CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 23 juillet 2020

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AND OTHERS v. POLAND (Applications nos. 40503/17, 42902/17 and 43643/17)   JUDGMENT   Art 3 • Expulsion • Refusal of border guards to receive asylum applications and summary removal to a third country, with a risk of refoulement to and ill-treatment in the country of origin • Systemic practice of misrepresenting statements given by asylum-seekers • Lack of a proper investigation into the reasons for which the applicants sought entry • State’s obligation to ensure the applicants’ safety, in particular by allowing them to remain within its jurisdiction, pending examination of their application for international protection Art 4 P4 • Collective expulsion of aliens • Wider State policy of refusing entry to foreigners coming from Belarus • Applicants’ attempt to cross a border in a legal manner, using an official checkpoint and subjecting themselves to border checks Art 13 (+ Art 3 and Art 4 P4) • Lack of effective remedy with suspensive effect Art 34 • Hinder the exercise of the right of application • Non-compliance or delayed compliance with interim measures under Rule 39   STRASBOURG 23 July 2020   FINAL   14/12/2020     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of M.K. and Others v. Poland, The European Court of Human Rights (First Section), sitting as a   Chamber composed of:   Ksenija Turković, President ,   Krzysztof Wojtyczek,   Aleš Pejchal,   Armen Harutyunyan,   Pere Pastor Vilanova,   Tim Eicke,   Raffaele Sabato, judges , and Renata Degener, Deputy Section Registrar , Having deliberated in private on 4 June 2019, 15 April and 9 June 2020, Delivers the following judgment, which was adopted on that last date: PROCEDURE 1.     The case originated in three applications (nos.   40503/17, 42902/17 and 43643/17) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by thirteen Russian nationals comprising (i) Mr M.K., (ii) Mr M.A., Mrs M.A. and five minor children, and (iii) Mr M.K., Mrs Z.T. and three minor children (“the applicants”), on 8   June, 16 June and 20 June 2017 respectively. The President of the Section acceded to the applicants’ request for their names not to be disclosed (Rule   47 § 4 of the Rules of Court). 2.     The applicant in case no. 40503/17 was represented by Ms   S.   Gregorczyk-Abram, Ms M.J. Radziejowska and Mr J. Białas, lawyers practising in Warsaw. The applicants in case no. 42902/17 were represented by Mr M. Matsiushchankau, a Belarusian human-rights defender who was granted leave to represent the applicants pursuant to Rule 36 § 4 (a) of the Rules of Court. The applicants in case no. 43643/17 were represented by Ms   M.K. Dębska ‑ Koniecek, a lawyer practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Ms   J.   Chrzanowska, and subsequently by   Mr J. Sobczak, of the Ministry of Foreign Affairs. 3.     On 8, 16 and 20 June 2017 respectively, the Court (the   duty   judge) indicated to the Government interim measures under Rule 39 of the Rules of Court, namely not to return the applicants to Belarus (see paragraphs 16, 33 and 59 below). The interim measure indicated in case no. 42902/17 was lifted on 29 August 2018 (see paragraph 51 below), the interim measures indicated in cases nos. 40503/17 and 43643/17 remain in force. 4.     The applicants alleged that the Polish authorities had repeatedly denied them the possibility of lodging an application for international protection, in breach of Article 3 of the Convention. They also invoked Article 4 of Protocol No. 4 to the Convention, alleging that their situation had not been reviewed individually and that they were victims of a general policy that was followed by the Polish authorities with the aim of reducing the number of asylum applications registered in Poland. The applicants stated that, under Article 13 in conjunction with Article 3 of the Convention and Article 4 of Protocol No. 4 to the Convention, lodging an appeal against a decision denying someone entry into Poland did not constitute an effective remedy as it would not be examined quickly enough, would have no suspensive effect and would not be examined by an independent body. Moreover, the applicants complained that the Polish authorities had not complied with the interim measures granted to them by the Court, in breach of Article 34 of the Convention. 5.     On 13 July, 3 August and 21 July 2017 respectively, the applications were communicated to the Government. Having regard to the Court’s findings in I v. Sweden (no. 61204/09, §§ 40-46, 5 September 2013), it was decided that Russia would not be given notice of the present application. 6.     The Government and the applicants filed written observations on the admissibility and merits of the case. 7.     In addition, written comments concerning case no. 42902/17 were received from the Centre for Advice on Individual Rights in Europe, the Dutch Council for Refugees, the European Council on Refugees and Exiles and the International Commission of Jurists (acting jointly – “the third-party interveners”), the President of the Section having given them leave to do so (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court). THE FACTS   THE CIRCUMSTANCES OF THE CASE 8.     The facts of the cases, as submitted by the parties, may be summarised as follows.     