Communicated on 21 July 2017
FIRST SECTION
Application no 43643/17
M.K. and Others
against Poland
lodged on 20 June 2017
STATEMENT OF FACTS
1. The applicants, Mr M.K. (“the first applicant”) and Ms Z.T. (“the second applicant”), are Russian nationals who currently reside in Belarus. They have children. The President granted the applicants’ request for their identity not to be disclosed to the public (Rule 47 § 4). They are represented before the Court by Ms M.K. Dębska-Koniecek, a lawyer 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. In the period from September 2016 to July 2017 the applicants, with their children, travelled to the border crossing in Terespol on twelve occasions. They submit that each time they expressed a wish to lodge an application for international protection which, on at least one occasion, they had on them in writing (a copy of the relevant document was submitted to the Court).
4. The applicants also allege that on one occasion their representative was also present at the border checkpoint in Terespol, but was not allowed to meet them or be present during their questioning by the border guards.
5. According to the applicants, when talking to the border guards, they expressed fear for their safety. The first applicant stated that in the Chechen Republic he had been kidnapped, detained and tortured by people he did not know for his alleged participation in the disappearance of an officer (or collaborator) of a regional “Department for Organised Crime”. Later, the applicants and their children had gone to Poland and then to Austria. From Austria they had been deported to Russia. The first applicant had gone into hiding and the second applicant had gone back to her family village in the Chechen Republic with her children. She stated that upon her return she had been harassed, threatened and questioned about her husband. They presented documents confirming that, as torture victims, they had developed post-traumatic stress disorder. They also stated that they could not continue their stay in Belarus, as their visas had expired and in practice it was impossible for them to obtain international protection there. The border guards then summarily turned them away, back into Belarus.
6. It appears from the information submitted by the applicants and the respondent Government that on each occasion that the applicants presented themselves at the border crossing in Terespol, administrative decisions were issued to the effect of turning them away from the Polish border on the grounds that they did not have any documents authorising their entry into Poland and had not stated that they were at risk of persecution in their home country, not trying to emigrate for economic or personal reasons.
7. The applicants appealed at least once against those decisions. The head of the National Border Guard (Komendant Główny Straży Granicznej) upheld the decisions. The applicant informed the Court that they had not yet appealed against that decision to the Warsaw Regional Administrative Court (Wojewódzki Sąd Administracyjny w Warszawie).
8. On 20 June 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. At 10.14 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 4 July 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 later dates the applicants returned to the border checkpoint in Terespol, carrying with them a copy of a letter informing their representative of the Court’s decision concerning the interim measure.
11. On 27 June 2017 the Government requested the Court to lift the interim measure indicated under Rule 39 of the Rules of Court. They argued that the applicants had never requested international protection, nor given any reasons for such protection. The Government stated that, in their opinion, the applicants had abused the interim measure in order to make the Polish border guards allow them entry into Poland.
12. On 4 July 2017 the Court (the duty judge) extended the interim measure until 21 July 2017 and indicated to the Government that in the light of the submissions made to the Court, it should be considered that the applicants had tried to submit a request for international protection.
13. The applicants arrived at the border checkpoints on two more occasions. Both times they were turned away, back into Belarus.
14. On 21 July 2017 the Court (the duty judge) extended 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 Aliens Act of 13 June 2003, which grants protection to aliens within the territory of the Republic of Poland (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 to 22 of the 2003 Act. The procedure for granting protection is set out in sections 23 to 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 a wish to apply for international protection in Poland with the possibility of lodging such an application and to facilitate it, inter alia, by ensuring the assistance of a translator and by allowing – at the alien’s request or with their consent – the representatives of international or non-governmental organisations assisting refugees access. A person who lodges an application for international protection is obliged to report to the reception centre indicated by the border guards (section 30(1)(5i) 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 must decide on it within six months (section 34(1) of the 2003 Act).
18. An alien can appeal against the decision of the head of the Aliens Office to the Refugee Board (Rada do Spraw Uchodźców). He or she can appeal against the decision of the Refugee Board by lodging a complaint with the Warsaw Regional Administrative Court and, as a last resort, 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 must be suspended. A complaint to an administrative court does not have automatic suspensive effect.
20. When an alien present at a 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 (Ustawa 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 has been denied entry into Poland can appeal against the 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 Polish authorities repeatedly denied them the possibility of lodging an application for international protection, in breach of Article 3 of the Convention.
They also invoke Article 4 of Protocol No. 4 to the Convention, alleging that their situation was not reviewed individually and that they were victims of a general policy adopted by the Polish authorities 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 a decision denying someone entry into Poland is not an effective remedy as it is not examined quickly enough, has no suspensive effect and is not examined by an independent body.
Moreover, the applicants complain that the Polish authorities did not comply with the interim measure granted by the Court, in breach of Article 34 of the Convention.
QUESTIONS
1. Having regard to the 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’ claim that they would be exposed to a risk of being subjected to torture and inhuman treatment if returned to Belarus?
2. 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 Russia?
3. 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 have tried to lodge an application for international protection seventeen times and were travelling with their young children.
4. 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 checkpoints in Terespol and Czeremcha – Połowce are taken without giving consideration to the individual situation of aliens requesting international protection.
5. 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 the appeal against the decision of the Board Guard denying them entry into Poland be considered an effective domestic remedy? Reference is made to the fact that it does not have suspensive effect.
6. 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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