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Council of Europe
Country of Decision : Council of Europe
Court Name : CoE: European Court of Human Rights [ECHR]
Date of decision : 08/07/2021
Type : Judgment
ECLI :
Case Number/Citation/ Document Symbol : No 51246/17

D.A. and others vs Poland

The applicants, D.A., M.A. and S.K., are Syrian nationals who reside in Belarus. The case concerns their alleged lack of access to asylum procedures and pushbacks at the Polish-Belarusian border. Relying on Article 3 (prohibition of torture) and Article 4 of Protocol No. 4 (prohibition of collective expulsion), the applicants allege that the Polish authorities did not allow them to lodge applications for international protection, that their situation was not assessed individually and that their situation was part of a general policy in Poland to reduce asylum applications. The applicants complained under Article 13 (right to an effective remedy) about the fact that an appeal against a decision denying entry into Poland did not constitute an effective remedy as it did not have suspensive effect. Under Article 34 (individual applications) they complained that they were returned to Belarus by the Polish authorities, despite the ECtHR’s interim measure indicating that they should not be removed.

The court found a violation of Article 3 by the Polish authorities. It noted that the applicants submitted a letter to the Polish authorities, indicating their wish to apply for international protection, which included a general account of the reasons of persecution. Thus, the authorities were aware of the applications made and of the documents substantiating their claims. The applicants also argued against Belarus being considered a safe third country for them, as a return to Belarus would put them at risk of chain-refoulement to Syria. The court also noted that the applicant did not benefit from judicial review of the authorities' decisions to refuse entry.

The court also found a violation of Article 4 Protocol 4. The court cited M.K. and Others v. Poland in which it had already found a violation of Article 4 Protocol 4 due to decisions refusing entry at the Polish-Belarusian border and the return of applicants to Belarus. In addition, there was also a wider policy ofrefusing entry to foreigners croming from Belarus and although they had been interviewed by border officers, their statements about a request for international protection had been ignored. Furthermore, the decisions on refusal of entry given to each applicant were not sufficiently individualised.

Regarding the right to an effective remedy, the court found a violation of Article 13 in conjuction with Article 3 of the Convention and Article 4 Protocol 4 noting that an appeal against a refusal of entry and a further appeal to the administrative courts were not effective remedies within the meaning of the Convention because they did not have automatic suspensive effect.

Lastly, the court held that Poland has failed to discharge its obligations under Article 34 of the Convention as it did not comply with the interim measure ordered by the court and removed the applicants to Belarus.

Access to procedures; Return/Removal/Deportation; Safe Country concept/Safe Country of Origin/ Safe third country;

European Convention on Human Rights;

EASO IDS

Council of Europe,CoE: European Court of Human Rights [ECHR], D.A. and others vs Poland, 08/07/2021
The ECtHR found a violation of the prohibition of collective expulsions on account of summary returns from Poland to Belarus

https://caselaw.easo.europa.eu/pages/viewcaselaw.aspx?CaseLawID=1871

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