Communicated on 14 June 2016

FOURTH SECTION

Applications nos 15845/15 and 56300/15 A . B . against Poland and T . K . and S . B . against Poland lodged on 4 November 2015 and 4 November 2015 respectively

STATEMENT OF FACTS

The applicant in the first case, Mr A.B. (“the first applicant”), is a Russian national who was born in 1972. The applicant in the second case, Ms T . K . (“the second applicant”), is a Russian national who was born in 1986. The first and second applicants are married to each other and have a son, S . B . , born on 5 February 2014 (“the third applicant”).

The applicants are represented before the Court by Mr J. Białas , a lawyer from the Helsinki Foundation for Human Rights.

A. The circumstances of the case

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

1. Background

The first applicant applied for refugee status in Poland in 2004 and 2011 but both sets of proceedings were discontinued. In 2004 the first applicant went to Austria, where he unsuccessfully applied for refugee status.

In January 2015 the three applicants on four occasions unsuccessfully tried to enter Poland. On each of those occasions they were not allowed by the border guards to lodge applications for refugee status. Instead, they were turned away.

2. Arrest and detention of the applicants

On 26 January 2015, in the Polish town of Terespol , situated on the Polish-Belarusian border, the applicants applied for refugee status in Poland. The first and the second applicant each received a temporary identification document allowing them to stay with their son on the territory of Poland during the refugee proceedings. On the same day all three applicants were arrested by border guards.

On 27 January 2015 the Biała Podlaska District Court delivered two separate decisions to detain the first and the second applicant together with their child at the guarded centre for aliens ( Strzeżony Ośrodek dla Cudzoziemców ) in Biała Podlaska (“the Guarded Centre for Aliens”) . The court held a hearing at which it heard the first and the second applicant in the presence of an interpreter. The court noted that the first applicant had already twice applied for refugee status in Poland and in January 2015 had attempted to enter Poland on four occasions, without applying for asylum. The court considered that this indicated his intention to abuse his refugee status.

On 30 January 2015 the first and second applicants lodged appeals against this decision.

On 18 February 2015 the Lublin Regional Court dismissed the appeal. The court held a hearing in the presence of a prosecutor. The applicants were not notified in advance of the hearing and they were not present.

On 19 March 2015 the Biała Podlaska District Court extended the detention measure against the applicants for a further 90 days. The applicants appealed. They submitted that their child had been hospitalised and that detention had had a negative influence on his state of health.

On 8 April 2015 the Lublin Regional Court held a hearing at which only the prosecutor was present. The applicants were by that time represented by a lawyer of their own choosing; however, neither the applicants nor their lawyer were notified of the hearing. The court dismissed their appeal.

On 15 May 2015 the first applicant applied for the release of all the applicants from detention, arguing that this was necessary for the well-being of his child. His application was dismissed on 9 June 2015 by the head of the border guards unit in Biała Podlaska ( Komendant Placówki Straży Granicznej ). His appeal against this decision was dismissed by the Biała Podlaska District Court on 30 June 2015.

The applicants ’ detention at the Guarded Centre for Aliens was further prolonged for 90 days on 22 June 2015 by the District Court. The first applicant lodged an appeal in which he submitted that he had not been notified of the application that had been lodged by the Border Guards with the District Court for the measure to be extended.

On 19 September 2015 the Biała Podlaska District Court again extended the detention of the applicants. The first applicant appealed against this extension, relying on a psychological report prepared a short time previously by the NGO International Humanitarian Action , which indicated the high probability that the first applicant had been subjected to torture in his country of origin.

On 12 October the head of the border guards unit in Biała Podlaska decided to release all three applicants from the Guarded Centre for Aliens. The reasoning of this decision cited the negative impact of the detention on the first applicant ’ s mental health.

On the same day the applicants were released. They remain in Poland.

3. Refugee status proceedings

On 6 February 2015 the applicants were heard in the proceedings concerning their application for refugee status.

On 3 March 2015 the head of the Office for Foreigners ( Urząd do spraw Cudzoziemców ) dismissed the applicants ’ application for refugee status.

On 18 May 2015 the Refugee Board confirmed the decision to refuse refugee status to the applicants.

On 11 December 2015 the head of the Office for Foreigners refused to grant international protection to the applicants. They lodged an appeal against this decision and proceedings are pending.

B. Relevant domestic law and practice

The procedure for granting 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 ).

Matters relating to the administrative detention of aliens, their placement in and release from guarded centres , and the living conditions in such facilities (including the admission of families with minor children and the provision of healthcare and education) are currently regulated b y 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.

Living conditions in guarded centres for aliens are furthermore regulated by the Minister of Internal Affairs Ordinance of 24 April 2015 on guarded centres and detention centres for aliens ( Rozporzą dzenie Ministra Spraw Wewnętrznych w sprawie strzeżonych ośrodków i aresztów dla cudzoziemców ).

Section 407 of the 2013 Act provides for a remedy under which an alien is entitled to seek compensation for his or her manifestly unjustified placement in a guarded centre for aliens.

COMPLAINTS

The applicants complain that their detention in the Guarded Centre for Aliens for the period of ten months was in brea ch of Articles 3, 5 § 1 (f) and 5 § 4 of the Convention. Firstly, the authorities failed to take into account the fragility of the first applicant ’ s mental health, given his traumatic experiences of torture in the country of origin. His mental state was never examined by the domestic authorities, in spite of his requests. The detention of their baby son was clearly not in the best interests of the child, who fell seriously ill while in detention.

Secondly, the applicants complain that their detention was arbitrary and illegal. They were not detained in order to prevent their entry into Poland or because they were to be deported, as they had entered Poland legally and – having applied for refugee status – had the right to remain. No extradition procedure had been instituted against them.

The applicants further argue that their rights were breached during the proceedings to detain them and to extend their detention. In particular, the reasoning for the applications lodged by the Border Guards for them to be detained and for that detention to be extended was not forwarded to them. Moreover, they were not notified of the hearings on the extension of the detention measure or of their appeals against the extensions (except for the first hearing of 27 January 2015, at which they were present).

Lastly, the second applicant complains that the facts of the case disclose a breach of Article 8 of the Convention in respect of herself and her son, the third applicant.

QUESTIONS TO THE PARTIES

In so far as the three applicants were placed from 26 January until 12 October 2015 in the Guarded Centre for Aliens in Biała Podlaska ,

1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

2. Have the applicants been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention? Reference is made to the allegations that the third applicant fell ill while in detention and the first applicant should not have been detained because of ( i ) his fragile mental state on account of his submission that he was allegedly tortured in his country of origin and (ii) the vulnerability inherent in his situation as an asylum-seeker (see M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 233, ECHR 2011).

3. Were the applicants deprived of their liberty, in breach of Article 5 § 1 of the Convention? In particular, did their deprivation of liberty fall under paragraph (f) of this provision? Reference is made to the allegation that the detention of the applicants in the Guarded Centre for Aliens in BiaÅ‚a Podlaska had been arbitrary and unlawful under the domestic law (see, for instance, Saadi v. the United Kingdom [GC ], no. 13229/03, §§ 64 ‑ 66, ECHR 2008).

4. Was the procedure by which the applicants sought to challenge the lawfulness of their detention in conformity with Article 5 § 4 of the Convention? In particular, was the principle of equality of arms between the applicants and the prosecution service respected in the present case ‑ reference is made to the applicants ’ absence at all hearings concerning the extension of their deprivation of liberty and the examination of their appeals against the extension decisions?

5. Has there been a violation of the applicants ’ right to respect for their private and family life, contrary to Article 8 of the Convention?