Published on 5 June 2023

FIRST SECTION

Application no. 37042/20 S.S. against Poland lodged on 25 August 2020 communicated on 15 May 2023

SUBJECT MATTER OF THE CASE

The application concerns the lack of a suspensive effect of a remedy to challenge the decision ordering the departure on security grounds of the applicant who had been legally residing in Poland.

Between 2017 and 2020 the applicant, who is a Tajikistani national, lived in Poland, based on a series of temporary resident permits.

On 4 May 2020 the Minister of the Interior issued a decision ordering the applicant to return to Tajikistan and forbidding him to enter Poland and Schengen zone for five years. The Minister found that the applicant posed a serious, real and imminent threat to the national security, which was linked to terrorism or espionage (Section 329a of the Aliens Act of 12 December 2013). The decision was immediately enforceable.

On 12 August 2020 the Warsaw Court of Appeal refused to stay the enforcement of the return decision, as sought by the applicant.

Following a request under Rule 39 of the Rules of the Court filed by the applicant, on 27 August 2020 the Court granted an interim measure and ordered that the applicant not be removed to Tajikistan until the end of the proceedings before the Court.

On 9 February 2021 the Court lifted the interim measure after the applicant’s lawyer had informed the Court that the applicant was now living in Turkey.

Following the applicant’s appeal, on 12 November 2020 the Warsaw Regional Administrative Court upheld the Minister’s return decision.

On 6 September 2022 the Supreme Administrative Court quashed that decision and the Regional Administrative Court’s judgment and remitted the case.

The proceedings are currently ongoing.

Relying on Article 13 of the Convention, in conjunction with Article 3, and Article 1 of Protocol no. 7 to the Convention, the applicant complains about the lack of effective remedy with a suspensive effect to appeal against the decision ordering his return to Tajikistan.

QUESTIONS TO THE PARTIES

As to the facts:

1. What is the date on which the applicant left Poland?

As to the law :

2. Is Article 13 of the Convention, in conjunction with Article 3 and Article 1 of Protocol No. 7 to the Convention, applicable in the applicant’s case? More specifically, was the applicant at any point in time threatened by expulsion to his home country and did he have an arguable claim that he would face ill-treatment in Tajikistan (see Auad v. Bulgaria , no. 46390/10, § 106, 11 October 2011 and A.D. and Others v. Turkey , no. 22681/09, §§ 85 ‑ 94, 22 July 2014)?

3. In the affirmative, did the applicant have at his disposal an effective domestic remedy for his complaints under Article 3 and Article 1 of Protocol No. 7, as required by Article 13 of the Convention ( M.K. and Others v. Poland , nos. 40503/17 and 2 others, § 220, 23 July 2020; A.D. and Others v. Turkey , no. 22681/09, 22 July 2014; Auad v. Bulgaria , no. 46390/10, 11 October 2011; and Gebremedhin [Gaberamadhien] v. France , no. 25389/05, ECHR 2007‑II)?