M.K. v . Poland, application no. 40503/17    The applicant’s situation prior to the application for an interim measure 9.     The applicant, Mr M.K., is a Russian national. 10.     In the period from July 2016 until 8 June 2017 he travelled to the Polish-Belarusian border crossing at Terespol on approximately thirty occasions. He submitted that each time that he had visited that border crossing he had expressly stated a wish to lodge an application for international protection; on at least several of those occasions, he had presented that application in written form (a copy of this document was submitted to the Court). 11 .     The applicant also submitted that on one occasion (on 17 March 2017) his representative had also been at the border checkpoint at Terespol but had not been allowed to meet with the applicant or be present at his questioning by the border guards. The presence of the applicant’s lawyer at the border was a part of a wider effort to provide legal assistance to asylum ‑ seekers organised by a group of lawyers from the Warsaw Bar Association. On the same day fifty-one persons – mainly of Chechen origin – presented themselves at the border checkpoint at Terespol. At the same time fourteen lawyers carrying powers of attorney from those persons were at the border and requested to be allowed to assist their clients during the second stage of the border-control process. Their request was refused. All those represented by the lawyers in question were returned to Belarus without the possibility of meeting with their representatives. 12.     According to the applicant, when talking to the border guards he expressed fears for his safety. He told the guards that he was from Chechnya and that before leaving that region he had been detained numerous times without any legal basis. He told them that on one occasion, while being questioned by the Chechen police, he had been tortured and forced to sign a   statement agreeing to serve as an informant for the police; subsequently, the police had tried to find and arrest him. He presented to the border guards documents confirming that after being tortured he had developed post ‑ traumatic stress disorder. He also told the border guards that he could not remain in Belarus as his visa had expired and that in practice it would be impossible for him to obtain international protection there. The border guards then summarily turned him away, sending him back to Belarus. 13.     On each occasion that the applicant presented himself at the border crossing at Terespol administrative decisions were issued turning him away from the Polish border on the grounds that he did not have any documents authorising his entry into Poland and that he had not stated that he had been at risk of persecution in his home country but was in fact trying to emigrate for economic or personal reasons. The official notes prepared by the officers of the Border Guard reported that the applicant had indicated, inter alia : his desire to live and work in Poland or Germany, his desire to find a wife and start a family in Poland, his lack of any family in Chechnya, his wish to travel to join friends residing in Europe, his lack of employment and money, his refusal to denounce his friends to the authorities, and his wish to escape from the Chechen justice system in order to avoid responsibility for an accident in which someone had died. 14 .     The applicant appealed against at least one of those administrative decisions (that decision had been issued on 17 March 2017). On 12 June 2017 the head of the National Border Guard ( Komendant Główny Straży   Granicznej ) upheld the decision in question. The applicant lodged an appeal with the Warsaw Regional Administrative Court ( Wojewódzki Sąd Administracyjny w Warszawie ). The proceedings before that court are pending.    Interim measure indicated by the Court 15.     On 8 June 2017, when the applicant presented himself at the border crossing at Terespol, his representative lodged a request under Rule 39 of the Rules of Court asking the Court to prevent the applicant from being removed to Belarus. She indicated that, as a Russian citizen, the applicant had no genuine possibility of applying for international protection in Belarus and was at constant risk of expulsion to Chechnya, where he would face the threat of torture or of other forms of inhuman and degrading treatment. 16 .     On 8 June 2017, at 10.52 a.m., the Court (the duty judge) decided to apply Rule 39 of the Rules of Court, indicating to the Polish Government that the applicant should not be removed to Belarus until 23 June 2017. The   Government were informed of the interim measure before the planned time of expulsion. Nevertheless, the applicant was returned to Belarus at 11.25   a.m. He appealed against that decision. 17.     On 1 September 2017 the head of the National Border Guard upheld that decision. He stated, inter alia , that under domestic law, an interview with a foreigner who did not have documents allowing him to cross the Polish border was to be held by an officer of the Border Guard without the participation of other persons, including the lawyer representing that foreigner. The head of the National Border Guard added that the applicant had not expressed any wish to apply for international protection, as had he lodged such an application, the border guards would have received it. According to the head of the National Border Guard, the applicant had not substantiated that he had indeed tried to lodge such an application. Instead, the official note prepared by the Border Guard officer who had interviewed him stated that the applicant had expressed a wish to escape the judicial authorities in Chechnya and to travel to meet with friends to Germany. When referring to the interim measure indicated by the Court, the head of the National Border Guard stated that it was impossible to remove from Polish territory a person who had not legally crossed a border in the first place and that domestic law provided no basis for allowing the applicant to enter Poland. 