Communicated on 3 August 2017

FIRST SECTION

Application no 42902/17 M.A. and Others against Poland lodged on 16 June 2017

STATEMENT OF FACTS

1 . The applicants, Mr M . A . (“the first applicant”) and Ms M . A . (“the second applicant”) are Russian nationals who currently reside in Belarus. They have children. The President granted the applicants ’ request for their identity not to be disclosed to the public (Rule 47 § 4). They are represented before the Court by Mr Mikit a Matsiushchankau , a Belarusian human rights defender.

A. The circumstances of the case

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

3 . In the period from April to July 2017 the applicants travelled to the Polish-Belarusian border crossing in Terespol on five occasions. They submit that each time they expressed a wish to lodge an application for international protection which, on at least some of the occasions they had on them in writing (copies of the relevant documents were submitted to the Court).

4 . According to the applicants, when talking to the border guards, they expressed fears for their safety. All applicants had been living in the Chechen Republic. The first applicant stated that he had started to have problems with Russian special services because his relatives had participated in the second Chechen war. The officers of a district police department had come to his home and interrogated him at a police station. H is home had been raided by armed people wearing masks. Subsequently, he had decided to leave the Chechen Republic and had applied for international protection. H e had had to return to the Chechen Republic. He submitted that he had started to work at the Department for Protection. H e had quit that job but before that had happened, he had been asked if he had been planning to join illegal armed groups in Syria. The applicant had been taken to the headquarters of the Department for Protection. He had been asked to become an informant but had rejected the offer. The police officers had come to his home and forcefully taken him to one of the police departments. He had again been asked to become an informant but had refused. Afterwards, he had been tortured. He submitted that had been given electric shocks and beaten on the kidneys, h ead and other parts of his body . In April 2017 he, together with the second applicant and their children, had left their home and headed to Belarus with the aim of crossing into Poland. In April 2017 they had intended to apply for asylum in Poland for the first time. At the same time they stated that they could not continue their stay in Belarus, as their visas had expired and in practice it would be impossible for them to obtain international protection there. The border guards then summarily turned them away to return to Belarus.

5 . It appears from the information submitted by the applicant and the respondent Government that on each occasion that the applicants presented themselves at the border crossing in Terespol , administrative decisions were issued to the effect of turning them away from the Polish border on the grounds that they did not have any documents authorising their entry to Poland and had not stated that they were at risk of persecution in their home country, not trying to emigrate for economic or personal reasons.

6 . The applicants did not appeal against the administrative decisions concerning their denied access to asylum procedures in Poland.

7 . On 16 June 2017, when the applicants 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 applicants from being removed to Belarus.

8 . At 10.48 a.m. the Court (the duty judge) decided to apply Rule 39 of the Rules of Court, indicating to the Government that the applicants should not be removed to Belarus until 30 June 2017. The Court clarified that the indication that the applicants should not be removed to Belarus should be understood in such a way that when they presented themselves at a Polish border checkpoint their application for asylum should be received and registered by the Border Guard and forwarded for examination to the competent authorities. Pending examination of the asylum application, the applicants should not be sent back to Belarus. At the same time the Court asked the Government four factual questions. They were informed of the interim measure before the planned time of expulsion. However, the applicants were returned to Belarus at 11.25 a.m.

9 . On 20 June 2017 the applicants returned to the border checkpoint in Terespol , carrying with them a copy of a letter informing their representative of the Court ’ s decision concerning the interim measure. While the applicants were trying to apply for asylum, their lawyer Sylwi a Gregorczyk -Abram sent their application for asylum to various Polish authorities vi a e-mail, fax and electronic platform for public administration services . The documents were dispatched to the Border Guard headquarters and the Border Guard in Terespol , as well as to the Ministry of Foreign Affairs of Poland.

10 . On 23 June 2017 the Government responded to the Court ’ s questions. The Government argued that the applicants had never requested international protection or given any reasons for such protection. As the applicants had not been allowed into Poland by the border guards, they had not legally been in Poland and therefore could not be removed. The Government stated that, in their opinion, the applicants had abused the interim measure in order to make the Polish border guards allow them entry into Poland. A similar approach was presented by the Government in a letter dated 28 June 2017.

11 . On 30 June 2017 the Court (the duty judge) extended the interim measure until 21 July 2017 and indicated to the Government that in the light of the submissions made to the Court, the Court considered that the applicants had submitted a request for international protection. At the same time the Court expressed concerns as regards the Government ’ s refusal to register the applicants ’ asylum applications.

12 . The applicants arrived at the border checkpoint i n Terespol on one more occasion . They were turned away.

13 . On 19 July 2017 the Court (the duty judge) extended the interim measure until 3 August 2017.

