Published on 24 April 2023

FIRST SECTION

Application no. 53181/21 I.A. and Others against Poland and 3 other applications (see list appended) communicated on 5 April 2023

SUBJECT MATTER OF THE CASE

The present four applications were lodged by 16 applicants, 10 of whom are minors. They concern the immigration crisis on Polish-Belarusian border.

All the applicants are foreigners who tried to enter Poland several times in an irregular manner. They complain under Articles 2 and 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 access to medical aid, food, water, and shelter and in harsh weather conditions including frequent rains and low temperatures.

In this respect they also rely on Article 5 § 1 of the Convention claiming that they were deprived of their liberty, because the officials of both Poland and Belarus did not allow them to leave the border area and because Belarus cannot be considered a safe country for asylum seekers. Applicants in cases I.A. and Others v. Poland (no. 53181/21) and A.H.A. and N.A.A.H. v. Poland (no. 53566/21) complain under Articles 5 § 2 and 5 § 4 that they were not informed about the reasons for their deprivation of liberty and that they could not appeal against it.

Relying on the same Articles the applicants in all cases complain that in the course of their pushbacks, Polish officials deprived them of their liberty without any procedural safeguards.

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.

Applicants in cases Z.K. and Others v. Poland (no. 16746/22), S.H. and Others v. Poland (no. 16748/22) complain also under Article 3 of the Convention about violence inflicted on them by the Polish Border Guards.

All applicants were committed to guarded centres for foreigners. They complain, invoking Article 5 § 1 (f) and 5 § 4 of the Convention, that decisions ordering their detention lacked legal and factual grounds and proper consideration of the needs of the children applicants. They also allege that the review of their appeals against detention was limited in scope and that the relevant procedure lacked necessary guaranties.

They further complain that their placement in guarded centres for foreigners amounted to a violation of Articles 3 and 8 of the Convention. The applicants in cases I.A. and Others v. Poland (no. 53181/21) and A.H.A. and N.A.A.H. v. Poland (no. 53566/21) also invoke Article 3 of the Convention with reference to conditions of their detection.

Finally, in I.A. and Others v. Poland (no. 53181/21) the applicants complain under the Article 5 § 4 of the Convention that their appeal against the order of the Bielsk Podlaski District Court of 6 November 2021 had not been examined until they were released from detention.

Summary of facts of the cases, as submitted by the applicants, are 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 Iraq?

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 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 the Polish territory without any formal decision (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 on the dates of their alleged pushbacks specified in the annex and, with reference to cases Z.K. and Others v. Poland (no. 16746/22) and S.H. and Others v. Poland (no. 16748/22), also on other occasions in the period between their arrival at the Polish – Belarusian border and their last successful attempt to cross the border? In particular, did the deprivation of liberty fall within paragraphs (b) or (f) of this provision?

8. Was the applicants’ arrest 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 QUESTIONS IN

Z.K. and Others v. Poland (no. 16746/22)

S.H. and Others v. Poland (no. 16748/22)

11. Did the officers of Polish Border Guards or other Polish forces present on the border subject the applicants to treatment contrary to Article 3 of the Convention, when they allegedly pushed them back to Belarus?

12. Taking into account the applicants’ allegations that Belarus was not a safe country for them as asylum seekers and considering that Polish officials did not allow them into Polish territory, were they deprived of their liberty in breach of Article 5 § 1 of the Convention? If so, did their 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)?

13. Was the applicants’ alleged deprivation of liberty referred to above “in accordance with a procedure prescribed by law”?

ADDITIONAL QUESTIONS IN

I.A. and Others v. Poland (no. 53181/21),

A.H.A. and N.A.A.H. v. Poland (no. 53566/21),

14. 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)?

15. Was the applicants’ alleged deprivation of liberty referred to above “in accordance with a procedure prescribed by law”?

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

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

QUESTIONS CONCERNING ALL APPLICATIONS

18. Did the applicants’ placement in guarded centres for foreigners and, where applicable (see appended table) Border Guard posts amount to treatment contrary to Article 3 of the Convention (see: M.H. and Others v. Croatia , nos. 15670/18 and 43115/18, §§ 183-186, 18 November 2021)?

19. 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 and, where applicable in border guard posts, 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)? Did it respect the State obligations as regards immigration detention of minors (see: M.H. and Others v. Croatia , cited above, §§ 236-239)?

20. 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 in applications I.A. and Others v. Poland (no. 53181/21), A.H.A. and N.A.A.H. v. Poland (no. 53566/21), the applicants were not brought to hearings at which their appeals against detention were examined.

21. 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)?

