Published on 5 June 2023

FIFTH SECTION

Application no. 55558/22 Z.H.R. and Others against Poland lodged on 10 November 2022 communicated on 16 May 2023

SUBJECT MATTER OF THE CASE

The application concerns the detention of the applicants, a mother (the first applicant) and her two minor children, in a guarded centre for foreigners, pending their deportation.

The applicants are Iraqi nationals.

On 7 October 2021 the applicants were apprehended by the Polish Border Guard after crossing into Poland from Belarus.

On 8 October 2021 the Head of the Border Guard in Czeremcha ordered the applicants’ return to Iraq, without indicating the date by which they were to leave Poland. This decision became final and binding.

On 9 October 2021 the Bielsko Podlaskie District Court ordered that the applicants be detained in a guarded centre for foreigners. The measure was extended by decisions of various courts issued on 30 November 2021, and on 27 January, 11 March, and 10 June 2022. The latter decision was upheld on 13 July 2022, after the first applicant’s appeal. The domestic courts relied on the following grounds to justify the detention measure: the measure was necessary to ensure the applicants’ expulsion, there was a risk of the applicants’ absconding, and the applicants lacked financial resources to await their expulsion at liberty.

On 11 March 2022 the Head of the Border Guard in Biała Podlaska refused the first applicant’s application to have her and her children released from the guarded centre.

On 31 December 2021 the Head of the Office for Foreigners refused to grant the applicants a refugee status. This decision became final and binding.

According to an opinion drawn up by an independent psychologist on 28 June 2022, the first applicant, who had apparently had an episode of self-harm, could be suffering from anxiety, depression and suicidal thoughts. It was recommended that all applicants be urgently evaluated by a psychologist and a psychiatrist. In the event the first applicant’s condition was confirmed, it was recommended that she should be released from detention, otherwise, her life and health would be in real danger.

It appears that in July 2022 the first applicant was admitted to a psychiatric hospital.

On 29 July 2022 the Head of the Border Guard in Bielsko-Biala released the applicants from the guarded centre on the grounds that the continued detention of the first applicant constituted threat to her life or limb.

On an unspecified date the applicants left for Germany.

The applicants complain under Articles 3 and 8 of the Convention that the authorities had failed to consider alternative measures and that their protracted detention was in breach of prohibition of ill-treatment and the right to respect for private and family life, especially in view of the fact that the first applicant was suffering from depression and that the other two applicants are small children.

QUESTIONS TO THE PARTIES

Given that the applicants were committed from 7 October 2021 to 29 July 2022 to guarded centres for foreigners,

1. Have the applicants exhausted all effective domestic remedies in respect of their complaints, as required by Article 35 § 1 of the Convention (see, mutatis mutandis, Nikoghosyan and Others v. Poland , no. 14743/17, § 96, 3 March 2022?

2. Have the applicants been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention?

3. Has there been a violation of 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)?

List of applicants

No.

Applicant’s Name

Year of birth/registration

Nationality

Place of residence

1.Z. H. R

1995Iraqi

Wickede-Wimbern

2.T.A.M.

2020Iraqi

Wickede-Wimbern

3.T.M.M.

2017Iraqi

Wickede-Wimbern