14 . On 1 August 2017 the Court received an application from the applicants ’ representative in which he alleged a violation of ( i ) Article 34 of the Convention (in conjunction with Rule 39 of the Rules of Court); (ii) Article 4 of Protocol No. 4 to the Convention; (iii) Article 3 of the Convention; and (iv) Article 13 in conjunction with Article 3 of the Convention and Article 4 of Protocol No. 4.

15 . On 3 August 2017 the Court (the duty judge) extended the interim measure until further notice. The Court also decided to communicate the application to the Government and to invite the Government to submit written observations by 22 September 2017.

B. Relevant domestic law and practice

16 . The procedure for granting refugee status and “tolerated stays” to aliens and for their expulsion is regulated by the Aliens Act of 13 June 2003, which grants protection to aliens within the territory of the Republic of Poland ( Ustaw a o udzielaniu cudzoziemcom ochrony n a terytorium Rzeczypospolitej Polskiej – hereinafter “the 2003 Act”).

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

18 . Pursuant to sections 24 and 29 of the 2003 Act the Border Guard is obliged to provide an alien who expresses a wish to apply for international protection in Poland with the possibility of lodging such an application and to facilitate it, inter alia , by ensuring the assistance of a translator and by allowing – at the alien ’ s request or with their consent – the representatives of international or non-governmental organisations assisting refugees access. A person who lodges an application for international protection is obliged to report to the reception centre indicate d by the border guards (section 30(1 )( 5i) 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 (section 34(1) of the 2003 Act).

19 . An alien can appeal against the decision of the head of the Aliens Office to the Refugee Board ( Rad a do Spraw Uchodźców ). He or she can appeal against a decision of the Refugee Board by lodging a complaint with the Warsaw Regional Administrative Court ( Wojewódzki Sąd Administracyjny w Warszawie ) and, as a last resort, a cassation appeal with the Supreme Administrative Court ( Naczelny Sąd Administracyjny ).

20 . 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 must be suspended. The complaint to the administrative court does not have automatic suspensive effect.

21 . When an alien present at a 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 a o cudzoziemcach – “the 2013 Act”).

22 . 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 has been denied entry into Poland can appeal against the 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

23 . Under Article 34 of the Convention (in conjunction with Rule 39 of the Rules of Court) the applicants allege that the Polish Government did not comply with the interim measure granted by the Court on 16 June 2017 and extended on 30 June and 19 July 2017.

24 . Under Article 4 of the Protocol No. 4 to the Convention the applicants allege that the Polish Border Guard did not review the applicants ’ situation individually, but denied them the possibility of lodging an application for international protection and issued the decision denying them and dozens of other foreigners entry at the same time. The applicants indicate that the reasons for them asking for entry into Poland written in the official notes of the border guards, which were not presented to them for signature, do not correspond to the statements they made during their interviews, which, in their opinion, proves that their case was not reviewed individually.

25 . Under Article 3 of the Convention the applicants allege that because the Polish authorities denied them the possibility of lodging an application for asylum, they were put at risk of being deported to Russi a and tortured in the Chechen Republic. They claim that Belarus cannot be considered a safe country, as they have already exceeded the maximum period of ninety days for legally residing there without a vis a and, if apprehended by the authorities, risk immediate deportation to Russia.

26 . Under Article 13 in conjunction with Article 3 of the Convention and Article 4 of the Protocol No. 4 to the Convention the applicants complain that an appeal against a decision denying someone entry is not an effective remedy as it is not examined quickly enough, has no suspensive effect (in their case, it would not prevent them being sent back to Belarus) and is not examined by an independent body (as the applicants allege the head of National Boarder Guard is a subordinate of the Ministry of Internal Affairs and implements Government policy).

QUESTIONS

1. Having regard to the procedural protection from torture and inhuman or degrading treatment, was the denial to review the applicants ’ motion for international protection in the present case by the domestic authorities in breach of Article 3 of the Convention? 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. In the light of the applicants ’ claims and the documents which have been submitted, would they face a risk of being subjected to treatment in breach of Article 3 of the Convention if returned to Russia?

3. Did the circumstances and manner of the treatment of the applicants by the Polish Border Guard amount to degrading or inhuman treatment in breach of Article 3 of the Convention? Reference is made to the applicants ’ statement that they have tried to lodge an application for international protection five times and that they were travelling with young children.

4. 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 at the border checkpoint in Terespol are taken without giving consideration to the individual situation of aliens requesting international protection.

5. 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 Board Guard denying the applicants ’ entry to Poland be considered an effective domestic remedy? Reference is made to the fact that it does not have suspensive effect.

6. 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?