Communicated on 8 January 2018
FIRST SECTION
Application no. 79752/16
M.Z. and Others
against Poland
lodged on 25 April 2017
STATEMENT OF FACTS
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Placement in the Guarded Centre for Aliens
The applicants, M.Z. (“the first applicant”) and T.M. (“the second applicant”), a married couple with two children born in 2014 and in 2015, are Tajikistani nationals. In 2016, after fourteen previous unsuccessful attempts to lodge an application for refugee status, they applied for refugee status at the Polish‑Ukrainian border post.
On 24 October 2016 the District Court (Sąd Rejonowy) ‑ deeming that there was a high probability that the applicants might try to flee – delivered decisions placing the applicants in the Guarded Centre for Aliens (Strzeżony Ośrodek dla Cudzoziemców– hereinafter “the Centre”) for a period of 60 days (from 23 October to 22 December 2016) under Section 87(1)(2) of the Act of 13 June 2003 (see the “Relevant domestic law” section below). The applicants appealed.
On 31 October 2016 a psychologist from the Centre issued opinion no. 3/2016, which indicated that the first applicant did not have post-traumatic stress disorder and did not require psychiatric evaluation. The expert found, however, that she did need psychological treatment. It was also stated that detention in the closed facility was impeding the realisation of the basic developmental needs of the applicants’ children and was a stress factor that disturbed their sense of security. Having taken into account the children’s needs and their best interests, the expert recommended the placement of the family in an open facility.
On 1 November 2016 the one of the children was admitted to hospital, where she remained until 4 November 2016.
Following an appeal lodged by the applicants, on 18 November 2016 the Regional Court (Sąd Okręgowy) upheld the decision of 24 October 2016 in so far as it concerned the placement of the second applicant in the Centre.
On 23 November 2016 the Regional Court upheld the decision of 24 October 2016 in so far as it concerned the placement of the first applicant and her children in the Centre. The court held that the first applicant’s situation did not allow for other measures less radical than that of detention.
On 13 December 2016 the first applicant was admitted for the first time to the psychiatric hospital as an outpatient because of adjustment and depressive disorders. The hospital information record indicated that the applicant was breastfeeding and that it was recommended that she undergo pharmacological treatment and be placed in an open facility.
On 22 December 2016 the District Court issued decisions extending the placement in the Centre of the first applicant, the second applicant, and their children for an additional 120 days (from 22 December 2016 until 20 April 2017).
On 23 December 2016 a psychologist from the Centre issued a second opinion (no. 12/2016) stating that the first applicant could have been a victim of violence and that her emotional state had worsened indicating an adjustment disorder. The psychologist recommended psychological or pharmaceutical treatment and that additional care be afforded to her family in order that the children’s needs be met.
On 18 January 2017 the Regional Court upheld the decision of the District Court of 22 December 2016 in so far as it concerned the first applicant and her children. It stated that it was possible that detention might be a difficult experience for the children (causing discomfort and distraction) but that it had not posed a danger to their life and health.
On 23 January 2017 the Regional Court upheld the decision of the District Court of 22 December 2016 concerning the second applicant.
On 10 February 2017 the first applicant was admitted for the second time to the psychiatric hospital as an outpatient. The hospital information record of 10 February 2017 indicated that she was suffering from depressive and adjustment disorders caused by her lengthy stay in the guarded centre and that it was recommended that she be placed in an open facility.
On 13 March 2017 the first applicant was admitted to the hospital again.
On 14 April 2017 the District Court issued a decision extending the placement of the first applicant and her children in the Centre for a further three months –until 12 July 2017. The court held that continued detention in the centre would not cause any danger to the first applicant’s health and that her request of 18 November 2016 to be released from the Centre on the grounds of the children’s health problems (see below under 2) had been already refused by the Chief of the Border Guards (Komendant Oddziału Straży Granicznej) on 12 December 2016. The applicant appealed, alleging that the extension of her placement in the guarded centre could threaten the health of her and her children and that the court had not taken into account the fact that detention was harmful to minor children. The applicant relied on the fact that she had been admitted to psychiatric hospital three times on account of adjustment disorders and depression and that psychiatrists had recommended that she should be detained in an open facility. She also relied on the psychologist’s opinion of 31 October 2016 in part concerning her children.
On 14 April 2017 the District Court issued a decision extending the placement of the second applicant in the Centre for a period of three further months –until 12 July 2017. On 19 May 2017 the Regional Court upheld that decision.
Following an appeal by the first applicant, on 1 June 2017 the Regional Court upheld the decision of 14 April 2017. In order to rectify certain shortcomings in the proceedings before the District Court, the Regional Court allowed the psychologist’s opinion according to which the state of health of the first applicant or the members of her family did not “constitute a clear obstacle for isolation in the guarded centre and in particular neither would their life or health be endangered”; in the case of the children the Regional Court relied mostly on a psychological opinion of 8 December 2016, which stated that the children had suffered from no deficiency shortages as a result of their placement in a guarded centre for aliens.
