Published on 24 April 2023

FIRST SECTION

Application no. 51241/22 M.A. against Poland and 3 other applications (see list appended) communicated on 5 April 2023

SUBJECT MATTER OF THE CASES

The present cases concern the immigration crisis on the Polish-Belarusian border.

All the applicants are foreigners who tried to enter Poland a number of times in an irregular manner. They complain under Article 3 alone and in conjunction with Article 13 of the Convention that the Polish authorities ignored their requests for international protection and that, instead, they pushed them back 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.

In this respect they also complain under Article 5 § 1 of the Convention that they were deprived of their liberty because the officials of both Poland and Belarus did not allow them to leave the border area. With reference to this allegation, they also complain under Article 5 §§ 2 and 4 that they were not informed about the reasons for their deprivation of liberty and that they could not appeal against it.

They further allege violation of Article 4 of Protocol No. 4 alone and in conjunction with Article 13 in that they were expelled from Polish territory without any formal decision or any decision against which they could effectively appeal.

The applicants in cases A.H.A v. Poland (no. 51284/22) and N.M.A. v. Poland (no. 51285/22) complain additionally under Article 3 of the Convention that the Polish Border Guards treated them in a brutal and violent manner.

On various dates the applicants were committed to guarded centres for foreigners. They complain invoking Article 5 §§ 1 (f) and 4 of the Convention that decisions ordering their detention lacked legal and factual grounds and that the review of their appeals against the detention orders was limited in scope and the relevant procedure lacked necessary guaranties.

They further complain, relying on Article 3 of the Convention, about harsh conditions of their detention.

Summary of details of the applicant’s situation, as provided by them, is included in an annex.

QUESTIONS TO THE PARTIES

QUESTIONS CONCERNING ALL APPLICATIONS :

1. Did the facts related to situation on the Polish-Belarusian border of which the applicants complain 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 applicants’ 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 applicants allegedly found themselves 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 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, §§ 178 ‑ 182 and 185, 23 July 2020)?

4. In the light of the applicants’ allegations 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 their respective countries of origin?

5. 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 they were expelled from Polish territory without any formal decision or any decision against which they could effectively appeal and without consideration of their individual situation as aliens requesting international protection (see M.K. and Others v. Poland , cited above §§ 197-209).

6. 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 applicants’ allegations that they were expelled from 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 . Were the applicants deprived of their liberty in breach of Article 5 § 1 of the Convention, considering that officials of both Poland and Belarus allegedly did not allow them to leave the border area? If so, did their deprivation of liberty fall within paragraph (f) of this provision (see: 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 applicants’ alleged deprivation of liberty referred to above “in accordance with a procedure prescribed by law”?

9. Were the applicants informed promptly, in a language which they understood, of the reasons for their deprivation of liberty, as required by Article 5 § 2 of the Convention?

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

ADDITIONAL QUESTION IN:

A.H.A v. Poland (no. 51284/22)

N.M.A. v. Poland (no. 51285/22)

11. Did the officers of the Polish Border Guards or other Polish forces present on the border subject the applicants in cases A.H.A v. Poland (no. 51284/22) and N.M.A. v. Poland (no. 51285/22) to treatment contrary to Article 3 of the Convention when they allegedly pushed them back to Belarus?

12. 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 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)? Reference is made in particular to the fact that the applicant in case N.M.A v. Poland (no. 51285/22) is a person with disability.

13. 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 Guards respected in the present cases? 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 in cases M.A. v. Poland (no. 51241/22) and G.K. v. Poland (no. 51248/22) were not brought to hearings at which their appeals against the detention orders were examined.

14. Have the applicants exhausted all effective domestic remedies related to their complaints regarding conditions of detention in the Wędrzyn Temporary Guarded Centre for Foreigners, as required by Article 35 § 1 of the Convention?

15. Did the conditions of the applicants’ detention in the Wędrzyn Temporary Guarded Centre for Foreigners amount to treatment contrary to Article 3 (see: M.S.S. v. Belgium and Greece , cited above, §§ 216-222; Abdi Mahamud v. Malta , no. 56796/13, § 78-90, 3 May 2016)?

APPENDIX

No.

Application no.

Case name

Applicant Year of Birth Nationality

Notes

1.

51241/22

M.A. v. Poland

M.A 1996 Syrian

The applicant belongs to Ismaili minority. He arrived at the Polish-Belarusian border on 17/11/2021 and was pushed-back on four occasions. On 22/11/2021 he received decision obliging him to leave the territory of Poland. It was enforced immediately. On 21/12/2021 he was apprehended by the Polish Border Guards and placed in the Czeremcha Border Guard Post. On 24/12/2021 the Bielsk Podlaski District Court the VII Criminal Division in Hajnówka committed him to a guarded centre for foreigners. It is not clear in which guarded centre for foreigners he was placed. On 11/02/2022 he was transferred to the Krosno Odrzańskie Guarded Centre for Foreigners and, on 15/02/2022, to the Lesznowola Guarded Centre for Foreigners. On 06/05/2022 the Head of the Office for Foreigners released the applicant.

2.

51248/22

G.K. v. Poland

G. K. 1994 Syrian

The applicant belongs to Ismaili minority. He arrived at Polish-Belarusian border on 17/11/2021 and was pushed-back on four occasions. On 22/11/2021 he received a decision obliging him to leave the territory of Poland. It was enforced immediately. On 21/12/2021 he was apprehended by the Polish Border Guards and placed in the Czeremcha Border Guard Post. On 24/12/2021 the Bielsk Podlaski District Court, VII Criminal Division in Hajnówka committed him to a guarded centre for foreigners. He was placed in the Wędrzyn Temporary Guarded Centre for Foreigners. On 11/02/2022 he was transferred to the Krosno Odrzańskie Guarded Centre for Foreigners and, on 15/02/2022, to the Lesznowola Guarded Centre for Foreigners. On 06/05/2022 the Head of the Office for Foreigners released the applicant.

3.

51284/22

A.H.A. v. Poland

A.H.A 1973 Iraqi

On 19 November 2021 the applicant arrived at Polish-Belarusian. Between 19 November and 19 December 2021 he was pushed-back on three occasions. On 21/12/2021 he was apprehended by the Polish Border Guards. On 23/12/2021 the Bielsk Podlaski District Court committed him to a guarded centre for foreigners. He was placed in the Wędrzyn Temporary Guarded Centre for Foreigners. On 15/02/2022 he was transferred to the Lesznowola Guarded Centre for Foreigners. On 20/06/2022 the applicant was released.

4.

51285/22

N.M.A. v. Poland

N.M.A. 1989 Yemeni

The applicant is a Sunni. He is a person with disability. He had his leg amputated. On 19/11/2021 he arrived at the Polish-Belarusian border. Between 20 November and 19 December 2021 he was pushed-back on six occasions. On 21/12/2021 he was apprehended by the Polish Border Guards. On 23/12/2021 the Bielsk Podlaski District Court committed him to a guarded centre for foreigners. He was placed at first in the Połowce Reception Centre and then in the Wędrzyn Temporary Guarded Centre for Foreigners. On 14/01/2022 the Head of Nadodrzański Unit of Border Guard released the applicant.