18 .     The applicant appealed to the Warsaw Regional Administrative Court. The proceedings before this court are still pending.    Developments following the application of an interim measure 19.     On 9 June 2017 the applicant returned to the border checkpoint at Terespol, carrying with him a copy of a letter informing his representative of the Court’s decision concerning the interim measure. The applicant submitted that he had been searched by border guards and questioned about the people who had helped him and who had secured him legal representation and how this representation had been paid for. The applicant also alleged that his copy of the letter from the Court had been confiscated from him. The Government maintained that neither any such search nor any seizure of that document had taken place. They also stated that the applicant had not been questioned regarding his legal representation. They furthermore stated that during his conversation with the officers of the Border Guard the applicant had not expressed any need for international protection; rather, he had declared that he wished to go to Germany, where his family lived. 20.     On the same day the Government requested that the Court lift the interim measure indicated under Rule 39 of the Rules of Court. They argued that the applicant had never requested international protection, and nor had he given any reasons for the need for such protection. They also maintained that as the applicant had not been admitted to Poland by the border guards, he had not been legally in Poland and could therefore not be removed. In the Government’s view the applicant had abused the interim measure in order to pressurise the Polish Border Guard officers into giving him permission to enter Poland. 21 .     On 14 June 2017 the Court (the duty judge) decided not to lift the interim measure, but rather to prolong it until further notice and to indicate to the Government that in the light of the submissions made to the Court (especially the applicant’s written application and his submissions, copies of which had been forwarded to the Government), the Court considered that the applicant had lodged a request for international protection. The Court clarified that the indication, made to the Government on 8 June 2017, that the applicant should not be removed to Belarus should be understood in such a way that when he presented himself at a Polish border checkpoint his application for asylum would be received and registered by the Border Guard and forwarded for examination by the competent authorities. Pending examination of the asylum application, the applicant should not be sent back to Belarus. 22 .     The applicant arrived at the border checkpoint at Terespol on at least three more occasions. On each occasion he was turned away. The official notes made by the officers of the Border Guard state that on those three occasions he had indicated that he wished to enter Poland because he had not had any employment in Chechnya and he wished to live and work in Poland and to visit his friends in Germany; he also stated that he had a sister who lived either in Germany or in France. The Government also submitted that during one of the interviews with the officers of the Border Guard the applicant had stated that he had been helped by Belarusian non ‑ governmental organisations but that he did not know any Polish lawyers and that he had never talked to the psychologist who had signed a   psychological report that he was carrying. The applicant contested those allegations. He submitted to the Court that he had indeed been subjected to a   psychological examination (organised by a non-governmental organisation on 5 and 7 June 2017), the results of which he had presented in his submissions to the Court and to the Border Guard officers. He also submitted that he had declared to the officers of the Border Guard that he was in contact with his representative and that he was able to contact her by telephone at any time. 23 .     On at least one of the occasions on which the applicant went to the Terespol border checkpoint (on 19 June 2017) his representative sent a copy of his application for international protection via email, fax and ePUAP (the   Internet platform that enables individuals to contact the public administrative authorities) to the Border Guard at Terespol and to the Polish Border Guard Headquarters in Warsaw. She also informed of that fact the department of the Ministry of Foreign Affairs in charge of dealing with proceedings before international human rights bodies (where the agent of the Polish Government in charge of dealing with the Court is based). In her letter she also referred to the interim measure indicated by the Court under Rule 39 of the Rules of Court. On 22 June 2017 the Deputy Director of the Department for Aliens at the National Border Guard headquarters ( Zastępca   Dyrektora Zarządu do Spraw Cudzoziemców Komendy Głównej Straży Granicznej ) replied to the applicant’s representative, indicating to her that an application for international protection might be submitted only at the Polish border by the applicant in person. 