Published on 24 April 2023

FIRST SECTION

Application no. 2509/22 M.M. and Others against Poland and 2 other applications (see list appended) communicated on 5 April 2023

SUBJECT MATTER OF THE CASE

The present three applications were lodged by five applicants. The cases concern the migration crisis on the Polish-Belarusian border.

All 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 case M.M. and Others v. Poland (no. 2509/22) complain also under Article 5 §§ 1, 2 and § 4 of the Convention that they were deprived of their liberty during their push-back on 21 and 22 August 2021, that they were not informed about the reasons for their arrest and that the Sokółka District Court, after having dealt with their appeals for two months, refused to examine them on the merits.

The third applicant in case M.M. and Others v. Poland (no. 2509/22) further complains under Article 3 of the Convention about violence allegedly inflicted on him by members of the Polish Border Guards.

All applicants were committed to guarded centres for foreigners. They complain invoking Article 5 § 1 (f) and 5 § 4 of the Convention that decisions ordering their detention lacked legal and factual grounds, that the review of their appeals against detention was limited in scope and that the relevant procedure lacked necessary guaranties. They further complain under Articles 3 and 8 of the Convention about conditions of their detention and under Article 13 that they had no effective remedy for their complaints relating to the conditions of their detention.

Additionally, the applicants in N.H. v. Poland (no. 10271/22) and A.R. v. Poland (no. 10373/22) complain under Article 5 § 1 of the Convention that between 30 August and 3 September 2021 they were held in Border Guard custody in contravention to time-limits provided by the Polish law.

Summary of facts of the cases, as submitted by the applicants, are included in the appendix.

QUESTIONS TO THE PARTIES

QUESTIONS CONCERNING ALL APPLICATIONS

1. Did the facts related to situation on 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 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

M.M. v. Poland (2509/22)

7. Did the officers of the Polish Border Guards or other Polish forces present on the border subject the third applicant to treatment contrary to Article 3 of the Convention when they allegedly pushed him back to Belarus?

8. Were the applicants deprived of their liberty in breach of Article 5 § 1 of the Convention during their alleged pushed-back on 21 and 22 August 2021? If so, did the deprivation of liberty fall within paragraph (b) or (f) of this provision?

9. Was the applicants’ arrest “in accordance with a procedure prescribed by law”?

10. Were the applicants informed promptly, in a language which they understood, of the reasons for their arrest, as required by Article 5 § 2 of the Convention?

11. Did the applicants have at their disposal an effective procedure by which they could speedily challenge the lawfulness of their arrest, as required by Article 5 § 4 of the Convention?

QUESTIONS CONCERNING ALL APPLICATIONS

12. Were the applicants deprived of their liberty in breach of Article 5 § 1 (f) of the Convention? In particular, were the decisions to detain them in guarded centres 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)? Reference is also made to an allegation which the applicants make in cases N.H. v. Poland (no. 10271/22) and A.R. v. Poland (no. 10373/22) that between 30 August and 3 September 2021 they were held in custody beyond the statutory time ‑ limits.

13. 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 cases? 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 informed about proceedings related to the prolongation of their detention.

14. Have the applicants exhausted all effective domestic remedies related to their complaint regarding conditions of detention in guarded centres for foreigners and, with reference to cases N.H. v. Poland (no. 10271/22) and A.R. v. Poland (no. 10373/22), also in border guard posts, as required by Article 35 § 1 of the Convention?

15. Did the conditions of the applicants’ detention in the Wędrzyn Temporary Guarded Centre for Foreigners and, with reference to cases N. H. v. Poland (no. 10271/22) and A. R. v. Poland (no. 10373/22), also in Kętrzyn Guarded Centre for Foreigners and the Dubicze Cerkiewne Border Guards Post, 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)?

16. Did the applicants’ detention in the facilities referred to in question no. 15 constitute an interference with their right to respect for their private and family life, within the meaning of Article 8 § 1 of the Convention?

17. If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

18. Did the applicants have at their disposal an effective domestic remedy for their complaints under Articles 3 and 8 relating to their detention in guarded centres for foreigners and border guard posts, as required by Article 13 of the Convention?

APPENDIX

List of applications

No.

Application no.

Case name

Lodged on

Applicant Year of Birth Place of Residence Nationality

Represented by

Summary of facts

1.

2509/22

M.M. and Others v. Poland

28/12/2021

M. M. 1988

The Netherlands Yemeni S. W. 1993 Luxembourg Yemeni J.A. 1996 Germany Afghan

Małgorzata JAŹWIŃSKA

The first and second applicants are Yemeni nationals, the third applicant is an Afghan national.

The applicants arrived at the Polish – Belarusian Border in August 2021. The Yemeni applicants were pushed-back on three occasions and the Afghan applicant was pushed-back on eight occasions.

They were also pushed-back during the night on 22 August 2021.

On 24/08/2021 the Sokółka District Court committed the applicants to a guarded centre for foreigners. They were placed in the Wędrzyn Temporary Guarded Centre for Foreigners.

On 06/05/2022 the first and the second applicant were released.

On 19/01/2022 the third applicant was released.

2.

10271/22

N.H. v. Poland

10/02/2022

N. H. 1996 Waldshut-Teingen Afghan

Małgorzata JAŹWIŃSKA

The applicant arrived at the Polish – Belarusian Border in August 2021. At night on 30 August 2021 he was pushed-back from Poland to Belarus. On 30/08/2021 he crossed the border again. He was apprehended by the Polish Border Guards and placed in the Narewka Border Guard Post. On 02/09/21 the Bielsk Podlaski District Court, VII Criminal Division in Hajnówka refused to commit the applicant to Guarded Centre for Foreigners. The applicant claims that he was not released after this decision had been issued. On 03/09/2021 the same Court issued a fresh decision committing the applicant to guarded centre for foreigners.

After that the applicant was detained in the Dubicze Cerkiewne Border Guard Post. On an unspecified date he was transferred to the Kętrzyn Guarded Centre for Foreigners and later to the Wędrzyn Temporary Guarded Centre for Foreigners. On 10/02/2022 he was transferred to the Krosno Odrzańskie Guarded Centre for foreigners.

On 01/03/2022 he was released.

3.

10373/22

A.R. v. Poland

10/02/2022

A.R. 1995

Heidelberg Afghan

Małgorzata JAŹWIŃSKA

The applicant arrived at the Polish – Belarusian Border in August 2021. During the night on 30 August 2021 he was pushed-back from Poland to Belarus.

On 30/08/2021 he crossed the border again. He was apprehended by Polish Border Guards and placed in the Narewka Border Guard Post. On 02/09/21 the Bielsk Podlaski District Court, VII Criminal Division in Hajnówka refused to commit the applicant to guarded centre for foreigners. The applicant claims that he was not released after this decision had been issued. On 03/09/2021 the same Court issued a fresh decision committing the applicant to guarded centre for foreigners.

The applicant was detained in the Dubicze Cerkiewne Border Guard Post. On an unspecified date he was transferred to the Kętrzyn Guarded Centre for Foreigners and later to the Wędrzyn Temporary Guarded Centre for Foreigners. On 10/02/2022 he was transferred to the Krosno Odrzańskie Guarded Centre for foreigners.

On 01/03/2022 he was released.