Communicated on 7 September 2017

FIRST SECTION

Application no 51246/17 D.A. and Others against Poland lodged on 20 July 2017

STATEMENT OF FACTS

1 . The applicants, Mr D.A. , Mr M.A. , and Ms S.K. , are Syrian national s who currently reside in Belarus. The first two applicant s are brothers, th e first and the third applicant are married. The President has granted the applicants ’ request s for their identit ies not to be disclosed to the public (Rule 47 § 4). The applicants are represented before the Court by Ms M. Górczyńska and Mr J . Bia łas , lawyers practising in Warsaw.

A. The circumstances of the case

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

3 . On four occasions in July 201 7 the applicant s travelled to the Polish ‑ Belarus ian border crossing at Terespol . According to the applicants, each time they expressly stated a wish to lodge an application for international protection . They also asked for an Arabic interpreter to be present . They refused to sign documents with which they were presented, as they were exclusively in Polish and the applicants d id not understand them .

4 . According to the applicant s , when talking to the border guards they expressed fears for their safety. They stated that they came from Syria where a violent armed conflict wa s going on . The first and second applicant s had received conscription orders from the Syrian A rmy and had failed to comply with them. They submit that this fact puts them at r isk of fifteen years ’ imprisonment i f returned to Syria. Moreover, the first and second applicant s declared that they belong to the Druze ethnoreligious group , which is one of the most persecuted minorities in Syria, both by the Assad regime and by Sunni extremists.

5 . The applicants also stated that although they had resided in Belarus since 2013 (the first and second applicant) and 2015 (the third applicant) they could not continue their stay in that country , as their visa s had expired and as in practice it would be impossible for them to obtain international protection there.

6 . Each time the border guards summarily turned the applicants away to return to Belarus.

7 . It appears from the information submitted by the applicant s and the respondent Go vernment that on every occasion when the applicant s presented themselves at the border crossing in Terespol , administrative decisions were issued to the effect of turning the applicant s away from the Polish border on the grounds that they did not have any documents authorising their entry to Poland and that they had not stated that they had been at risk of persecution in their home country but w ere in fact trying to emigrate for professional or personal reasons ( specifically in order to join their family who lived in Europe or to pursue professional careers outside of Belarus) . The applicants have not informed the Court whether they appealed against any of those decisions issued before 20 July 2017 .

8 . On 20 Ju ly 2017, when the applicant s presented themselves at the border crossing in Terespol , their representative submitted a request under Rule 39 of the Rules of Court asking the Court to prevent the applicant s from being removed to Belarus.

9 . On 20 July 2017 , at 10.08 a.m. the Court (the duty judge) decided to apply Rule 39 of the Rules of Court, indicating to the Government that the applicant s should not be removed to Belarus until 3 August 2017. The Government were informed of the interim measure before the planned time of expulsion. The applicant s were returned to Belarus at 11.25 a.m.

10 . On 21 July 2017 the applicant s returned to the border checkpoint in Terespol carrying with them the copy of a letter informing their representative of the Court ’ s decision concerning the interim measure. The y submit ted that they had expressly stated that they had s ought international protection and had showed the border guards copies of the letter s summoning the first and the second applicant s to serve in the Syrian Army . The applicants allege d that when confronted with the situation of the officers of the Border Guard ignoring their requests for international protection, they had tried to record the course of the interview s on their mobile phones. However, when the officer s conducting the interviews had realised that , they had demanded the applicants ’ phones and erased the recordings. The applicants had been again refused entry to Poland .

11 . The applicant s lodged appeals against the decisions refusing them entry to Poland issued on 20 and 21 June 2017. Those appeals are currently pending before the head of the National Border Guard ( Komendant Główny Straży Granicznej ).

12 . On 21 July 2017 the Government requested that the Court reconsider its decision concerning the interim measure indicated under Rule 39 of Rules of Court. The Government argued that the applicant s had never requested international protection, nor ha d they giv en any reasons for such protection.

