Published on 24 April 2023

FIRST SECTION

Application no. 40464/22 M.S.T. and Others against Poland lodged on 10 August 2022 communicated on 5 April 2023

SUBJECT MATTER OF THE CASE

The application concerns the detention of the applicants, two adults and their minor child (see appended table for details), in a Guarded Centre for Aliens in Kętrzyn, pending their deportation.

On 22 February 2022 the applicants were detained, following their transfer to Poland from Germany pursuant to the Dublin III Regulation. Orders to leave Poland have been issued in respect of all three applicants.

The applicants agreed to their deportation to Thailand, but not to separate countries as per their nationality.

On 11 and 12 April 2022 the Jelenia Góra Regional Court dismissed the applicants’ appeals against the detention decisions on the grounds that they posed a risk of absconding.

On 16 May 2022 the Kętrzyn District Court extended the applicants’ detention until 20 August 2022. On 8 July 2022 the Olsztyn Regional Court dismissed the third applicant’s appeal on the extension of his detention.

On 3 June 2022 the Head of the Border Guard dismissed the first applicant’s application for her and her child’s release. Based on the memo from the in-house psychologist dated 26 May 2022 (see below) and a medical report dated 1 June 2022, it was concluded that continued detention negatively affected the applicants, but not to a degree that would require their release. It was also held that, because the first applicant had illegally moved around Europe, and that she had declared that she was not threatened in her country of origin, to which she actually wanted to return, her and her son’s detention fell under exceptions allowed by Articles 5 and 8 of the Convention.

On 6 July 2022 the Kętrzyn District Court upheld that decision on appeal.

On 16 August 2022 the Olsztyn Regional Court lifted the first and the second applicants’ detention. The measure in respect of the third applicant was lifted on the same day by the Head of the Border Guard.

On 5 April 2022 the applicants lodged with the Polish authorities their third asylum application (the previous two having been examined and rejected between 2018 and 2021). The applicants submitted that the second applicant had a heart defect and suffered from respiratory problems. Moreover, he and the first applicant suffered from psychological problems. These proceedings are currently on-going.

On 16 August 2022 the applicants were released from detention.

They are currently living in the open centre for aliens in Linin.

The applicants complain that their prolonged detention violated Article 3 of the Convention owing to the nature of detention as such, as well as to the prison-like conditions of the Guarded Centre in Kętrzyn and the lack of proper psychological and medical care for their mental and physical conditions.

They also complain under Article 5 § 1 (f) of the Convention that the public authorities had detained them without giving any consideration to alternative measures or to the best interest of the child, and that their protracted detention pending deportation had become arbitrary and disproportionate. Moreover, under Article 5 § 4 of the Convention, they complain about the lack of legal representation during proceedings concerning their detention; communication in a language they do not understand and delayed service of translations; their absence at the hearings concerning their detention; the courts’ refusal to obtain certain reports; and delays in examining their appeals.

Lastly, the applicants complain under Article 8 of the Convention that, because of the nature of the measure and the conditions in the guarded centre, their detention in Kętrzyn violated their right to respect for family life in that the authorities did not give any consideration to the interests of the child.

QUESTIONS TO THE PARTIES

1. Was the applicants’ deprivation of liberty, from 22 February 2022 until 16 August 2022, at the Guarded Centre for Aliens in Kętrzyn, pending deportation in compliance with Article 5 § 1 (f) (see, mutatis mutandis , Nikoghosyan and Others v. Poland , no. 14743/17, §§ 61-89, 3 March 2022; Bilalova and Others v. Poland , no. 23685/14, §§ 68-82, 26 March 2020; and R.M. and Others v. France , no. 33201/11, §§ 79-88, 12 July 2016)?

2. Did the applicants have at their disposal an effective procedure by which they could challenge the lawfulness of their detention pending deportation, as required by Article 5 § 4 of the Convention?

3. Were the applicants subjected to treatment contrary to Article 3 of the Convention by being kept in the Guarded Centre for Aliens in Kętrzyn (see A.B. and Others v. France , no. 11593/12, §§ 110-15, 12 July 2016, and R.M. and Others v. France , cited above, §§ 68-76)?

4. Did the detention violate the applicants’ right to respect for their private and family life, contrary to Article 8 of the Convention (see Bistieva and Others v. Poland , no. 75157/14, §§ 69-88, 10 April 2018)?

APPENDIX

No.

Applicant’s Name

Year of birth

Nationality

Place of residence

1.M. S. T.

1991Thai

Linin

2.A. D.

2019Guinean

Linin

3.M. D.

1986Guinean

Linin