Published on 5 June 2023

FIRST SECTION

Application no. 9323/19 N.M. against Poland lodged on 15 February 2019 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 expulsion decision issued against the applicant on security grounds.

The applicant is a Russian national of Chechen origin.

Between 2009 and 2019 he resided in Poland, having been granted, on 11 May 2010, subsidiary protection in relation to his brother being a Chechen combatant. On 11 June 2018 the Head of the Office for Foreigners revoked the applicant’s status. This decision was upheld on 22 October 2018 by the Refugee Council.

On 30 January 2019 the Head of the Warsaw Border Guard ordered the applicant to leave Poland and banned him from entering the territory of Poland and other Schengen countries for 5 years (decision no. NW ‑ WW/138/D-ZDP/2019). The authority considered that the military conflict in Chechnya had ended and the applicant could safely return to his country. Additionally, it was also held that the applicant posed danger to the national security. In this context, the decision was based on classified information provided by the Internal Security Agency. The reasoning of the decision did not contain any details as to why the applicant was considered to pose danger to the national security. The decision was enforceable immediately.

The applicant appealed. The proceedings are currently ongoing after the Warsaw Regional Administrative Court quashed, by a judgment of 5 October 2021, the decision of the Head of the Office for Foreigners issued on 19 June 2019 declaring that the applicant’s appeal had been lodged out of time.

From 30 January to 25 June 2019 the applicant was detained pending expulsion. No further information or documents were submitted in respect of this measure.

Following a request under Rule 39 of the Rules of the Court filed by the applicant, on 18 February 2019 the Court granted an interim measure and ordered that the applicant not be removed to Russia. On 31 January 2020 the Court lifted the interim measure after the applicant’s lawyer had informed the Court (in August 2019) that his client had left Poland and was living in Germany.

Relying on Article 13 of the Convention, in conjunction with Article 3 of the Convention, the applicant complains about the lack of an effective remedy with a suspensive effect to appeal against the decision ordering his return to Russia.

QUESTIONS TO THE PARTIES

As to the facts:

1. What is the exact 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, 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 Russia (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)?