ADDITIONAL QUESTIONS IN

I.A. and Others v. Poland (no. 53181/21)

A.H.A. and N.A.A.H. v. Poland (no. 53566/21),

22. As regards the applicants’ complaints concerning conditions of their detention in the Czerwony Bór Guarded Centre for Foreigners, have they exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

23. Did the conditions of the applicants’ detention in the Czerwony Bór Guarded Centre for Foreigners amount to treatment contrary to Article 3 of the Convention(see: Khlaifia and Others v. Italy [GC], no. 16483/12, § 158 ‑ 162, 15 December 2016)?

24. Did the length of the proceedings, by which the applicants sought to challenge the lawfulness of their detention in guarded centre for foreigners, comply with the “speed” requirement of Article 5 § 4 of the Convention? Reference is made to the fact that the applicants’ appeal against the order of 6 November 2021 issued by the Bielsk Podlaski District Court, VII Criminal Division in Hajnówka, committing them to guarded centre for foreigners had not been examined until they were released from detention.

List of applicants

No.

Application no.

Case name

Lodged on

Applicant Year of Birth Nationality

Represented by

Summary of facts

1.

53181/21

I.A. and Others v. Poland

01/11/2021

I. T. S. 1980 Iraqi F. A. H. 2012 Iraqi A. A. H. 2007 Iraqi

Maria POSZYTEK

The applicants in cases no. 53181/21 and 53566/21 form a family – a married couple (first applicants in both cases) with three children.

On 20/10/21 they arrived at the Polish-Belarusian border.

They were pushed back on 24 and 25 October 2021. After they had crossed the border again, they got separated in the forest on the Polish side.

On 02/11/2021 the Court applied Rule 39 in case 53181/21 and on 04/11/2021 in case no. 53566/21. The interim measure was lifted in both cases on 14/03/2022.

On 04/11/2021 the applicants in case no. 53181/21 were placed in the Bialowieża Border Guard Post, on 05/11/2021 the applicants in case no. 53566/21 joined them.

On 06/11/2021 the Bielsk Podlaski District Court the VII Criminal Division in Hajnówka committed the applicants in case no. 53181/21 to guarded centre for foreigners.

On 08/11/2021 the Bielsk Podlaski District Court committed the applicants in case no. 53566/21 to guarded centre for foreigners.

On 10/11/2021 the applicants were placed in the Czerwony Bór Guarded Centre for Foreigners.

On 07/12/2021 the Head of the Podlaskie Unit of Border Guard released the family from detention due to poor state of mental health of the second applicant in case no. 53566/21.

2.

53566/21

A.H.A. and N.A.A.H. v. Poland

04/11/2021

H. A.A. 1980 Iraqi N. A. H. 2006 Iraqi

Maria POSZYTEK

3.

16746/22

Z.K. and Others v. Poland

04/04/2022

Z. A. K. 1989 Iraqi

B. A. O. 1994 Iraqi W. Z. K. 2012 Iraqi F. Z. K. 2016 Iraqi M. Z. K. 2017 Iraqi B. Z. K. 2019 Iraqi

Piotr KŁADOCZNY

The applicants are a family, parents (the first and the second applicant) with four children. The third applicant suffers from severe disability.

They arrived at Polish – Belarusian Border in September 2021. They were pushed – back on several occasions, including on 14/10/2021 and on 26/03/2022.

On 01/04/2022 the applicants crossed the border again.

On 04/04/2022 the Court applied rule 39 of the Rules of Court. The interim measure was lifted on 29/04/2022.

On 04/04/2022 the Bielsk Podlaski District Court, VII Criminal Division in Hajnówka committed the applicants to the Bialystok Guarded Centre for Foreigners.

On 01/07/2022 the head of the Biała Podlaska Border Guard Unit released the applicants.

4.

16748/22

S.H. and Others v. Poland

01/04/2022

S. J. H. 1980 Iraqi S. S. S.

1982 Iraqi S. S. J. 2010 Iraqi D.S. J. 2017 Iraqi S. S. J.L 2014 Iraqi

Piotr KŁADOCZNY

The applicants are a family, parents (the first and the second applicant) with three children. They are Kurds. The third and fifth applicants suffer from various diseases.

They arrived at the Polish-Belarusian border in November 2021. They tried to cross the border but were pushed-back. They were also pushed-back on 26/03/2022.

On 01/04/2022 the applicants crossed the border again.

On 04/04/2022 the Court applied rule 39 of the Rules of Court. The interim measure was lifted on 29/04/2022.

On 04/04/2022 the Bielsk Podlaski District Court, VII Criminal Division in Hajnówka committed the applicants to the Bialystok Guarded Centre for Foreigners. On an unspecified date the applicants were transferred to the Biała Podlaska Guarded Centre for Foreigners. They were released on 28/09/2022.