Published on 20 June 2022

FIRST SECTION

Applications nos. 52405/21 K.A. and 53402/21 and M.A. and Others against Poland lodged on 27 October 2021 and 3 November 2021 respectively communicated on 1 June 2022

SUBJECT MATTER OF THE CASE

The applicants are five Syrian nationals (one applicant in case no. 52405/21 and four applicants in case no. 53402/21) 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, including written requests filed by their representative. They submit that, instead, they were pushed back several times by the Polish authorities 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 or shelter and in harsh weather conditions including rain and sub-zero temperatures. The applicants further point out that they were pushed back notwithstanding their poor state of health (they were suffering from hypothermia) and injuries caused by the brutality of Belarusian officials. In case no. 53402/21 the applicants were allegedly taken from Hajnówka hospital and pushed back over the border, even though one of them could not walk unaided. In case no. 52405/21 the applicant was allowed to remain in hospital only because he had tested positive for COVID ‑ 19.

They further complain that the above-described circumstances led to violations 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 further submit that their rights under Article 3 were violated because, as a result of actions of the Polish authorities, they felt that they were under constant threat of a pushback to Belarus and deportation to their country of origin where they would be persecuted, and their lives would be at risk.

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 read in conjunction with Article 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 instituted and no decision was issued in relation to their pushbacks.

On 27 October 2021 (in case no. 52405/21) and 3 November 2021 (in case no. 53402/21) 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 25 November and 1 December 2021 respectively.

Following the information received from the Government that the applicants had left the temporary accommodation in which they had been placed and that their whereabouts were unknown, on 25 November 2021 the Court (the duty judge) decided to lift the interim measures indicated on 27 October and 3 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 between 15 and 23 October 2021 (no. 52405/21) and 15 October and 6 November 2021 (no. 53402/21) amount to a violation of Articles 2 and/or 3 of the Convention? In particular, reference is made to events in Hajnówka hospital on 23 and 24 October 2021 and to the fact that the applicants were forced to wander in forests in harsh weather conditions without food, water or 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 to review the applicants’ applications for international protection by the domestic authorities 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 risk of being subjected to treatment in breach of Article 3 of the Convention if returned to Belarus or Syria?

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 in the period between 15 and 23 October 2021 (no. 52405/21) and 15 October and 6 November 2021 (no. 53402/21) 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 Article 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.

APPENDIX

List of cases

No.

Application no.

Case name

Lodged on

Applicant Date of Birth Nationality

Represented by

1.

52405/21

K.A. v. Poland

27/10/2021

Kefah AL HASAN Syrian

Patrick RADZIMIERSKI

2.

53402/21

M.A. and Others v. Poland

03/11/2021

Mohammad Saeed AL ZOABI 01/01/1998 Syrian

Ameer ALABO 09/02/1983 Syrian

Mohamadalmehdi ALMOHAMAD 01/05/2002 Syrian

Abdulhalim AL ZOUBI 16/05/1984 Syrian

Patrick RADZIMIERSKI