Communicated on 13 July 2017
FIRST SECTION
Application no 40503/17
M.K.
against Poland
lodged on 8 June 2017
STATEMENT OF FACTS
1. The applicant, Mr M.K., is a Russian national, who currently resides in Belarus. The President has granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4). He is represented before the Court by Ms S. Gregorczyk-Abram, Ms M.J. Radziejowska and Mr Jacek Białas, lawyers practising in Warsaw.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. In the period from July 2016 to 8 June 2017 the applicant travelled to the Polish-Belarusian border crossing at Terespol on twenty-eight occasions. He submitted that each time he expressly stated a wish to lodge an application for international protection which, at least on certain occasions, he had on him in writing (a copy of this document was submitted to the Court).
4. The applicant also alleged that on one occasion his representative was also present at the border checkpoint in Terespol, but was not allowed to meet with him and be present at his questioning by the border guards.
5. According to the applicant, when talking to the border guards he expressed fears for his safety. He stated that he came from Chechnya and that before leaving this region he had been detained numerous times without legal basis, detained and tortured by police officers and that the police had tried to find and arrest him. He presented documents confirming that as a torture victim he had developed post-traumatic stress disorder. He also stated that he could not continue his stay in Belarus, as his visa had expired and as in practice it would be impossible for him to obtain international protection there. The border guards then summarily turned him away to return to Belarus.
6. It appears from the information submitted by the applicant and the respondent Government that on every occasions when the applicant presented himself at the border crossing in Terespol administrative decisions were issued to the effect of turning the applicant away from the Polish border on the grounds that he did not have any documents authorising his entry to Poland and that he had not stated that he had been at risk of persecution in his home country but was in fact trying to emigrate for economic or personal reasons.
7. The applicant appealed against at least one of those decisions. The head of the National Border Guard (Komendant Główny Straży Granicznej) upheld the decision. The applicant has not yet informed the Court whether he appealed against this decision to the Warsaw Regional Administrative Court (Wojewódzki Sąd Administracyjny w Warszawie).
8. On 8 June 2017, when the applicant presented himself at the border crossing in Terespol, his representative submitted a request under Rule 39 of the Rules of Court asking the Court to prevent the applicant from being removed to Belarus.
9. On 8 June 2017, at 10.52 a.m. the Court (the duty judge) decided to apply Rule 39 of the Rules of Court, indicating to the Government that the applicant should not be removed to Belarus until 23 June 2017. The Government were informed of the interim measure before the planned time of expulsion. The applicant was returned to Belarus at 11.25 a.m.
10. On a latter date the applicant returned to the border checkpoint in Terespol, carrying with him the copy of a letter informing his representative of the Court’s decision concerning the interim measure. The applicant submits that he was searched by border guards and questioned concerning the persons who had helped him, those who had secured him legal representation and how this representation was to be paid for. He also alleges that his copy of the letter from the Court was confiscated from him.
11. On the same date the Government requested that the Court lift the interim measure indicated under Rule 39 of Rules of Court. The Government argued that the applicant had never requested international protection, nor had he given any reasons for such protection. They also maintained that as the applicant had not been admitted to Poland by the border guards, he had not been legally in Poland and therefore could not be removed. The Government stated that in their opinion the applicant had abused the interim measure in order to extort the Polish Border-Guard officers with a view to getting permission to enter Poland.
12. On 14 June 2017 the Court (the duty judge) decided to prolong the interim measure until further notice and to indicate to the Government that in the light of the submissions made to the Court (especially the applicant’s written application and his submissions, the copies of which had been forwarded to the Government), the Court considered that the applicant had submitted a request for international protection. The Court clarified that the indication, made to the Government on 8 June 2017, that the applicant should not be removed to Belarus, should be understood in such a way that – when he presented himself at a Polish border checkpoint – the applicant’s application 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 applicant should not be sent back to Belarus.
13. The applicant arrived at the border checkpoint in Terespol on two more occasions. Both times he was turned away.
B. Relevant domestic law and practice
14. 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”).
15. 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.
16. 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).
17. 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).
18. 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 an automatic suspensive effect.
19. 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 (Ustawa o cudzoziemcach – “the 2013 Act”).
20. 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 a suspensive effect.
COMPLAINTS
The applicant complains that the fact that the Polish authorities repeatedly denied him the possibility to lodge an application for international protection was in breach of Article 3 of the Convention.
He also invokes Article 4 of Protocol No. 4 to the Convention, alleging that his situation was not reviewed individually and that he is a victim 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 applicant states that an appeal against the decision denying him 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 applicant complains 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
1. Having regard to procedural protection from torture and inhuman or degrading treatment, was the refusal to review the applicant’s 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 his return, did the Polish authorities consider the applicant’s claim that he would be exposed to a risk of being subjected to torture and inhuman treatment if returned to Belarus?
2. In the light of the applicant’s claims and the documents which have been submitted, would he 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 applicant by the Polish Border Guard amount to degrading or inhuman treatment in breach of Article 3 of the Convention? Reference is made to the applicant’s statement that he has tried to lodge an application for international protection over thirty times.
4. Was the applicant, an alien 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 applicant’s allegation that the decisions concerning the denial of entry at the border checkpoint in Terespol are taken without giving consideration to the individual situation of the aliens requesting international protection.
5. Did the applicant have at his disposal an effective domestic remedy for his 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 Border Guard denying the applicant entry to 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 applicant’s right of application, ensured by Article 34 of the Convention?
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