13 . On 3 August 2017 the Court (the duty judge) decided to prolong the interim measure until 8 September 2017 and to clarify that the indication, made to the Government on 20 July 2017 – that the applicant s should not be removed to Belarus – should be understood in such a way that – when they presented themselves at a Polish border checkpoint – the applicants ’ application s for asylum should be received and registered by the Border Guard and forwarded for examination by the competent authorities. Pending examination of the asylum application, the applicant s should not be sent back to Belarus.

14 . On 7 September 2017 the Court (the duty judge) decided to prolong the interim measure until further notice.

B. Relevant domestic law and practice

15 . The procedure for granting refugee status and “tolerated stays” to aliens and for their expulsion is regulated by the Protection of Aliens Within the Territory of t he Republic of Poland Act of 13 June 2003 ( Ustawa o udzielaniu cudzoziemcom ochrony na terytorium Rzeczypospolitej Polskiej – hereinafter “the 2003 Act”).

16 . The grounds and conditions for granting refugee status or supplementary international protection are set out in sections 13-22 of the 2003 Act. The procedure of granting protection is set out in sections 23-54f of that Act.

17 . Pursuant to sections 24 and 29 of the 2003 Act the Border Guard is obliged to provide an alien who expresses the wish to apply for international protection in Poland with the possibility to lodge such an application and to facilitate it, inter alia , by ensuring the assistance of a translator and by giving – at the alien ’ s request or with their consent – the representatives of international or non-governmental organisations assisting refugees access. The person who lodged an application for international protection is obliged to report to the reception centre indicated by the border guards (paragraph 1 point 5i of section 30 of the 2003 Act). The application for international protection is transferred for examination to the head of the Aliens Office ( Szef Urzędu do Spraw Cudzoziemców ), who should decide on it within six months (paragraph 1 of section 34 of the 2003 Act).

18 . A decision of the head of the Aliens Office can be appealed against by the alien to the Refugee Board ( Rada do Spraw Uchodźców ) . A decision of the Refugee Board can be appealed again if he or she lodges a complaint with the Warsaw Regional Administrative Court ( Wojewódzki Sąd Administracyjny w Warszawie ) and – as the last instance – a cassation appeal with the Supreme Administrative Court ( Naczelny Sąd Administracyjny ).

19 . If an application for international protection and an appeal against the decision of the head of the Aliens Office has been lodged, the enforcement of the return procedure is not initiated and any procedure that has already been initiated is suspended. The complaint to the administrative court does not have automatic suspensive effect.

20 . When an alien present at the border checkpoint does not express a wish to lodge an application for international protection and does not have a valid document allowing him or her to enter Poland, the border guards must instigate a refusal-of-entry procedure, which is regulated by sections 33 and 34 of the Aliens Act of 12 December 2013 ( Ustaw o cudzoziemcach – “the 2013 Act”).

21 . Under those provisions the decision is issued by the head of the relevant unit of the Border Guard ( Komendant placówki Straży Granicznej ) and is executed immediately. The person who was denied entry to Poland can appeal against this decision to the head of the National Border Guard and, subsequently, lodge a complaint with the Warsaw Regional Administrative Court and a cassation appeal with the Supreme Administrative Court. None of those remedies has suspensive effect.

COMPLAINTS

The applicant s complain that the fact that the Polish authorities repeatedly denied them the possibility to lodge an application for international protection was in breach of Article 3 of the Convention.

Under Article 4 of Protocol No. 4 to t he Convention, the applicants alleg e that their situation was not reviewed individually and that they are victim s of a general policy adopted by the Polish authorities and aimed at reducing the number of asylum applications registered in Poland.

Under Article 13 in conjunction with Article 3 of the Convention and Article 4 of Protocol No. 4 to the Convention the applicant s state that an appeal against the decision denying them entry to Poland is not an effective remedy as its examination is not speedy enough, it has no suspensive effect and is not examined by an independent body.

Moreover, the applicant s complain that the fact that the Polish authorities did not comply with the interim measure granted by the Court is in breach of Article 34 of the Convention.

QUESTIONS to the parties