Published on 25 July 2022

FIRST SECTION

Application no. 37691/20 A.S. against Poland lodged on 28 August 2020 communicated on 6 July 2022

SUBJECT MATTER OF THE CASE

The applicant is a national of Tajikistan. He arrived in Poland in 2017. On 5 February 2018 the Mazowiecki Governor granted him a temporary residence permit until 14 January 2021. His wife, whom he had married in 2019, and his three children also reside in Poland. In 2017 the applicant’s wife was granted a subsidiary protection as a niece of a persecuted Tajik’s opposition politician.

On 4 May 2020 the Minister of the Interior and Administration (hereinafter “the Minister”) issued a decision ordering the applicant’s return to Tajikistan under section 329a of the Aliens Act of 12 December 2013 (hereinafter “the 2013 Act”). The decision was based on a classified request of the Head of the Internal Security Agency and briefly indicated that the applicant had been suspected of engaging in terrorism or espionage. The applicant lodged an appeal against that decision with the Warsaw Regional Administrative Court asking to have the execution of the decision stayed pending judicial review. In his reply, the Minister argued that a request to stay was not applicable to decisions issued under section 329a of the 2013 Act.

The applicant lodged a request to the Court under Rule 39 of the Rules of the Court to have his expulsion stayed. On 28 August 2020 the Court applied an interim measure and indicated to the Government that the applicant should not be removed pending proceedings before the Court.

On 3 September 2020 the Warsaw Regional Court refused to stay the execution of the expulsion decision. The applicant lodged an interlocutory appeal. On 19 January 2021 the Supreme Administrative Court quashed the first-instance court’s decision and stayed the execution of the decision. Subsequently, the Court lifted its interim measure. The proceedings concerning the appeal against the Minister’s decision ordering the applicant’s return are pending.

On 7 May 2020 the officers of the Border Guard arrested the applicant and filed a request with a court to have him placed in a detention centre for foreigners. On the same day, the Warsaw District Court decided to detain the applicant until 5 August 2020 with a view to his expulsion. The applicant lodged an interlocutory appeal against this decision and on 1 June 2020 the Warsaw Regional Court dismissed it. The court based its ruling on the Minister’s decision that the applicant should leave the country, which had been taken on the basis of the classified material. The court stipulated that it had not examined the grounds invoked by the Minister justifying the applicant’s expulsion.

The detention was subsequently prolonged; the applicant appealed against the prolongation and lodged requests to be released from the detention centre, but to no avail.

On 7 November 2020 the applicant was released.

The applicant complains that an implementation of the expulsion order to return him to Tajikistan would be in violation of Article 3 of the Convention. Relying on Article 3 in conjunction with Article 13, he also complains that the remedy against the decision ordering his expulsion had no automatic suspensive effect. The authorities, despite his request to stay the proceedings, were still preparing to execute his expulsion before the national authorities examined whether the decision was compatible with the Convention.

Invoking Article 5 § 4, he alleges that in the course of the proceedings concerning his detention and its prolongation he was not informed about the facts and evidence that constituted the grounds for this measure. Moreover, the courts based its decisions solely on the contents of the Minister’s decision and refused to examine the grounds for its issuance and, in consequence, to assess whether the applicant’s expulsion constituted a valid ground for his detention.

QUESTIONS TO THE PARTIES

1. Would the applicant face a risk of being subjected to treatment in breach of Article 3 of the Convention if the expulsion order were implemented (cf. F.G. v. Sweden [GC], no. 43611/11, §§110-127, 23 March 2016)?

2. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 3, as required by Article 13 of the Convention? In particular, did the available legal remedies have an automatic suspensive effect against expulsion (cf. Abdolkhani and Karimnia v. Turkey , no. 30471/08, §§107-117 22 September 2009 and Gebremedhin [Gaberamadhien] v. France , no. 25389/05, §§65-67, ECHR 2007 ‑ II)?

3. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his detention, as required by Article 5 § 4 of the Convention (cf. A. and Others v. the United Kingdom [GC], no. 3455/05, §§ 202-211, ECHR 2009 and Chahal v. the United Kingdom , 15 November 1996, §§ 124-133, Reports of Judgments and Decisions 1996 ‑ V)?