ECtHR, Bilalova and others v. Poland, Application no. 23685/14, 26 March 2020

Facts:

The applicants, Russian nationals of Chechen origin, were a family with five underage children. In 2013, they lodged an application for international protection in Poland but left for Germany before the application was decided. The German authorities transferred the applicants back to Poland under the Dublin Regulation II.

Upon return, a Polish court ordered their detention for 60 days considering that their irregular travel to Germany indicated a risk of absconding. They were placed in a detention facility in Kętrzyn and the detention was extended for another 60 days following the rejection of their asylum application and the issuing of a removal order. Their application for refugee status and all appeals were rejected and an expulsion order was subsequently issued. The applicants complained that their detention was, inter alia, contrary to Articles 3 and 5 (1) (f) ECHR.

Decision & reasoning:

Article 3

The Court recalled its established jurisprudence on the level of severity that Article 3 requires, as well as the consideration of the nature and context of treatment in its assessment. In the present case, the claim of a vulnerable psychological state was first made during the appeal against the decision extending the detention. Even if the evidence does not indicate a thorough examination of the claim by the reviewing court, it cannot be accepted that the submitted documents prove that the applicant’s health state precluded the detention measure. Moreover, the applicant did not contest the government’s argument that they were provided with medical care at the centre and did not raise any claims regarding the quality of that care. The complaint regarding the violation of Article 3 was found to be manifestly unfounded.

Article 5

On the Government’s objection regarding admissibility, the Court agreed that the complaint regarding the initial placement in detention was inadmissible as the applicant had not exhausted domestic remedies that were available and were communicated at the time of the hearing. Regarding the extension of the detention measure, however, the complaint is inadmissible as the applicants did appeal against the decisions without success; the Government’s suggestion of an existing compensatory remedy cannot be considered as an effective remedy that would substantially challenge the legality of the measure.

Moving on to the assessment of the decision to extend the detention, the Court referred to its established jurisprudence on the lawfulness of detention measures, which should be imposed in accordance with the exceptions of Article 5 ECHR and should not be arbitrary. Special consideration is reserved for the duration and the conditions of the detention, the migration-related aspects of the measures, as well as the particular situation of vulnerable individuals. In the instant case, the children had already been in detention for two months when the decision to extend the detention was taken. Despite the absence of any claims regarding adverse conditions at the detention centre, that facility was in any case a place of confinement similar to penitentiary institutions. The Court has already found the detention of children in such facilities to be unlawful even for period significantly shorter than the one in the present case.

According to the Court’s established case law, detention of children in such facilities is, in principle, permitted for the shortest amount of time and in appropriate conditions, only after the Government has correctly concluded that there are no other less coercive measures. There is no evidence to suggest that the Polish authorities conducted this assessment, especially in light of the delays in the asylum procedure. This conduct violated Article 5 ECHR.

Outcome:

Complaint under Article 3 is manifestly unfounded;

Complaint under Article 5 regarding the initial decisions imposing detention is manifestly unfounded;

Violation of Article 5 regarding the decision to extend the detention.