Published on 12 June 2023
FIRST SECTION
Application no. 12752/22
H. K. and Others
against Poland
lodged on 10 March 2022
communicated on 22 May 2023
SUBJECT MATTER OF THE CASE
The application concerns the migration crisis on the Polish-Belarussian border. It was lodged by five Syrian nationals, who had tried to enter Poland several times in an irregular manner.
The applicants complain under Article 3 of the Convention and Article 4 of Protocol No. 4 that, on 10 March 2022, the Polish authorities issued decisions obliging them to immediately leave the Polish territory, without investigating their individual situations, including a risk of chain-refoulement. They also complain that they were expelled to Belarus where they had previously experienced violence.
Relying on Article 13 of the Convention in conjunction with Articles 3 and Article 4 of Protocol 4 the applicants complain that the decision of 10 March 2022 was immediately enforceable and that their appeal would not have a suspensive effect.
Lastly, they complain under Article 3 of the Convention that after 10 March 2022 they were forced to wander in the forests for about 5-8 days without food, water and shelter and in harsh weather conditions including frequent rains and low temperatures.
QUESTIONS TO THE PARTIES
1. Did the facts related to situation on the 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 torture or 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 (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. Were the decisions of 10 March 2022 obliging the applicants to immediately leave the territory of Poland in breach of Article 3 of the Convention? In particular, before deciding on their return, did the Polish authorities consider the risk that the applicants would be exposed to a risk of being subjected to torture and inhuman treatment if returned to Belarus (see Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, §§ 132-133, ECHR 2012; M.K. and Others v. Poland, nos. 40503/17 and 2 others, 23 July 2020, §§ 178-182 and 185)?
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 Syria?
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 the decisions of 10 March 2022 were issued without consideration of their individual situation as aliens requesting international protection and that these decisions were immediately enforceable (see M.K. and Others v. Poland, cited above §§ 197‑209).
6. As regards the applicants’ complaints under Article 3 of the Convention and Article 4 of Protocol No. 4 to the Convention concerning their expulsion to Belarus on 10 March 2022, did they have at their disposal an effective domestic remedy, as required by Article 13 of the Convention? Reference is made to the fact that the said decisions were based on section 303b of the Aliens Act of 2013 and were immediately enforceable (see M.K. and Others v. Poland, cited above §§ 147 and 219‑220).
APPENDIX
No.
Applicant’s Name
Year of birth/registration
Nationality
1.
H. K.
1989
Syrian
2.
G. A.
1991
Syrian
3.
E. B.
1997
Syrian
4.
K. B.
1997
Syrian
5.
N. L.
1993
Syrian