ECtHR - Bistieva and Others v. Poland, Application No. 75157/14, Judgement of 10 April 2018

Facts:

The case concerned the detention for almost six months of a Russian national and her three children at the Kętrzyn guarded centre for foreigners. The applicant, Ms Bistieva, arrived in Poland with her husband and the first two children in 2012.

After having their asylum application rejected, the family fled to Germany, where Ms Bistieva had a third child. The German authorities sent her and the children back to Poland in January 2014 when they were detained.

Ms Bistieva appealed the decision to detain her and her family arguing that her youngest child was not an illegal alien and, as such, he could not be the subject of administrative detention. She also argued that her own and her other children’s placement in the guarded centre was unjustified. She also applied for refugee status for herself and her three children.

The Polish Courts held that the decision to place Ms Bistieva in administrative detention was justified because she was an illegal alien in Poland and she had crossed the German border illegally. The fact that she had minor children could not be considered as a sufficient reason for quashing the impugned decision.

They were released in June 2014, eventually moving back to Germany.

The applicants complained that their detention violated their rights under Articles 5 and 8 ECHR.

Decision & reasoning:

With regard to the applicants’ complaints under Article 8 ECHR, the Court found that the applicant’s detention interfered with the effective exercise of their family life but that this interference could be initially regarded as justified as the family presented a clear risk of absconding.

However, reiterating the need to take account of the other relevant international law instruments (in particular the Convention on the Rights of the Child) as well as the broad consensus in international law of the paramount importance accorded to the principle of the best interests of the child, the ECtHR found that the Polish authorities had failed to assess the impact of the detention on the family and the children in particular.

The Polish authorities had not fulfilled their obligation to consider the family’s detention as a measure of last resort and had not considered alternative measures. The observance of the child’s best interests could not be confined to keeping the family together and included taking all the necessary steps to limit, as far as possible, the detention of families accompanied by children. It also ruled that the detention of minors called for greater speed and diligence on the part of the authorities. Therefore, the Court concluded that, even in the light of the risk that the family might abscond, the authorities failed to provide sufficient reasons to justify the detention for nearly six months, which constituted a violation of Article 8 ECHR.

The ECtHR declared the applicants’ complaints under Article 5 inadmissible due to failure to exhaust the domestic remedies available to them to challenge the lawfulness of their detention. The Court dismissed the applicant’s claim that the remedy in question could not be considered effective in the absence of any examples of domestic court practice, since this absence could be justified by the fact that the legislative provision providing for that remedy (Section 407 of the 2013 Foreigners Act) had been established rather recently. The Court did not find any other objective obstacles to the applicant’s access to that remedy.

Outcome:

The Court unanimously;

1. Declares the complaint under Article 8 of the Convention admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 8 of the Convention.

 3. Holds

(a) that the respondent State is to pay the applicants jointly, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 12,000 (twelve thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 10 April 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Other sources:

Kennedy v. the United Kingdom, no. 26839/05, 18 May 2010

Melnītis v. Latvia, no. 30779/05, 28 February 2012

Betteridge v. the United Kingdom, no. 1497/10, 29 January 2013

Ławniczak v. Poland (dec.), no. 22857/07, §§ 41-44, 23 October 2012

Dagirat Dzhabrailova v. Poland (friendly settlement), no. 78244/11, 9 September 2014

Supreme Court’s judgment of 17 March 2015, no. V KK 417/14

Szczecin Court of Appeal’s judgment of 5 May 2016, no. II Aka 49/16

Supreme Court’s decision of 12 April 2010; V KK 308/09

Lublin Court of Appeal decision on applicability issued on 4 June 2014 , no. II AKz 277/1