24.     On 8 September 2017, when submitting their observations on the admissibility and merits of the case, the Government again requested that the Court lift the interim measure indicated under Rule 39 of the Rules of Court. They cited the same reasons as those cited in their previous request. On 13 November 2017 the President of the Section refused their request. 25.     On an unspecified date the applicant left Belarus, stating that he was afraid of deportation to Chechnya. He is currently residing in Siberia, Russia.     M.A. and Others v. Poland, application no. 42902/17    The applicants’ situation prior to the application for an interim measure 26.     The applicants, Mr M.A. (“the first applicant”) and Mrs M.A. (“the   second applicant”) are Russian nationals. They are married. The other five applicants are their minor children, who were travelling with them. 27.     In April 2017 the applicants travelled to the Polish-Belarusian border crossing at Terespol on two occasions. According to them, on each occasion they expressed a wish to lodge an application for international protection. 28.     According to the applicants, when talking to the border guards, they expressed fears for their safety. They told the border guards that they were from Chechnya. The first applicant submitted that in 2005 he had started to have problems with officers of the special services because his relatives had participated in the second Chechen war. Police officers had come to his home and taken him for questioning to a police station. His home had been raided by armed people wearing masks. Subsequently, he had decided to leave the Chechen Republic and had applied for international protection in Poland. Later, he had moved to Austria. In 2010 he had returned to Chechnya and had started working at the Department for Protection (participating in some counter-terrorist operations and provided security to governmental officials). He had quit that job, but before doing so, he had been asked if he was planning to join any illegal armed groups in Syria. The   first applicant submitted that on one occasion he had been taken to the headquarters of the Department for Protection. He had been asked to become an informant for the Chechen security services but had refused to do so. On another occasion police officers had come to his home and forcibly taken him to a police station. He had again been asked to become an informant, but he had refused. He submitted that afterwards he had been tortured with electric shocks and by being beaten in his lumbar region (lower back), head and other parts of his body. After that he, together with the second applicant and their children, had left their home and had travelled to Belarus, with the aim of travelling onwards to Poland. They had told the border guards that they could not continue their stay in Belarus, as their visas had expired and that in practice it would be impossible for them to obtain international protection there. The border guards had then summarily turned them away, sending them back to Belarus. 29.     On both occasions on which the applicants presented themselves at the border crossing at Terespol, 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 that they were simply trying to emigrate for economic or personal reasons. The   official notes prepared by the officers of the Border Guard observed that the applicants had cited (i) their desire to seek a better life in Europe for their big family and to join family members in Germany and obtain social benefits there, and (ii) the lack of employment opportunities in Chechnya. 30.     The applicants did not appeal against the administrative decisions issued on those occasions. 31.     At the same time, in April and May 2017, they also tried to enter Lithuania and – according to their statements to the Court – lodge an application for international protection there. The proceedings before the Lithuanian authorities were the subject of a separate application concluded by a judgment of the Court delivered in late 2018 (see M.A. and Others v.   Lithuania , no. 59793/17, 11 December 2018).    Interim measure indicated by the Court 32.     On 16 June 2017, when the applicants presented themselves at the border crossing at Terespol, their representative lodged a request under Rule   39 of the Rules of Court, asking the Court to prevent the applicants from being removed to Belarus. He indicated that, as Russian citizens, they had no genuine possibility of applying for international protection in Belarus and were at constant risk of expulsion to Chechnya, where the first applicant would face the threat of torture or other forms of inhuman and degrading treatment. 33 .     