Communicated on 2 June 2017

FIRST SECTION

Application no. 14743/17 Artur NIKOGHOSYAN against Poland lodged on 15 February 2017

STATEMENT OF FACTS

1. The first applicant, Mr Artur Nikoghosyan , was born in 1967. The second applicant is his wife, Ms. Varditer Hovhannisyan , who was born in 1979. The third, fourth and fifth applicants are their children, Namikov Nikoghosyan , Elen Nikoghosyan and Maria Nikoghosyan , who were born in 2002, 2003 and 2015, respectively. All applicants are Armenian nationals. They are currently detained in the Biała Podlaska Guarded Centre for Aliens.

A. The circumstances of the case

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

3. The first applicant submitted that on a number of occasions in late- 2016, Polish border guards at the border crossing in Medyka impeded his family and he from crossing the border and from filing their applications for asylum, which they adamantly wished to lodge. The guards then summarily turned the family away to Ukraine.

4. It appears that on 25, 28 and 31 October 2016, and on 1 November 2016 and, twice, on 3 November 2016, administrative decisions were issued to the effect of turning the applicants away from the Polish border on the ground that the family had not had any documents authorising their entry onto the Polish territory and, presumably because the applicants ’ had stated that they were not in any risk of persecution in their home country but were emigrating for economic reasons. Copies of these decisions have not been submitted to the Court.

5. On 6 November 2016 the first applicant lodged an asylum application on behalf of himself and his family with the border guards in Medyka . The applicants submitted that if returned, the family and he would be at risk of persecution in their home country because of his participation in an opposition movement. A copy of this decision has not been submitted to the Court. It appears that these proceedings are pending before the first-instance authority.

6 . On 7 November 2016 the Przemyśl District Court ( Sąd Rejonowy ) ordered the applicants ’ committal for 60 days to the guarded centre for aliens ( Strzeżony Ośrodek dla Cudzoziemców ) in Biała Podlaska . A copy of the reasoning of this decision had not been submitted to the Court.

7. On 25 November 2016 the first applicant appealed against that decision, arguing that his multiple attempts to enter the Polish territory without proper documents resulted from miscommunication between him and the border guards.

8. It appears that on 9 December 2016 the first and the second applicant had an asylum interview.

9. On 19 December 2016 the Przemyśl Regional Court ( Sąd Okręgowy ) upheld the decision of 7 November 2006. The regional court considered that the first applicant ’ s presence in Poland could not be ensured by any of the statutory means alternative to detention, such as a regular reporting to the authorities, a deposit in the amount equal to the double monthly minimum salary (that is, 3,700 Polish zlotys; approximately 874 euros (EUR)), or his residence at an indicated address. More specifically, it was observed that the family had only EUR 50, they did not have any address in Poland and that it would therefore be impossible assign them to a particular region ’ s asylum authority. Moreover, the applicants ’ previous attempts to enter Poland without proper documents and solely for economic reasons triggered the statutory presumption that they were highly likely to abscond (see, section 87 paragraph 2 of the 2013 Act; paragraph 18 below).

10. On 27 December 2016 the first and the second applicant applied for release from the guarded centre for aliens on the ground that during their interviews earlier in December, they had not been informed that any other evidence was going to be sought by the authorities. The adult applicants ’ presence at the guarded centre was therefore not necessary for the continuation of their family ’ s asylum proceedings.

11. On 5 January 2017 the Biała Podlaska District Court extended the administrative detention of the first applica nt and his children until 6 May 2017. The domestic court observed that it was necessary to obtain evidence allowing for completion of the applicants ’ asylum proceedings. It followed that the applicants ’ presence in Poland had to be ensured by means of their detention because, in the light of equivocal information submitted by the first applicant, it was highly probable that the applicants were intending to flee Poland. The text of the decision contains two feminine gender references to the first applicant.

12. On 5 January 2017 the same district court issued a similar decision in respect of the second applicant, who, throughout the entire decision, is referred to, twice in feminine and, five times in masculine gender or as “the son of”. The domestic court observed that it was highly likely that the applicant would flee Poland because of “the facts of his [original writing] behaviour” and “multiple attempts to cross the Polish border without [proper] documents during [asylum] proceedings”.

13. On 11 January 2017 the head of the Biała Podlaska Border Guard ( Komendant Placówki Straży Granicznej ) issued two decisions, refusing to grant the first and the second applicant ’ s release from the guarded centre for aliens. The authority essentially reiterated reasons which had been relied on by the domestic courts in the decisions described above.

14. It appears that on 12 January 2017 the first and the second applicant appealed to the regional court against their re spective decisions of 5 January 2017. They argued that the decisions to order and to uphold their administrative detention were schematic and arbitrary. More specifically, they submitted that when they had previously attempted to cross the border between Ukraine and Poland, Polish border guards refused to communicate with them and, ultimately, to allow them to file an asylum application, turning them away in a summary fashion. The applicants also maintained that they had never stated that their pursued immigration to Poland was for economic reasons. They also argued extensively that the authorities, who had ordered their detention, had disregarded the best interests of their minor children. In particular, they had not viewed detention as the measure of ultimate resort and overlooked the fact that the guarded centre for aliens in Bia ł a Podlaska was not adapted for children ’ s needs.

15. It is unknown whether the applicants have also lodged an appeal with a district court against the border guard ’s decisions of 11 January 2017.

B. Relevant domestic law

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

17. Matters related to the administrative detention of aliens are regulated by the 2003 Act in so far as they have not been repealed by the Aliens Act of 12 December 2013 ( Ustawa o cudzoziemcach – “the 2013 Act”), which entered into force on 1 May 2014.

18. Paragraph 1 of section 87 of the 2003 Act enumerates grounds for the detention of an asylum seeker. Under point 2 of this provision, such detention may be ordered for the purpose of gathering, with the participation of the asylum seeker, of information which is at the basis of the application for international protection and which could not be obtained without the detention of the asylum seeker – if a significant probability of absconding existed.

19. Paragraph 2 point 2 of section 87 of the 2003 Act sets out the presumption of fact that, in respect of persons seeking international protection, the probability of their absconding exists if such persons have crossed or attempted to cross the border illegally, unless they have arrived directly from the territory in which they were in danger of persecution or of serious harm and if they have presented credible reasons for their illegal entry into Poland and have applied for international protection as soon as they crossed the border.

COMPLAINTS

The applicants complain that their administrative detention is in breach of Article 5 of the Convention.

They also complain, invoking Article 6 of the Convention, that the domestic courts, deciding on the family ’ s committal to the guarded centre for aliens did not hear the applicants in order to assess the veracity of the statements of the border guards on the issue of the applicants ’ multiple attempts to enter the Polish territory for economic reasons.

Lastly, the applicants invoke Protocol No. 4, without indicating any particular provision, to complain that their administrative detention is without any legal basis.

QUESTIONS TO THE PARTIES

1. Is the deprivation of liberty of the first and the second applicant, and/or that of their minor children in compliance with Article 5 § 1 (f)?

2. Did the applicants have at their disposal an effective procedure by which they could challenge the lawfulness of their de tention, as required by Article 5 § 4 of the Convention?