Communicated on 16 December 2020
Published on 11 January 2021
FIRST SECTION
Application no. 54029/17
Jama SHEROV against Poland
and 3 other applications
(see list appended)
STATEMENT OF FACTS
1. The applicant in the first case, Mr J. Sherov, was born in 1958 and lives in Warsaw. The applicant in the second case, Mr M. Saygoziev, was born in 1981 and lives in Kyiv. The applicant in the third case, Mr Z. Salimov was born in 1977 and lives in Yagotyn in the Kyiv region. The applicant in the fourth case, Mr F. Mazhitov, was born in 1983 and lives in Vienna. All applicants are nationals of Tajikistan. They are represented before the Court by Mr J. Białas, a lawyer practising in Warsaw.
The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants’ arrival in Poland
3. In the period from December 2016 to January 2017 each of the applicants travelled to the Polish‑Ukrainian border crossings in Medyka and Dołchobyczów on at least four (in the case of Mr. Sherov and Mr Salimov), ten (in the case of Mr Mazhitov) and fourteen (in the case of Mr Saygoziev) occasions. The applicants submitted that on each visit to those border crossings, they had expressly stated a wish to lodge applications for international protection on account of a risk of political persecution in Tajikistan.
4. On each occasion that the applicants presented themselves at the border crossings, administrative decisions were issued turning them away from the Polish border on the grounds that they did not have any documents authorising their entry into Poland and that they had not stated that they were at risk of persecution in their home country, but were in fact trying to emigrate for economic or personal reasons. This conclusion was based on the summary official notes from the interviews prepared by the officers of the Border Guard in Polish and not signed by the applicants.
5. On 31 January 2017 the Helsinki Foundation for Human Rights in Warsaw sent letters to the head of the Border Guard Unit in Medyka concerning the applicants’ cases. It informed him that the applicants had contacted the organisation with allegations of being denied a possibility to lodge applications for international protection. The letters stated that all of the applicants had been active members of the Islamic Revival Party of Tajikistan which had been banned by the Tajik authorities in autumn 2015. They also explained that the applicants’ colleagues belonging to this political party had been imprisoned, tortured and – in a few cases – murdered by the military and that the applicants had fled Tajikistan in fear for their security. In the case of Mr Salimov, the letter further pointed out his activities in Turkey, where he was involved in the running of an independent internet portal, Payom.net, which was critical of the Tajik authorities and in the case of Mr Mazhotov it mentioned his participation in political protests in Istanbul. With reference to Mr Saygoziev, it was also added that members of his family had been persecuted in relation to the applicant’s political activities. Moreover, the organisation noted that Mr Mazhitov’s wife had already lodged an application for international protection in Poland relying on the risk of persecution resulting from her husband’s political activities and was residing in a reception centre in Poland with their two children, who were minors.
6. The organisation also provided legal assistance to the applicants, instructing them in the procedure for lodging an application for international protection and the possibility to appeal against the decision refusing entry to Poland.
The events of 1 February 2017
7. On 1 February 2017, all four applicants presented themselves again at the Medyka border crossing. According to their statements, they expressly asked to be allowed to lodge applications for international protection on account of their past political activities and the risk of political persecution. Moreover, the lawyer from the Helsinki Foundation for Human Rights, who had previously met with the applicants in Ukraine, was also present at the border crossing on that day. He carried with him powers of attorney for Mr Saygoziev and Mr Mazhitov. According to his written statement, filed with the head of the National Border Guard and, subsequently, with the Court, he informed the officers of the border guard that those two applicants wanted to apply for international protection and that he wished to provide them with legal assistance and be present at their interviews. This was refused. However, he submitted that for a certain time he had remained in the hall in which the border control was conducted and had heard the officers of the Border Guard referring to his clients as “refugees”. Despite repeated requests he was denied access to his clients and to their case files.
8. The official notes prepared by the officers of the Border Guard who had interviewed the applicants on 1 February 2017 stated that: Mr Sherov and Mr Saygoziev had submitted that they were unhappy with the general situation in Tajikistan at the time (in particular the country’s president and the widespread corruption), that they had taken part in some political meetings and had come to Poland in order to improve their living conditions; Mr Salimov had stated that the economic situation in Tajikistan was difficult and did not allow him to find employment, so he had come to Poland in order to settle and find a job; and Mr Mazhitov had stated that his wife and child were residing in Poland, that his wife had applied for international protection in Poland and that he was unhappy with the situation in Tajikistan, concerned that its president was a dictator and wanted to enter Poland in order to find employment and improve his family’s living conditions. All four applicants were sent back to Ukraine.