At 10.48 a.m. on 16 June 2017 the Court (the duty judge) decided to apply Rule 39 of the Rules of Court, indicating to the Polish Government that the applicants should not be removed to Belarus until 30 June 2017. The Court clarified that the indication that the applicants should not be removed to Belarus should be understood in such a way that when they presented themselves at a Polish border checkpoint their application for asylum should be received and registered by the Border Guard and forwarded for examination to the competent authorities. Pending examination of the asylum application, the applicants should not be sent back to Belarus. The Government were informed of the interim measure before the planned time of expulsion. Nevertheless, the applicants were returned to Belarus at 11.25 a.m. The official note prepared by border guards on this occasion stated that, when at the border, the applicants had expressed the wish to enter Poland in order to settle and raise their children there.    Developments following the application of the interim measure 34 .     On 20 June 2017 the applicants returned to the border checkpoint at Terespol, carrying with them an application for international protection and a copy of a letter informing their representative of the Court’s decision concerning the interim measure. Again, they were turned away and sent back to Belarus. The Government submitted that in the course of their conversation with the officers of the Border Guard the applicants had not expressed any need for international protection; rather, they had declared that they wished to settle in Europe owing to the lack of adequate employment opportunities in Chechnya. 35 .     While the applicants were trying to apply for asylum, a Polish lawyer cooperating with the applicants’ representative sent a copy of the first applicant’s application for international protection via email, fax and   ePUAP to the Border Guard at Terespol and to the Polish Border Guard headquarters in Warsaw. She also informed (by letter) of that fact the department of the Ministry of Foreign Affairs in charge of dealing with proceedings before international human-rights bodies (where the agent of the Polish Government in charge of dealing with the Court is based). In her letter she also made reference to the interim measure indicated by the Court on 16 June 2017 under Rule 39 of the Rules of Court (see paragraph 33 above). On 22 June 2017 the Deputy Director of the Department for Aliens at the Polish Border Guards’ headquarters answered the letter from the lawyer in question, indicating to her that an application for international protection could be submitted only at the Polish border by the applicant in person. 36 .     On 23 June 2017 the Government requested that the Court lift the interim measure indicated under Rule 39 of the Rules of Court. They argued that the applicants had never requested international protection, and nor had they given any reasons for such protection. They also maintained that as the applicants had not been admitted to Poland by the country’s border guards, they had never been legally in Poland in the first place and could therefore not be removed. The Government stated that, in their opinion, the applicants had abused the interim measure in order to pressurise the Polish Border Guard officers into giving them permission to enter Poland. A similar approach was presented by the Government in their letter dated 28 June 2017. 37 .     On 30 June 2017 the Court (the duty judge) decided not to lift the interim measure but to extend it until 21 July 2017, and indicated to the Government that in the light of the submissions made to the Court, it considered that the applicants had lodged a request for international protection. At the same time the Court expressed concern as regards the Government’s refusal to register the applicants’ asylum applications. On   19   July 2017 the Court (the duty judge) extended the interim measure until 3   August   2017. On 3 August 2017 the duty judge extended the interim measure until further notice. 38 .     In the period between 3 August and 11 December 2017 the applicants arrived at the border checkpoint at Terespol on at least three more occasions. They were turned away. The Government submitted that on one of those occasions the applicants had presented a document entitled “Request for international protection” prepared by their representative in Polish, but stated that they had not understood its contents as they did not speak Polish. The Government also alleged that while being interviewed by the border guards the applicants had made statements that contradicted the account of their history given in the document. The applicants also submitted to the Court a Russian-language version of the first applicant’s application for international protection (dated May 2017 and addressed to the Lithuanian authorities). The text of this document corresponds to the statements submitted in Polish. 39.     On 20 September 2017, when submitting observations on the admissibility and merits of the case, the Government again requested that the Court lift the interim measure indicated under Rule 39 of the Rules of Court. They cited the same reasons as those cited in their previous application. On 6 December 2017 the President of the Section refused their request.    A request for a new interim measure concerning the second applicant 40 .     