Published on 27 November 2023

FIRST SECTION

Application no. 20065/23 S.A. against Poland lodged on 23 May 2023 communicated on 6 November 2023

SUBJECT MATTER OF THE CASE

The present application was lodged by a Tajik national. The case concerns his expulsion to Tajikistan despite the Court having granted an interim measure.

The applicant claims to be a supporter of “Group24” – a Tajik opposition group campaigning against the country’s president. In 2019 the Tajik authorities requested the applicant’s extradition from Ukraine on charges of involvement in the activities of the terrorist groups “Islamic State of Iraq and the Levant” and “Al-Nusra Front”, active in Syria. On 4 February 2021 the Court granted the applicant an interim measure indicating to the Ukrainian authorities that they should not extradite the applicant to Tajikistan. On 24 February 2022 the Court delivered a judgment against Ukraine in which it held that there would be a violation of Article 3 (procedural limb) if the applicant were to be expelled to Tajikistan (application no. 7445/21).

On 3 March 2022, due to the Russian Federation’s aggression against Ukraine, the applicant tried to flee to Poland. He was detained at the border as an Interpol Red Notice had been issued against him.

The Polish authorities instigated extradition proceedings against the applicant. On 16 March 2023 the Przemyśl Regional Court declared that the applicant could not be removed to Tajikistan because his rights might be violated there. On 29 May 2023 the Rzeszów Court of Appeal upheld that decision.

In the meantime, the applicant applied for international protection. On 1 February 2023 the Head of the Office for Foreigners dismissed his application. On 11 May 2023 the Refugees’ Council dismissed his appeal. On 15 June 2023 he lodged a complaint with the Regional Administrative Court. The proceedings are pending.

Independently from the extradition proceedings, the Polish authorities initiated proceedings regarding the applicant’s obligation to return to Tajikistan. On 22 May 2023 the Minister of the Interior ordered the applicant to leave the territory of Poland and barred him from entering the Schengen area for ten years. The Minister, relying on classified information, concluded that the applicant could pose a threat to national security as he could conduct terrorist activities. On 5 June 2023 the applicant lodged a complaint with the Regional Administrative Court. The relevant proceedings are pending.

On 24 May 2023 the Court granted an interim measure and ordered that the applicant should not be removed from Poland until three weeks after the finalisation of the proceedings concerning the decision of 22 May 2023.

Despite that, on 28 May 2023 the authorities put the applicant on an aeroplane to Tajikistan. Eventually, the deportation was interrupted by the aeroplane’s pilot, who refused to take the applicant on board.

Ultimately, on 22 June 2023 the applicant was deported to Tajikistan via Bulgaria (an interim measure request against Bulgaria was not examined as it had been submitted too late) and Georgia (measure granted).

The applicant complains under Article 2 that his life was put in danger due to the Polish Government’s decision to remove him to Tajikistan. He also relies upon Article 3, complaining that in Tajikistan he might be subjected to torture and inhuman and degrading treatment due to his anti ‑ government activism there.

He also complains, relying upon Article 8 in conjunction with Article 13 of the Convention, that he had no access to an effective remedy whereby which he could raise complaints against his deportation as the Minister’s decision ordering his deportation was immediately enforceable and his appeal had no suspensive effect. He further complains that, due to the deportation decision being based on classified information, he had no way to argue effectively with the Minister’s factual findings or to defend his standpoint. These complaints are to be examined under Articles 2 and 3 in conjunction with Article 13 of the Convention.

The applicant further complains that by executing the deportation order, the Polish authorities manifestly violated the interim measure indicated by the Court. This complaint is to be examined under Article 34 of the Convention.

QUESTIONS TO THE PARTIES

1. In the light of the general situation in Tajikistan and the applicant’s personal circumstances, did he face a risk of being subjected to treatment in breach of Articles 2 and 3 of the Convention in Tajikistan (see F.G. v. Sweden [GC], no. 43611/11, § 114, 23 March 2016)? In particular, before deciding on the applicant’s expulsion, did the authorities and, more specifically, the Minister of the Interior whose decision constituted a basis for the applicant’s removal, carry out an adequate assessment of his claim about the above ‑ mentioned risk (see F.G. v. Sweden [GC], cited above, §§ 125 ‑ 27)?

2. Did the applicant have at his disposal an effective remedy for his complaints under Articles 2 and 3 of the Convention, as required by Article 13?

(a) In particular, did he have access to a remedy with a suspensive effect (see, mutatis mutandis, M.K. and Others v. Poland , nos. 40503/17 and 2 others, § 143, 23 July 2020)?

(b) Did the fact that the applicant was only informed to a limited extent of the factual elements underlying the decision to expel him hinder his right to access to an effective remedy under Article 13 (see, mutatis mutandis, Poklikayew v. Poland , no. 1103/16, § 80, 22 June 2023)?

3. Having regard to the state’s obligations to comply with an interim measure issued by the Court (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, ECHR 2005-I), has there been any hindrance by the State in the present case with the effective exercise of the applicant’s right of application, ensured by Article 34 of the Convention?