Communicated on 7 September 2017
FIRST SECTION
Application no 51246/17
D.A. and Others
against Poland
lodged on 20 July 2017
STATEMENT OF FACTS
1. The applicants, Mr D.A., Mr M.A., and Ms S.K., are Syrian nationals who currently reside in Belarus. The first two applicants are brothers, the first and the third applicant are married. The President has granted the applicants’ requests for their identities not to be disclosed to the public (Rule 47 § 4). The applicants are represented before the Court by Ms M. Górczyńska and Mr J. Białas, lawyers practising in Warsaw.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. On four occasions in July 2017 the applicants travelled to the Polish‑Belarusian border crossing at Terespol. According to the applicants, each time they expressly stated a wish to lodge an application for international protection. They also asked for an Arabic interpreter to be present. They refused to sign documents with which they were presented, as they were exclusively in Polish and the applicants did not understand them.
4. According to the applicants, when talking to the border guards they expressed fears for their safety. They stated that they came from Syria where a violent armed conflict was going on. The first and second applicants had received conscription orders from the Syrian Army and had failed to comply with them. They submit that this fact puts them at risk of fifteen years’ imprisonment if returned to Syria. Moreover, the first and second applicants declared that they belong to the Druze ethnoreligious group, which is one of the most persecuted minorities in Syria, both by the Assad regime and by Sunni extremists.
5. The applicants also stated that although they had resided in Belarus since 2013 (the first and second applicant) and 2015 (the third applicant) they could not continue their stay in that country, as their visas had expired and as in practice it would be impossible for them to obtain international protection there.
6. Each time the border guards summarily turned the applicants away to return to Belarus.
7. It appears from the information submitted by the applicants and the respondent Government that on every occasion when the applicants presented themselves at the border crossing in Terespol, administrative decisions were issued to the effect of turning the applicants away from the Polish border on the grounds that they did not have any documents authorising their entry to Poland and that they had not stated that they had been at risk of persecution in their home country but were in fact trying to emigrate for professional or personal reasons (specifically in order to join their family who lived in Europe or to pursue professional careers outside of Belarus). The applicants have not informed the Court whether they appealed against any of those decisions issued before 20 July 2017.
8. On 20 July 2017, when the applicants presented themselves at the border crossing in Terespol, their representative submitted a request under Rule 39 of the Rules of Court asking the Court to prevent the applicants from being removed to Belarus.
9. On 20 July 2017, at 10.08 a.m. the Court (the duty judge) decided to apply Rule 39 of the Rules of Court, indicating to the Government that the applicants should not be removed to Belarus until 3 August 2017. The Government were informed of the interim measure before the planned time of expulsion. The applicants were returned to Belarus at 11.25 a.m.
10. On 21 July 2017 the applicants returned to the border checkpoint in Terespol carrying with them the copy of a letter informing their representative of the Court’s decision concerning the interim measure. They submitted that they had expressly stated that they had sought international protection and had showed the border guards copies of the letters summoning the first and the second applicants to serve in the Syrian Army. The applicants alleged that when confronted with the situation of the officers of the Border Guard ignoring their requests for international protection, they had tried to record the course of the interviews on their mobile phones. However, when the officers conducting the interviews had realised that, they had demanded the applicants’ phones and erased the recordings. The applicants had been again refused entry to Poland.
11. The applicants lodged appeals against the decisions refusing them entry to Poland issued on 20 and 21 June 2017. Those appeals are currently pending before the head of the National Border Guard (Komendant Główny Straży Granicznej).
12. On 21 July 2017 the Government requested that the Court reconsider its decision concerning the interim measure indicated under Rule 39 of Rules of Court. The Government argued that the applicants had never requested international protection, nor had they given any reasons for such protection.
13. On 3 August 2017 the Court (the duty judge) decided to prolong the interim measure until 8 September 2017 and to clarify that the indication, made to the Government on 20 July 2017 – that the applicants should not be removed to Belarus – should be understood in such a way that – when they presented themselves at a Polish border checkpoint – the applicants’ applications for asylum should be received and registered by the Border Guard and forwarded for examination by the competent authorities. Pending examination of the asylum application, the applicants should not be sent back to Belarus.
14. On 7 September 2017 the Court (the duty judge) decided to prolong the interim measure until further notice.
B. Relevant domestic law and practice
15. The procedure for granting refugee status and “tolerated stays” to aliens and for their expulsion is regulated by the Protection of Aliens Within the Territory of the Republic of Poland Act of 13 June 2003 (Ustawa o udzielaniu cudzoziemcom ochrony na terytorium Rzeczypospolitej Polskiej – hereinafter “the 2003 Act”).