On 12 July 2017 the District Court issued a decision refusing a request lodged by the Chief of the Border Guards for the extension of placement of the first applicant and her children in the Centre for a further three months. Referring to the psychiatric opinion of 11 July 2017 the court found that the extension of the first applicant’s placement in the guarded centre could constitute a direct threat to her life and health in view of her recurring suicidal thoughts. On the same day the District Court decided not to extend the placement of the second applicant in the guarded centre in the light of his wife’s state of health and in the best interests of his family and children.
2. Applications for release from the Guarded Centre for Aliens
On 18 November 2016 the first applicant lodged a request with the Chief of the Board Guards for her release from the Centre, alleging that her children’s detention in the guarded centre was endangering their health. On the same day the second applicant lodged a request for his own release.
On 12 December 2016 the Chief of the Board Guards issued decisions refusing the applicants’ requests. He relied on psychological opinion of 8 December 2016, which stated that the children had suffered no development deficiency (deficyt rozwojowy) as a result of their detention in the guarded centre and that their development had been normal for their age. The applicants appealed.
On 3 January 2017 the District Court upheld the above-mentioned decisions.
3. Proceedings for refugee status
On 28 December 2016 the Head of the Aliens Office (Szef Urzędu do Spraw Cudzoziemców) issued a decision by which it refused to grant the applicants refugee status.
On 11 April 2017 the Refugees Council (Rada do Spraw Uchodźców) upheld the decision of the Head of the Aliens Office of 28 December 2016. On 21 April 2017 the applicants appealed to the Warsaw Regional Administrative Court (Wojewódzki Sąd Administracyjny), and requested that the execution of the decision of 11 April 2017 be suspended. It would appear that the proceedings are pending.
4. Proceedings for expulsion
On 27 April 2017 the Chief of the Border Guards issued a decision obliging the first applicant and her children to return to their home country and banning them from re-entering the territory of Poland and other Schengen countries for a year. The applicant appealed on 5 May 2017. It would appear that the proceedings are pending.
B. Relevant domestic law
The procedure for the granting of refugee status and tolerated stays to aliens and for their expulsion is regulated by the Act of 13 June 2003 on granting protection to aliens within the territory of the Republic of Poland (Ustawa o udzielaniu cudzoziemcom ochrony na terytorium Rzeczypospolitej Polskiej). The relevant provisions are Sections 24§2; 33§4; 40§2(2); 62§2; 67§1; 87; 88(a); 88(b); 89 and 89 (b) of this act.
Matters related to the administrative detention of aliens, their placement in and release from guarded centres, the living conditions in such facilities, including the admission of families with minor children and the provision of healthcare and education are currently regulated by the Aliens Act of 12 December 2013 (Ustawa o cudzoziemcach), which entered into force on 1 May 2014, replacing the Aliens Act of 13 June 2003. The relevant provisions are Sections 398§1(2) and §2(1); 401; 403; 406; 407; 414§3; 416§1(2) and §2; 417 and 426 of the 2013 Act.
Living conditions in guarded centres for aliens are further regulated by the Minister of Internal Affairs’ Ordinance of 24 April 2015 on guarded centres and detention centres for aliens (Rozporządzenie Ministra Spraw Wewnętrznych w sprawie strzeżonych ośrodków i aresztów dla cudzoziemców).
COMPLAINTS
1. The first applicant complains under Article 3 that her detention amounted to inhuman and degrading treatment as her situation was not taken into account by the authorities – that is to say they disregarded the fact that she had been a victim of violence, her mental condition had worsened during detention and she suffered from depressive and adjustment disorders.
2. The applicants complain under Article 5 § 1 that: (1) their detention was arbitrary and contrary to the domestic law, which did not allow for the detention of victims of violence and while there were no pending proceedings in respect of their deportation and that (2) disregarding the psychologist’s opinion of 31 October 2016, the domestic authorities did not consider the situation of the children and the requirement under domestic and international law that they be protected, but instead allowed their detention for the maximum period of time.
3. The applicants complains under Article 5 § 4 that they were not allowed to participate in the court’s hearing concerning their appeals against the placement and prolongation of their placement in the Guarded Centre for Aliens.
4. The applicants complain under Article 8 that the length of their detention infringed their family life.
QUESTIONS TO THE PARTIES
1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?
2. Did the detention of the first applicant for a period of eight consecutive months amount to inhuman or degrading treatment within the meaning of Article 3 of the Convention?
3. Was the deprivation of liberty of the applicants compatible with Article 5 § 1 of the Convention?
4. Did the applicants have at their disposal an effective procedure by which they could challenge the lawfulness of their detention as required by Article 5 § 4 of the Convention? Reference is made to the fact that the applicants did not participate in the court hearing concerning their appeal against the decision placing them and prolonging their placement in the Guarded Centre for Aliens.
5. Does the applicants’ detention constitute an infringement of their right to respect for their private and family life, within the meaning of Article 8 § 1 of the Convention? If so, was the interference with the exercise of that right prescribed by law and necessary, within the meaning of Article 8 § 2?
Full & Egal Universal Law Academy