Communicated on 28 September 2015

FOURTH SECTION

Application no. 75157/14 Zita BISTIEVA against Poland lodged on 26 November 2014

STATEMENT OF FACTS

The applicant, Ms Zita Bistieva , is a Russian national of Chechen ethnic origin , who was born in 1976 and currently lives at the centre for aliens in Hamm, Germany . She is 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 applicant, may be summarised as follows.

In 2012 the applicant ’ s husband, M.A., and their two minor children (born in 2006 and 2008 respectively) arrived in Poland. M.A. applied for asylum for him and his family. On 6 March 2013 the Head of the Aliens Office ( Szef Urzędu do Spraw Cudzoziemców ) decided not to grant refugee status sought ( decision no. PU-420-37001/SU/2012 ; upheld by the Refugees Council on 10 May 2013, no. RdU-133-1/S/13 ) . Soon afterwards the family fled to Germany. The applicant ’ s third child, R.B., was born there in July 2013.

On 9 January 2014 the applicant and her three children were transferred back to Poland under the EU Dublin II Regulation.

On 9 January 2014 the S łubice District Court ( Sąd Rejonowy ) decided that the applicant and her three children be committed until 8 April 2014 at the Guarded Centre for Aliens ( Strzeżony Ośrodek dla Cudzoziemców ) in Kętrz yn , which is one of the two facilities of this kind suitable for accommodation of children. It was held that the applicant and her family should be detained pending their expulsion ordered by the Head of the Aliens Office ( Szef Urzędu do Spraw Cudzoziemców ) on 6 March 2013 and in view of the risk that they might again flee the country. The applicant appealed, arguing that the administrative detention of her and her children was unjustified and disregarded the fact that her husband had stayed behind in Germany, being hospitalised when his family was transferred to Poland.

On 27 January 2014 the Warmińsko-Mazurski Governor ( Wojewoda ) refused to order expulsion of the applicant ’ s youngest child, which was sought by the Chief of the Świecko Border Guard ( Komendant Placówki Straży Granicznej ). It was held that the 2013 expulsion decision did not cover R.B. who was born later in Germany and whose presence in Poland resulted from a decision of the German authorities. It followed that the child ’ s stay in Poland, unlike that of the rest of his family, was not illegal.

On 28 January 2014 the applicant applied for refugee status for her and her three children. She also applied that the enforcement of the 2013 expulsion decision be stayed.

On 4 February 2014 the Kętrzyn District Court decided to extend the detention of the applicant and her three children at the Guarded Centre for Aliens until 27 April 2014. T he domestic court relied on the fact that the 2013 expulsion decision was enforceable despite the applicant ’ s renewed asylum application and that the identification of the family members was being carried out by the Polish authorities .

On 5 February 2014 the Gorzów Wlkp . Regional Court ( Sąd Okręgowy ) upheld the decision of 9 January 2014. It was held that the decision to place the applicant in administrative detention was justified because the applicant was an illegal alien in Poland and she had illegally crossed the German border. Having minor children cannot be considered as a sufficient reason to quash the impugned decision. The Guarded Centre for Aliens in Kętrzyn provides adequate living conditions and medical care to the family. Any inconveniences suffered by the applicant ’ s family are not the result of their placement at the guarded centre but rather, the applicant ’ s illegal immigration to Poland.

On 19 February 2014 the Head of the Aliens Office decided not to grant the application to stay the enforcement of the 2013 expulsion decision. It was noted that the decision covered the applicant and her three children. The authority considered that the applicant ’ s new application for asylum was likely to fail as it was based on similar grounds as the one rejected in 2013. On 11 March 2014 the Head of the Aliens Office issued corrigendum to this decision and removed the applicant ’ s youngest child from its scope.

It appears that on 20 February 2014 the applicant ’ s husband was transferred to Poland and placed in the same guarded centre as the applicant and the children.

On 18 April 2014 the Head of the Aliens Office discontinued the applicant ’ s asylum proceedings (decision no. DPU-420-214/SU/2014) in view of the enforceable 2013 decision. This decision was served on the applicant on 23 April 2014. The applicant did not appeal.

On 25 April 2014 the Kętrzyn District Court decided to extend the administrative detention of the a pplicant and her three children in light of the discontinuation of the latest asylum proceedings. The applicant appealed, arguing that her youngest child was not an illegal alien and, as such, he could not have been subject of administrative detention. The applicant also argued that her own and her other children ’ s placement in the guarded centre was unjustified.