16. The grounds and conditions for granting refugee status or supplementary international protection are set out in sections 13-22 of the 2003 Act. The procedure of granting protection is set out in sections 23-54f of that Act.
17. Pursuant to sections 24 and 29 of the 2003 Act the Border Guard is obliged to provide an alien who expresses the wish to apply for international protection in Poland with the possibility to lodge such an application and to facilitate it, inter alia, by ensuring the assistance of a translator and by giving – at the alien’s request or with their consent – the representatives of international or non-governmental organisations assisting refugees access. The person who lodged an application for international protection is obliged to report to the reception centre indicated by the border guards (paragraph 1 point 5i of section 30 of the 2003 Act). The application for international protection is transferred for examination to the head of the Aliens Office (Szef Urzędu do Spraw Cudzoziemców), who should decide on it within six months (paragraph 1 of section 34 of the 2003 Act).
18. A decision of the head of the Aliens Office can be appealed against by the alien to the Refugee Board (Rada do Spraw Uchodźców). A decision of the Refugee Board can be appealed again if he or she lodges a complaint with the Warsaw Regional Administrative Court (Wojewódzki Sąd Administracyjny w Warszawie) and – as the last instance – a cassation appeal with the Supreme Administrative Court (Naczelny Sąd Administracyjny).
19. If an application for international protection and an appeal against the decision of the head of the Aliens Office has been lodged, the enforcement of the return procedure is not initiated and any procedure that has already been initiated is suspended. The complaint to the administrative court does not have automatic suspensive effect.
20. When an alien present at the border checkpoint does not express a wish to lodge an application for international protection and does not have a valid document allowing him or her to enter Poland, the border guards must instigate a refusal-of-entry procedure, which is regulated by sections 33 and 34 of the Aliens Act of 12 December 2013 (Ustaw o cudzoziemcach – “the 2013 Act”).
21. Under those provisions the decision is issued by the head of the relevant unit of the Border Guard (Komendant placówki Straży Granicznej) and is executed immediately. The person who was denied entry to Poland can appeal against this decision to the head of the National Border Guard and, subsequently, lodge a complaint with the Warsaw Regional Administrative Court and a cassation appeal with the Supreme Administrative Court. None of those remedies has suspensive effect.
COMPLAINTS
The applicants complain that the fact that the Polish authorities repeatedly denied them the possibility to lodge an application for international protection was in breach of Article 3 of the Convention.
Under Article 4 of Protocol No. 4 to the Convention, the applicants allege that their situation was not reviewed individually and that they are victims of a general policy adopted by the Polish authorities and aimed at reducing the number of asylum applications registered in Poland.
Under Article 13 in conjunction with Article 3 of the Convention and Article 4 of Protocol No. 4 to the Convention the applicants state that an appeal against the decision denying them entry to Poland is not an effective remedy as its examination is not speedy enough, it has no suspensive effect and is not examined by an independent body.
Moreover, the applicants complain that the fact that the Polish authorities did not comply with the interim measure granted by the Court is in breach of Article 34 of the Convention.
QUESTIONS to the parties Having regard to procedural protection from torture and inhuman or degrading treatment, was the refusal to review the applicants’ application for international protection in the present case by the domestic authorities in breach of Article 3 of the Convention? In particular, before deciding on their return, did the Polish authorities consider the applicants’ claims that they would be exposed to a risk of being subjected to torture and inhuman treatment if returned to Belarus and further to Syria?
In the light of the applicants’ claims and the documents which have been submitted, would they face a risk of being subjected to treatment in breach of Article 3 of the Convention if returned to Belarus and further to Syria?
Did the circumstances and manner of the treatment of the applicants by the Polish Border Guard amount to degrading or inhuman treatment in breach of Article 3 of the Convention? Reference is made to the applicants’ statement that they tried to lodge an application for international protection a number of times.
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 the decisions concerning the denial of entry at the border checkpoint in Terespol were taken without giving consideration to the individual situations of the aliens requesting international protection.
Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 3 of the Convention and Article 4 of Protocol No. 4, as required by Article 13 of the Convention? In particular can an appeal against the decision of the Board Guard denying the applicants’ entry to Poland be considered an effective domestic remedy? Reference is made to the fact that it does not have suspensive effect.
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 applicants’ right of application, ensured by Article 34 of the Convention?
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