The applicants’ appeals against the refusal of entry
9. The applicants submitted that they had wanted to appeal against the decisions denying them entry to Poland when still present at the Medyka border crossing, on 1 February 2017. They alleged that they had with them the appeals, in writing, prepared with the help of the lawyer from the Helsinki Foundation for Human Rights. However, the officers of the Border Guard refused to accept the documents. The applicants sent the appeals in question by post on 10 February 2017. The appeals indicated that they had wished to lodge applications for international protection and therefore they should not have been sent back to Ukraine.
10. On 31 March 2017 the applicants’ representative filed additional submissions in order to supplement the reasoning of their appeals. Those submissions contained, in particular, written statements by Mr Sherov, Mr Salimov and Mr Mazhitov explaining the reasons for which they sought international protection. In those statements the applicants explained their links to the Islamic Revival Party of Tajikistan and the nature of their political activities conducted after they had left Tajikistan as well as indicating that – if returned to Tajikistan – they would be at risk of imprisonment, torture or even death. They further explained that they did not feel safe in Ukraine due to the fact that the agents of the Tajik security service were allowed to operate there and that Ukraine was negotiating a return of refugees to Tajikistan. Mr Sherov and Mr Salimov further indicated that their families had been visited and threatened by agents of the security services.
11. On 25 April 2017 the head of the National Border Guard (Komendant Główny Straży Granicznej) upheld the decision in respect of Mr Sherov and Mr Salimov. On 27 April 2017 similar decisions were issued with respect to Mr Saygoziev and Mr Mazhitov.
12. The head of the National Border Guard stated in particular that an application for international protection might be lodged only in person by an alien presenting himself or herself at the border. Consequently, the fact that the non-governmental organisation informed the relevant unit of the Border Guard about the applicants’ situation was irrelevant for the assessment of their cases. The decisive factors should have been the fact that the applicants had not possessed a valid visa or other document allowing them to enter Poland and the content of the statements they gave to the officers of the Border Guard who had interviewed them at the border. The head of the National Border Guard reiterated that the applicants had given personal and economic reasons for their wish to enter Poland and had not declared the wish to lodge an application for international protection. He also stressed that border control was supposed to take place without the participation of other persons and that its character precluded the possibility of the presence of a lawyer representing the applicants. In addition to that, the head of the National Border Guard indicated that this system was supposed to prevent illegal migration to Poland and that the sole fact that the foreigners present at the border instructed each other to use a key word “asylum” did not oblige the border guards to consider them asylum seekers. If, on the basis of the overall statements by the foreigners, it was established that they gave economic and personal reasons for their arrival in Poland, there was no basis for receiving the application for international protection. With reference to Mr Mazhitov, the head of the National Border Guard further stated that the fact that the applicant’s wife was residing in Poland and asked the authorities to consider her husband’s application for international protection was irrelevant, as the domestic law did not provide for the procedure of family reunion is such cases.
13. All applicants lodged appeals with the Warsaw Regional Administrative Court (Wojewódzki Sąd Administracyjny w Warszawie).
14. On 17 October 2017 the Warsaw Regional Administrative Court dismissed the appeal lodged by Mr Saygoziev. The court held that the proceedings in the applicant’s case had been conducted by the Border Guard according to the law and that no evidence suggested that the applicant – when present at the border – had expressed the wish to lodge an application for international protection. The Warsaw Regional Administrative Court relied in this respect on the content of the official note prepared by the officer of the Border Guard during border control. It stated that the drafting of such a note proved that the border guards had acted with due diligence and that – in the light of the applicant’s statements as recorded in those notes – there were no reasons to conduct further evidentiary proceedings (in particular a more detailed interview with the applicant) as such activities would only have needlessly prolonged the proceedings.
