as she had already attempted to cross the border while using fake documents. The Guarded Centre for Aliens in Kętrzyn provided adequate living conditions and medical care to the applicant. While it is true that she had suffered a permanent injury in the past she had not been diagnosed with PTSD.

On 15 July 2019 the K ę trzyn District Court again extended the applicant ’ s administrative detention until 14 October 2019 referring to the same grounds.

According to the information available to the Court the applicant is still detained.

On 21 January 2019 the applicant applied for international protection. She submitted that she had been subjected to violence in the context of the 2015 Burundian unrest, was a victim of wartime rape and had provided medical certificate in that regard.

On 13 March 2019 the Head of the Aliens Office ( Szef Urzędu do Spraw Cudzoziemców ) gave a decision refusing to grant the applicant refugee status. It was noted that the applicant was a victim of violence – rape, as a consequence of which she had suffered permanent injuries. At the same time this act had not occurred because of ethnic or political reasons but happened during an unrest which had affected the whole country. Consequently, there was no reason to believe that the applicant would face any persecution in Burundi.

On 8 July 2019 the Refugee s Council ( Rada do Spraw Uchodźców ) upheld the first ‑ instance decision.

On 15 July 2019 the applicant appealed to the Warsaw Regional Administrative Court ( Wojewódzki Sąd Administracyjny ).

It would appear that the proceedings are pending.

On 16 July 2019 the Chief of the Border Guards issued a decision obliging the applicant to return to their home country and banning her from re ‑ entering the territory of Poland and other Schengen countries for one year. The applicant appealed on 26 July 2019.

It would appear that the proceedings are pending.

The procedure for the granting of refugee status and tolerated stays to aliens and for their expulsion is regulated by the Act of 13 June 2003 on granting protection to aliens within the territory of the Republic of Poland ( Ustawa o udzielaniu cudzoziemcom ochrony na terytorium Rzeczypospolitej Polskiej ) (“the 2003 Act”). The relevant provisions are Sections 24 § 2; 33 § 4; 40 § 2(2); 62 § 2; 67 § 1; 87; 88(a); 88(b); 89 and 89 (b) of this act.

Matters related to the administrative detention of aliens, their placement in and release from guarded centres, the living conditions in such facilities, including the provision of healthcare are regulated by the Aliens Act of 12 December 2013 ( Ustawa o cudzoziemcach ), which entered into force on 1 May 2014, replacing the Aliens Act of 13 June 2003. The relevant provisions are Sections 398 § (2) and § 2(1); 401; 403; 406; 407; 414 § 3; 416 § 1(2) and § 2; 417 and 426 of the 2013 Act.

Pursuant to Section 400 of the Aliens Act and Section 88a (3)of the 2003 Act, a decision to place a foreigner in a guarded centre is not issued if that person ’ s physical and/or psychological condition justifies the presumption that her or she was subjected to violence.

COMPLAINTS

1. The applicant complains under Article 5 § 1 (f) of the Convention that her detention is arbitrary and contrary to the domestic law, which does not allow for the detention of victims of violence. In particular, she submits that the courts disregarded her submissions that she was a victim of rape and that she was still suffering mentally from this traumatic experience.

2. She further complains under Article 5 § 4 of the Convention that she was not allowed to participate in court hearings concerning her appeals against the placement and prolongation of her detention in the guarded centre. In addition, her appeal against the order of 21 March 2019 on extension of detention was examined only on 10 May 2019.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of her liberty in breach of Article 5 § 1 (f) of the Convention? In particular, was her detention lawful in terms of domestic law and free from arbitrariness in the context of the first limb of Article 5 § 1 (f) (see Saadi v. the United Kingdom [GC], no. 13229/03, § 74, ECHR 2008)?

2. Did the applicant have at her disposal an effective procedure by which she could challenge the lawfulness of her detention, as required by Article 5 § 4 of the Convention? In particular:

( i ) did the decisions concerning the review of the applicant ’ s detention comply with the requirement of “s peediness” envisaged by Article 5 § 4 of the Convention?

(ii) did the applicant or her lawyer participate in the court hearings concerning the appeals against the decision placing her and prolonging her placement in the Guarded Centre for Aliens?