Published on 24 April 2023

FIRST SECTION

Application no. 61103/21 T.Z. and R.Z. against Poland lodged on 20 December 2021 communicated on 5 April 2023

SUBJECT MATTER OF THE CASE

The case concerns the immigration crisis on Polish-Belarusian border. The applicants are father (the first applicant) and daughter (the second applicant). At the time of the events complained of the second applicant was 17 years old.

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 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. With reference to this allegation, they 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.

After the applicants had been apprehended by the Polish Border Guards, they 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 proper consideration of the needs of minors, that the review of their appeals against detention was limited in scope and that the relevant procedure lacked necessary guaranties.

They further allege that their placement in guarded centre for foreigners amounted to a violation of Articles 3 and 8 of the Convention.

QUESTIONS TO THE PARTIES

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 Syria?

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 the Polish territory without any formal decision or, in situations 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?

11. Were the applicants deprived of their liberty in breach of Article 5 § 1 (f) of the Convention? In particular, was their detention in the Czeremcha Border Guard Post and in the Czerwony Bór Guarded Centre 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). Did it respect the State obligations in the context of immigration detention of minors (see: M.H. and Others v. Croatia , cited above, §§ 236-239)?

12. 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 case? 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 a hearing at which their appeals against detention were examined.

13. Did the applicants’ placement in the Czeremcha Border Guard Post and in the Czerwony Bór Guarded Centre for Foreigners 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)?

14. 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)?