Published on 28 August 2023

FIRST SECTION

Application no. 22399/22 M.H.D. and Others against Poland lodged on 28 April 2022 communicated on 10 July 2023

SUBJECT MATTER OF THE CASE

The present application concerns the migration crisis on the Polish ‑ Belarusian border. It was lodged by four applicants, all Iraqi nationals, a married couple with two minor children.

In October 2021 the applicants entered Poland in an irregular manner. After the Polish Border Guard officers encountered them, they were committed to a guarded centre for foreigners (first in Lesznowola and, subsequently, in Kętrzyn) where they spent at least six months. On an unspecified date, but before August 2022, the applicants left Poland and went to Germany.

They complain under Article 3 about the conditions of their detention in both detention centres, insufficient space in the rooms, limited time that they could spend outside and that the applicants H.R.M.T. and M.H.D., who were victims of violence, were not provided with adequate psychological and medical care. They also complain under Articles 3 and, in substance, Article 8 that when admitted to detention facilities in Kętrzyn and in Lesznowola, they were subjected to personal checks and that they had to strip naked which was particularly humiliating and infringed their dignity.

They further complain under Article 8 that the centre was not adjusted to the needs of minor applicants – they indicate that a prolonged stay in the centre was unnecessary and harmful for the psychological development of the children who did not receive adequate medical treatment.

Lastly, they complain, invoking Article 5 § 1 (f) and 5 § 4 of the Convention, that the decisions ordering their detention lacked legal and factual grounds, the review of their appeals against their detention orders was limited in scope and the respective procedure lacked the necessary guaranties.

QUESTIONS TO THE PARTIES

1. Did the conditions of the applicants’ detention in the Lesznowola and Kętrzyn Guarded Centres for Foreigners amount to treatment contrary to Article 3 (see: M.S.S. v. Belgium and Greece , §§ 216-222; Abdi Mahamud v. Malta , no. 56796/13, § 78-90, 3 May 2016)? In particular, were the applicants diagnosed as victims of violence inflicted by the Belarusian Border Guards, and if so, were they appropriately treated?

2. When admitted to detention facilities in Kętrzyn and in Lesznowola, were the applicants subjected to personal checks? If so, did those checks amount to inhuman and/or degrading treatment in violation of Article 3 of the Convention?

In that regard, has there been an interference with the applicants’ right to respect for their private life, within the meaning of Article 8 § 1 of the Convention?

If so, was that interference justified in terms of Article 8 § 2 of the Convention?

3. Were the applicants deprived of their liberty in breach of Article 5 § 1 (f) of the Convention? In particular, was their detention in the guarded centres for foreigners lawful in terms of the domestic law and free from arbitrariness, as required by Article 5 § 1 (f) (see: Saadi v. the United Kingdom [GC], no. 13229/03, § 74, ECHR 2008)?

4. As regards the applicants’ complaints concerning conditions of their detention in guarded centres for foreigners, have they exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

5. Was the procedure whereby the applicants sought to challenge the lawfulness of their detention, including its extension, in conformity with Article 5 § 4 of the Convention? In particular, was the principle of equality of arms between the applicant and Border Guard respected and were the decisions dismissing the applicants’ appeals sufficiently reasoned (see: G.B. and Others v. Turkey , no. 4633/15, § 176, 17 October 2019)? Reference is also made to the fact that the applicants were not brought to hearings at which their appeals against detention and its extension were examined.

6. Was the applicants’ detention in breach of their right to respect for their private and/or family life, guaranteed by Article 8 of the Convention (see, Bistieva and Others v. Poland , no. 75157/14, §§ 72-88, 10 April 2018)?

APPENDIX

No.

Applicant’s Name

Year of birth/registration

Nationality

1.M.H.D.

1983Iraqi

2.N.H.

2016Iraqi

3.N.M.H.

2013Iraqi

4.H.R.M.T.

1983Iraqi