On 13 December 2017 the applicants’ representative informed the Court that the previous day (12 December 2017) the applicants had again tried to lodge an application for international protection at the border checkpoint at Terespol. Again, decisions denying them entry had been issued. However, when on their way to catch the train that was to take them back to the city of Brest, in Belarus, the second applicant, who was at the time seven or eight months pregnant, had slipped and fallen. The applicants’ representative submitted that she had been taken to the hospital in Biała Podlaska, Poland and remained under the supervision of border guards. He also stated that she had been carrying a written application for international protection and had attempted to submit it to the officers of the Border Guard. 41.     Referring to the above information, the applicants’ representative lodged a fresh request under Rule 39 of the Rules of Court, asking the Court to indicate to the Government: 1) not to return the second applicant to Belarus, 2) not to obstruct the lodging of an asylum application by the second applicant and 3) to make sure that the second applicant and her foetus were properly examined by a qualified doctor and that they had access to the best available medical services. 42.     On 14 December 2017 the Court (the duty judge) decided to refuse the request in respect of point 3. With reference to points 1 and 2 of the request the Court reminded the Government that the interim measure indicated on 16 June 2017 and prolonged until further notice on 3 August 2017 was still in force. 43 .     On the same day the second applicant was released from hospital and returned to Belarus. She lodged an appeal against the decision of 12   December 2017 (see paragraph 40 above) denying her entry into Poland. According to the information submitted to the Court, the proceedings concerning her appeal are still pending before the head of the National   Border Guard.    The disappearance of the first applicant and the procedure concerning the second applicant and her children 44 .     During the period between October and December 2017 the applicants’ relatives residing in Chechnya received a number of summonses for the first applicant to appear before the police. In December 2017 those summonses were delivered to Brest, Belarus, where the applicants were residing. The first applicant was summoned to the police station in Brest and informed that he and his family had to leave Belarus. Otherwise, they would be deported and banned from entering the country again. 45 .     The applicants left Belarus and travelled to Smolensk, Russia, where the first applicant was immediately detained by the police and – according to the information his wife received from their relatives in Chechnya –transferred to the town of Grozny in the Chechen Republic. 46.     The second applicant decided to return with her children to Belarus and to try again to lodge an application for international protection. After one unsuccessful attempt, on 7 January 2018 the border guards at Terespol received her application and forwarded it for review by the head of the Aliens Office ( Szef Urzędu do Spraw Cudzoziemców ). The second applicant and her children were placed in a refugee reception centre.    The further whereabouts of the first applicant and his application for international protection 47 .     On 20 May 2018 the applicants’ representative informed the Court that in February 2018 the first applicant had been released from detention in the Chechen Republic. According to the representative, the applicant had no knowledge as to where he had been detained. He alleged that he had been beaten by the personnel of the detention facility and provided photos of significant bruises on his body. 48.     In March 2018 the first applicant left Chechnya again and travelled to Belarus. On 20 March 2018 he travelled to Terespol and lodged an application for international protection. He was admitted to Poland and joined the second applicant and their children in a refugee reception centre.    The applicants’ departure from Poland 49.     On 18 May 2018 the applicants voluntarily left the refugee reception centre and travelled to Germany. Owing to their departure the proceedings concerning their applications for international protection were discontinued (on 30 May 2018 with respect to the second applicant and her children and on 4 June 2018 with respect to the first applicant). 50.     On 7 June 2018 the German authorities lodged requests for the applicants to be transferred back to Poland under Regulation EU No.   604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (“the Dublin III Regulation”). On 14 June 2018 the head of the Aliens Office agreed to examine the applicants’ applications for international protection. According to the information submitted to the Court, the applicants have not yet been transferred to Poland. 51 .     On 29 August 2018, the President of the Section, following an application lodged by the Government, decided to lift the interim measure indicated to the Government in the applicants’ case.     M.K. and Others v. Poland, application no. 43643/17    The applicants’ situation prior to the application for an interim measure 52.     The applicants Mr M.K. (“the first applicant”) and Mrs Z.T. (“the   second applicant”) are Russian nationals. They are married. The   remaining applicants are their three minor children. 53.     In the period from September 2016 to July 2017 the applicants travelled to the border crossing at Terespol on twelve occasions. According to the applicants, on each occasion they expressed a wish to lodge an application for international protection; on at least one occasion they were carrying that application in written form (a copy of the relevant document was submitted to the Court). 