On 22 May 2014 the applicant lodged a new application for asylum, also asking that the enforcement of the 2013 expulsion decision be put on hold. The applicant argued that her application was justified because on 27 January 2014 t he Warmińsko-Mazurski Governor refused to order expulsion of her youngest child and because, in separate proceedings, o n 25 April 2014 the Refugees Council ( Rada do Spraw Uchodźców ) granted refugee status to the applicant ’ s father, mother and siblings .

On 5 June 2014 the Head of the Aliens Office decided to suspend the enforcement of the 2013 expulsion decision on the ground that new circumstances had occurred in the applicant ’ s case.

On 6 June 2014 the Olsztyn Regional Court upheld the decision extending the applicant ’ s administrative detention of 25 April 2014. It was observed that the decision to extend the measure of administrative detention was justified by the need to secure the course of the proceedings concerning the refusal of refugee status and expulsion. It was observed that the last relevant decision was delivered by the Head of the Aliens Office on 18 April 2014 and served on the applicant within the statutory time-limit. It followed that the applicant ’ s detention was in accordance with the law. The domestic court held that Section 107 of the 2003 Aliens Act was not breached by the fact that the applicant ’ s youngest son was detained along with the applicant and the rest of the family even though his own expulsion had not been authorised by the Governor . It sufficed that the applicant herself was covered by the 2013 expulsion decision and the child was in her care. Separating the applicant from any of her children would be contrary to their best interest. Lastly, it was considered that the possible alternative measure, that is, placing the applicant and her children to the Centre for Aliens in Podkowa Le śna and providing them with social care, was not called for in the circumstances of the case.

On 12 June 2014 the applicant applied to be released from administrative detention. Her application was granted on 29 June 2014. The copy of the latter decision has not been submitted.

After the release from the guarded centre the family started living in Warsaw.

On an unspecified date in August 2014 they fled to Germany. As submitted by their lawyer, the family is currently living at the centre for aliens with pending asylum applications in Hamm.

The applicant did not bring an action for compensation for unjustified detention in a guarded centre under Section 407 of the Aliens Act of 12 December 2013.

B. Relevant domestic law and practice

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 ). 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 administrative detention of aliens, their placement in and release from guarded centres , the living conditions in such facilities, including admission of families with minor children and provision of healthcare and education are currently 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 § 1(2) and § 2(1); 401; 403; 406; 407; 414 § 3; 416 § 1(2) and § 2; 417 and 426 of the 2013 Act.

The 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 .

It appears that the first action brought under this provision by an Iranian woman awaiting decision on her refugee status is currently pending (decision on applicability issued on 4 June 2014 by the Lublin Court of Appeals; no. II AKz 277/14).

COMPLAINTS

1. The applicant complains that her and her children ’ s administrative detention was in breach of Article 5 § 1 (f) of the Convention.

Firstly, from 5 until 29 June 2014 the detention of the applicant and her two older children was no longer with a view to deportation because the enforcement of the 2013 expulsion decision had been suspended.

Secondly, the detention of the applicant ’ s youngest son was never in view to deportation as no expulsion decision had been issued in his regard.

Thirdly, without any ground to detain the applicant ’ s youngest child, the Polish authorities should have ensured the unity of the family by refraining from detaining the child ’ s mother and siblings.

Fourthly, the detention of the applicant ’ s minor children was ordered with the disregard of their best interest.

2. The applicant also complains under Article 5 § 4 of the Convention that under the Polish law a stay of the enforcement of an expulsion decision does not result in an automatic release of an alien concerned from administrative detention. She also complains that her youngest child was deprived of judicial review of his detention because his situation was linked with his mother ’ s immigration status.

3. Lastly, t he applicant complains under Article 8 of the Convention that her and her children ’ s placement in administrative detention was not a necessary measure in relation to the aim pursued, constitut ing a disp roportionate interference with her right to respect for her private and family life.

QUESTIONS TO THE PARTIES

In so far as the applicant and her three minor children were committed from 9 January to 29 June 2014 to the Guarded Centre for Aliens in K Ä™ trzyn ,

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

2. Was the deprivation of liberty of the applicant and her three children in compliance with Article 5 § 1 (f)?

3. Did the applicant and her children have at their disposal an effective procedure by which they could challenge the lawfulness of their detention, as required by Article 5 § 4 of the Convention?

4. H as there been a violation of the appl icant ’ s right to respect for her private and family life , contrary to Article 8 of the Convention?