15. On 27 October 2017 the Warsaw Regional Administrative Court quashed the decisions of the head of the National Border Guard and of the head of the Medyka Unit of the Border Guard concerning the refusal of entry issued in the case of Mr. Salimov. On 9 November 2017 the same court quashed the decisions issued in the case of Mr Sherov and, on 21 November 2017, in the case of Mr Mazhitov. The reasoning of all three judgments was similar. The Warsaw Regional Administrative Court held that – when present at the Polish-Ukrainian border – the applicants should have been interviewed by officers of the Border Guard and that their interviews should have been recorded in the form of detailed minutes signed not only by the officers but also by the applicants. In the court’s opinion the summary official notes that had been signed only by the border guards were insufficient for establishing whether the applicants had indeed expressed the wish to lodge applications for international protection. In the judgments concerning Mr Sherov and Mr Mazhitov the domestic court stressed that the full interview, recorded in the form of detailed minutes, had to be conducted, in particular in the light of the fact that it was unclear whether the applicants fulfilled the conditions of refusal of entry to Poland. The court noted in particular that – according to the official notes – the applicants had declared their dissatisfaction with the political situation in their country of origin and that the non-governmental organisation had informed the authorities that the applicants wished to lodge an application for international protection. In the case of Mr Mazhitov it further underlined that the officers of the border guard had been aware of the fact that his family had already lodged an application for international protection in Poland and, therefore, might have suspected that the applicant’s reasons to enter Poland were not merely economic. In the domestic court’s view, all of those circumstances necessitated more thorough evidentiary proceedings.
16. The applicants’ representative lodged a cassation appeal against the judgment of 17 October 2017. The head of the National Border Guard lodged cassation appeals against the judgments of 27 October and 9 November 2017. The judgment of 21 November 2017 was not appealed against and became final.
17. On 20 September 2018 the Supreme Administrative Court (Naczelny Sąd Administracyjny) quashed the judgment of 17 October 2017 and the decisions of the head of the National Border Guard and of the head of the Medyka Unit of the Border Guard issued in the case of Mr Saygoziev. It also discontinued the proceedings concerning the refusal of entry into Poland. On the same date it dismissed the cassation appeals lodged by the head of the National Border Guard and upheld the judgments of 27 October and 9 November 2017.
18. The Supreme Administrative Court indicated that the official notes prepared by the officers of the Border Guard could not have been considered sufficient evidence of the applicants’ intentions expressed during border control, especially in the light of numerous reports concerning irregularities in the way in which such control was conducted at the Eastern Polish border as the time. It indicated that the official note could have provided additional evidence of the events that had taken place during the border control but could not replace the full interview with the applicants and the minutes thereof. The Supreme Administrative Court noted that it was possible that some aliens tried to abuse the asylum procedure in order to enter Poland by using the words “asylum: or “a refugee” without fully comprehending their meaning. However, it stressed that this made it even more evident that their cases had to be examined more thoroughly and the full documentation of their interviews (reflecting the content of the questions asked and all the subjects raised by an alien) should have been prepared by the officers interviewing them.
19. In the case of Mr Saygoziev the Supreme Administrative Court also noted that the letter sent by a non-governmental organisation to the head of the relevant unit of the Border Guard could not replace the application for international protection that had to be lodged by the applicant himself. However, the letter, as well as the fact that the applicant had attempted to cross the Polish border multiple times, should have alerted the border guards to the fact that his situation had not been evident and led to an extended interview. It also noted that, as a matter of principle, foreigners had a right to have a representative present at their interview, provided that the representative had been appointed and was present at the border crossing. The court further decided to discontinue the proceedings concerning the refusal of entry to Poland to Mr Saygoziev due to the fact that the applicant had no longer been present at the border.
20. On 15 January 2019 the head of the Medyka Unit of the Border Guard discontinued proceedings concerning refusal of entry into Poland to Mr Sherov and Mr. Salimov due to that fact that the applicants were no longer present at the Polish-Ukrainian border crossing in Medyka.
Further whereabouts of Mr Sherov
21. On an unspecified date Mr Sherov lodged an application for international protection in Ukraine. On 19 September 2017 he was informed that his application had been refused. On 11 July 2018 the Kiev Regional Administrative Court quashed this decision and ordered that the case be re‑examined. The judgment was upheld by the Sixth Administrative Court of Appeal on 20 November 2018. It seems that the proceedings in the applicant’s case are pending. He also alleged that, during his stay in Ukraine, he had been contacted by the Tajik security service agents, who had tried to convince him to return to Tajikistan.
22. On 8 February 2019 the applicant, travelling with his family, presented himself again at the border crossing in Medyka and lodged an application for international protection. The officers of the Border Guard received his application and forwarded it for review by the head of the Aliens Office (Szef Urzędu do Spraw Cudzoziemców). Those proceedings are currently pending. The applicant is residing in Poland.
