Published on 11 July 2022

FIRST SECTION

Application no. 54862/21 F.A. and S.H. against Poland lodged on 15 November 2021 communicated on 20 June 2022

SUBJECT MATTER OF THE CASE

The applicants, a married couple, are Afghan nationals who arrived in Belarus in October 2021 and tried to cross the Polish-Belarusian border several times in an irregular manner.

They complain that the Polish authorities ignored their requests for international protection and that, instead, they pushed them back several times to the Belarusian side of the border. As the Belarusian authorities forced them back towards the Polish side, the applicants were stranded in the border forest area without food, water and shelter and in harsh weather conditions including frequent rains and low temperatures.

They further complain that the above-described circumstances led to a violation of Articles 2 and 3 of the Convention as the Polish authorities failed to undertake necessary measures to protect their lives and contributed to a situation which put their lives and health at risk due to prolonged exposure to harsh weather conditions, violence inflicted by the Belarusian officials and lack of proper medical assistance.

They also rely upon Article 4 of Protocol No. 4 to the Convention, alleging that they were collectively expelled without individual review of their situation and notwithstanding the fact that they had no access to regular border crossings.

Lastly, under Article 13 in conjunction with Articles 2 and 3 of the Convention and Article 4 of Protocol No. 4 to the Convention, the applicants complain in substance that they did not have access to any remedy, as no proceedings were instigated, and no decision was issued in relation to their pushbacks.

On 15 November 2021 the Court (the duty judge) granted the applicants’ requests lodged under Rule 39 of the Rules of Court and indicated to the Polish Government that the applicants should not be removed from Poland until 13 December 2021. Subsequently, the interim measure was extended until further notice.

Following the information received from the Government and the applicants’ lawyer that the applicants had left the reception centre where they had been placed and that they were residing in Germany, on 17 March 2022 the Court (the duty judge) decided to lift the interim measure previously indicated on 15 November 2021.

QUESTIONS TO THE PARTIES

1. Having regard to the positive obligations of a Contracting State to take appropriate steps to safeguard the lives of those within its jurisdiction and to ensure that they are not subjected to torture or inhuman or degrading treatment, did the situation which the applicants faced on the Polish ‑ Belarusian border amount to a violation of Articles 2 and 3 of the Convention? In particular, reference is made to the fact that the applicants were forced to wander in forests in harsh weather conditions without food, water and shelter and without access to proper medical assistance (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, §§ 130-31 and §§ 143-44; X and Others v. Bulgaria [GC], no. 22457/16, §§ 181-83, 2 February 2021; and mutatis mutandis M.S.S. v. Belgium and Greece [GC], no. 30696/09, §§ 249 ‑ 64, ECHR 2011 )?

2. Having regard to procedural protection from torture and inhuman or degrading treatment, was the refusal of the domestic authorities to review the applicants’ applications for international protection 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 (see M.K. and Others v. Poland , nos. 40503/17 and 2 others, 23 July 2020)?

3. In the light of the applicants’ claims and the documents which have been submitted, would they face a real risk of being subjected to treatment in breach of Article 3 of the Convention if returned to Belarus or Afghanistan?

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 before 15 November 2021 they were expelled from Polish territory without any formal decision in that regard and without consideration of their individual situation as aliens requesting international protection (see M.K. and Others v. Poland , cited above).

5. Did the applicants have at their disposal an effective domestic remedy for their complaints under Articles 2 and 3 of the Convention and Article 4 of Protocol No. 4, as required by Article 13 of the Convention? Reference is made to the fact that the applicants were expelled from Polish territory without any formal decision in that regard.