Published on 24 April 2023

FIRST SECTION

Application no. 48018/21 A.A. and Others against Poland and 2 other applications (see list appended) communicated on 5 April 2023

SUBJECT MATTER OF THE CASES

The present three applications were lodged by six applicants. They concern the immigration crisis on the 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 food, water, and shelter and in harsh weather conditions including frequent rains and low temperatures. They further allege violation of Article 4 of Protocol No. 4 alone and in conjunction with Article 13 that they were expelled from Polish territory without any formal decision or any decision against which they could effectively appeal.

The applicants in cases B.H. v. Poland (no. 57554/21) and H.K. and H.U. v. Poland (no. 58103/21) further 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.

All applicants were committed to guarded centres for foreigners. They complain, invoking Article 5 § 1 (f) and 5 § 4 of the Convention, that the decisions ordering their detention lacked legal and factual grounds and that the review of their appeals against their detention orders was limited in scope and the respective procedure lacked necessary guaranties. They further complain under Article 3 of the Convention about conditions of their detection.

Summaries 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 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 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).

ADDITIONAL QUESTIONS IN

B.H. v. Poland (no. 57554/21),

H.K. and H.U. v. Poland (no. 58103/21),

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’ deprivation of liberty “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?

QUESTIONS CONCERNING ALL APPLICATIONS

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 guarded centres for foreigners, and with reference to case B.H. v. Poland (no. 57554/21) also 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)?

12. As regards the applicants’ complaints concerning conditions of their detention in guarded centres for foreigners and, with reference to case B.H. v. Poland (no. 57554/21) also in Border Guard posts, have they exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

13. Did the conditions of the applicants’ detention in the Wędrzyn Temporary Guarded Centre for Foreigners and, with reference to case B.H. v. Poland (no. 57554/21) also in Border Guards posts 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)?

ADDITIONAL QUESTIONS IN

B.H. v. Poland (no. 57554/21)

H.K. and H.U. v. Poland (no. 58103/21)

14. 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 Guard respected in the present cases and 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 application B.H. v. Poland (no. 57554/21), the applicant was not brought to a hearing at which his appeal against detention was examined.

List of applications

No.

Application no.

Case name

Lodged on

Applicant Year of Birth Nationality

Represented by

Summary of facts

1.

48018/21

A.A. and Others v. Poland

30/09/2021

A. A. 1994 Iraqi H. M. H. 2002 Iraqi A. H. N. 1992 Iraqi

Piotr KŁADOCZNY

The applicants are three Iraqi nationals, members of LGBT community.

Between 26 and 30 September 2021 they tried to cross Polish-Belarusian border several times, including on 30/09/2021.

On 01/10/2021 the Court applied rule 39 of the rules of Court. The interim measure was lifted on 21/10/2021.

On 04/10/2021 the applicants were apprehended by the Polish Border Guard.

On 06/10/2021 the Bielsk Podlaski District Court committed the applicants to guarded centre for foreigners. They stayed first in the Krosno Odrzańskie Guarded Centre for Foreigners and then in the Wędrzyn Temporary Guarded Centre for Foreigners. They were released on 02/04/2022

2.

57554/21

B.H. v. Poland

29/11/2021

B.H. 1981 Syrian

Piotr KŁADOCZNY

On 14/11/2021 the applicant arrived on the Polish-Belarusian Border.

He claims that he was pushed-back by the Polish Border Guards on five occasions, including on 16 and 22 November 2021.

On 22/11/2021 the applicant received a decision obliging him to leave territory of Poland ( postanowienie o opuszczeniu terytorium Rzeczypospolitej Polskiej ), which was enforced immediately.

On 30/11/2021 the Court applied rule 39 of the rules of Court. The interim measure was lifted on 08/06/2022.

On 01/12/2021the applicant was apprehended by Polish Border Guards.

Between 2 and 8 December 2021 he was detained in the Szudziałowo Border Guard Post and, between 8 and 14 December 2021, in the Narewka Border Guard Post.

On 04/12/2021 the Sokółka District Court committed the applicant to a guarded centre for foreigners.

On 15/12/2021 the applicant was placed in the Wędrzyn Temporary Guarded Centre for Foreigners.

On 14/04/2022 the Head of the Aliens Office released the applicant.

3.

58103/21

H.K. and H.U. v. Poland

01/12/2021

H. K. 1976 Turkish H. U. 1987 Turkish

Ewa OSTASZEWSKA-ŻUK

The applicants are two Kurds. They are citizens of Türkiye.

Between 26 November and 3 December 2021 the applicants were pushed back on two occasions.

On 02/12/2021 the Court applied rule 39 of the rules of Court. The interim measure was lifted on 27/01/2022.

On 02/12/2021 the applicants were apprehended by the Polish Border Guards.

On 06/12/21 the Bielsk Podlaski District Court committed the applicants to the Wędrzyn Temporary Guarded Centre for Foreigners. On 11/02/2022 they were transferred to the Krosno Odrzańskie Guarded Centre for Foreigners.

On 03/07/2022 the applicants were released.