Further whereabouts of Mr Saygoziev
23. On 8 February 2018 Mr Saygoziev lodged an application for international protection in Ukraine. On 12 November 2018 his application was refused. His appeal against this decision is pending before the Ukrainian authorities.
24. On 9 November 2018 the applicant attempted to cross the border between Ukraine and Hungary. He was arrested and detained until 16 January 2019.
25. The applicant also submitted that his parents, brother, wife and son, who resided in Tajikistan, had been subject to further persecution related to his political activities. On 31 January 2017 the applicant’s wife and son tried to leave Tajikistan but were stopped at the airport and they remain under house arrest.
Further whereabouts of Mr Salimov
26. On an unspecified date Mr Salimov lodged an application for international protection in Ukraine. On 31 May 2018 he was informed that his application was refused. His appeal against this decision is pending before the Ukrainian authorities.
Further whereabouts of Mr Mazhitov
27. On 8 February 2018 Mr Mazhitov lodged an application for international protection in Ukraine. The proceedings seem to be pending.
28. On 15 August 2018 the applicant attempted to cross the border between Ukraine and Poland illegally. He was apprehended by the officers of the Border Guard and, on 16 August 2018, expelled to Ukraine. He alleged that during his arrest he had been beaten by an officer of the Border Guard and had two ribs broken, that he had been denied medical assistance and detained in inadequate conditions. He also submitted that he had been refused the possibility to contact an attorney and to lodge an application for international protection.
29. In November 2018 the applicant lodged an application for international protection in Austria. On 2 May 2019 he was granted international protection due to the risk of political persecution in Tajikistan. He is currently residing in Austria with his wife and children.
Relevant domestic law and practice
30. The relevant domestic law and practice concerning granting international protection to aliens and the refusal-of-entry procedure are set out in the Court’s judgment in the case of M.K. and Others v. Poland (nos. 40503/17, 42902/17 and 43643/17, §§ 67-77, 23 July 2020).
COMPLAINTS
31. The applicants complain under Article 4 of Protocol No. 4 to the Convention, alleging that the officers of the Border Guard disregarded their statements concerning their wish to apply for international protection and returned them to Ukraine without considering their applications.
32. Under Article 3 of the Convention they argue that they were returned to Ukraine despite the fact that the asylum procedure there was inadequate and did not provide sufficient protection for asylum seekers and that the economic situation of asylum seekers was extremely difficult as they had no possibility to find employment or receive any social benefits. They also submit that the repeated refusals to accept their applications for international protection for review amounted to degrading treatment.
33. Moreover, under Article 13 of the Convention taken in conjunction with Article 3 of the Convention and Article 4 of Protocol No. 4, the applicants complain that they were deprived of an effective remedy against the decisions refusing them entry into Poland as those decisions were executed immediately and appeal against them did not have a suspensive effect.
34. Moreover Mr Mazhitov complains under Article 8 of the Convention that he was deprived of the possibility to join his wife and two minor children who had lodged applications for international protection in Poland.
QUESTIONS TO THE PARTIES
1. Having regard to the procedural protection from torture and inhuman or degrading treatment, has there been a violation of Article 3 of the Convention on account of the refusal to review the applicants’ applications for international protection? 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 Ukraine?
2. 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 were taken without giving consideration to the individual situation of aliens requesting international protection (see M.K. and Others v. Poland, nos. 40503/17, 42902/17 and 43643/17, §§ 204-211, 23 July 2020).
3. 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 Border Guard refusing the applicants entry into Poland be considered an effective domestic remedy? Reference is made to the fact that it does not have suspensive effect (see M.K. and Others v. Poland, cited above, § 220).
4. In case no. 54255/17, has there been a violation of the applicant’s right to respect for his family life, contrary to Article 8 of the Convention?
APPENDIX
No
Application no.
Case name
Lodged on
Applicant
Represented by
54029/17
Sherov v. Poland
20/07/2017
Jama SHEROV
Jacek BIAŁAS
54117/17
Saygoziev v. Poland
20/07/2017
Mahmadsobir SAYGOZIEV
Jacek BIAŁAS
54128/17
Salimov v. Poland
20/07/2017
Ziyoviddin SALIMOV
Jacek BIAŁAS
54255/17
Mazhitov v. Poland
20/07/2017
Fatkhudin MAZHITOV
Jacek BIAŁAS
Full & Egal Universal Law Academy