Published on 24 April 2023

FIRST SECTION

Application no. 15318/22 A.S. against Poland lodged on 25 March 2022 communicated on 5 April 2023

SUBJECT MATTER OF THE CASE

The case concerns the migration crisis on Polish-Belarusian border.

The applicant is a Syrian national who tried to enter Poland several times in an irregular manner. He complains under Article 3 alone and in conjunction with Article 13 of the Convention that the Polish authorities ignored his requests for international protection and that, instead, they pushed him back to Belarus, which cannot be considered a safe country for an asylum seeker. In this respect he also relies on Article 4 of Protocol No. 4 alone and in conjunction with Article 13, maintaining that he was expelled from Polish territory without any formal decision or any decision against which he could effectively appeal.

He also complains that living conditions in the forest border area fell short of requirements of Article 3.

He further complains under Article 5 § 1 of the Convention that he was deprived of his liberty, because he could not leave the border area as Polish officials pushed him back to Belarus. With reference to this allegation, he complains under Article 5 §§ 2 and 4 that he was not informed about the reasons for his deprivation of liberty and that he could not appeal against it.

QUESTIONS TO THE PARTIES

1. Did the facts of which the applicant complains fall within the jurisdiction of Poland?

2. If so, 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 inhuman or degrading treatment, did the applicant’s situation 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 applicant allegedly found himself wandering 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)?

3. Was the refusal of the domestic authorities to review the applicant’s applications for international protection in breach of Article 3 of the Convention? In particular, before deciding on his return, did the Polish authorities consider his claim that he 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, §§ 178 ‑ 182 and 185, 23 July 2020)?

4. In the light of the applicant’s allegations and the documents which have been submitted, would he face a real risk of being subjected to treatment in breach of Article 3 of the Convention if returned to Belarus or Syria?

5. Was the applicant, an alien 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 applicant’s allegation that he was expelled from Polish territory without any formal decision or any decision against which he could effectively appeal and without consideration of his individual situation as alien requesting international protection (see M.K. and Others v. Poland , cited above §§ 197-209).

6. Did the applicant have at his disposal an effective domestic remedy for his 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 applicant’s allegations that he was expelled from the Polish territory without any formal decision or, in cases where decisions were issued, they were based on article 303b of the Aliens Act of 2013 and were immediately enforceable (see M.K. and Others v. Poland , cited above §§ 147 and 219-220).

7. Taking into account the applicant’s allegations that Belarus was not a safe country for him as an asylum seeker and considering that Polish officials did not allow him into Polish territory, was he deprived of his liberty in breach of Article 5 § 1 of the Convention? If so, did his deprivation of liberty fall within paragraph (f) of this provision (see: Ilias and Ahmed v. Hungary [GC], no. 47287/15, § 231-248, 21 November 2019, mutatis mutandis Z.A. and Others v. Russia [GC], nos. 61411/15 and 3 others, § 138-163, 21 November 2019; Amuur v. France , 25 June 1996, § 45-49, Reports of Judgments and Decisions 1996-III)?

8. Was the applicant’s deprivation of liberty “in accordance with a procedure prescribed by law”?

9. Was the applicant informed promptly, in a language which he understood, of the reasons for his deprivation of liberty, as required by Article 5 § 2 of the Convention?

10. Did the applicant have at his disposal an effective procedure whereby he could challenge the lawfulness of his deprivation of liberty, as required by Article 5 § 4 of the Convention?