54 .     According to the applicants, on one occasion (on 17 March 2017) their representative was also at the border checkpoint at Terespol, but was not allowed to meet them or be present during their questioning by the border guards. Their representative’s presence at the border was related to the events that were described above with respect to case no.   40503/17 (see   paragraph 11 above). 55.     According to the applicants, when talking to the border guards, they expressed fears for their safety. The first applicant told the border guards that in the Chechen Republic he had been kidnapped, detained and tortured by people he did not know because of his alleged participation in the disappearance of an officer (or collaborator) of the local office of the Department for Combatting Organised Crime who had been a relative of people close to Ramzan Kadyrov, the head of the Chechen Republic. Later, the applicants and their children had gone to Poland and then to Austria. From Austria, where they had unsuccessfully applied for international protection, they had been deported to Russia. The first applicant had gone into hiding and the second applicant had gone back to her family village in Chechnya with their children. She stated that upon her return she had been harassed, threatened and questioned about her husband. On one occasion she had been kidnapped and detained for around twenty-four hours, during which time she had been interrogated and threatened with sexual violence. She had been asked about the whereabouts of her husband. The applicants presented to the border guards documents confirming that, as torture victims, they had developed post-traumatic stress disorder. They also stated that they could not continue their stay in Belarus, as their visas had expired and that in practice it was impossible for them to obtain international protection there. The border guards then summarily turned them away, sending them back to Belarus. 56.     On each occasion that the applicants presented themselves at the border crossing at Terespol, 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. The official notes prepared by the officers of the Border Guard reported that the applicants had indicated, inter alia , their lack of money, together with their wish to: live in Poland, receive financial support, seek a better life in Europe, travel to Austria to join a family member residing there, settle and work in Germany, and educate their children in Europe. 57 .     The applicants appealed at least once against the decisions issued on 17   March 2017 refusing entry. On 12 June 2017 the head of the National   Border Guard upheld those decisions. The applicants appealed to the Warsaw Regional Administrative Court. The proceedings before that court are pending.    Interim measure indicated by the Court 58.     On 20 June 2017, when the applicants presented themselves at the border crossing at Terespol, their representative lodged a request under Rule   39 of the Rules of Court, asking the Court to prevent the applicants from being removed to Belarus. She indicated that, as Russian citizens, the applicants had no genuine possibility of applying for international protection in Belarus and were at constant risk of expulsion to Chechnya, where they would face the threat of torture and other inhuman and degrading treatment. 59 .     At 10.14 a.m. on 20 June 2017 the Court (the duty judge) decided to apply Rule 39 of the Rules of Court, indicating to the Polish Government that the applicants should not be removed to Belarus until 4 July 2017. The   Government were informed of the interim measure before the planned time of expulsion. The applicants were nevertheless returned to Belarus at 11.25   a.m. The official note prepared by the border guards on this occasion stated that, when at the border, the applicants had expressed the wish to enter Poland because they had not been able to find employment in Chechnya and because they wished to raise their children in Europe.    Developments following the application of an interim measure 60.     On 27 June 2017 the Government requested the Court to lift the interim measure indicated under Rule 39 of the Rules of Court. They argued that the applicants had never requested international protection, nor given any reasons to justify such protection. The Government stated that, in their opinion, the applicants had abused the interim measure in order to pressurise the Polish Border Guard officers into giving them permission to enter Poland. 61 .     On 4 July 2017 the Court (the duty judge) decided not to lift the interim measure but to extend it until 21 July 2017, and indicated to the Government that – in the light of the submissions made to the Court (especially the documents attached to the request for an interim measure and the applicants’ submissions to the Court, copies of which had been sent to the Government) – it appeared that the applicants had tried to submit a   request for international protection. On 21 July 2017 the duty judge extended the interim measure until further notice. 62 .     In the period between 22 June and 6 September 2017 the applicants returned to the border checkpoint at Terespol at least seven further times. On one occasion they also tried to lodge an application for international protection at another border checkpoint (at Czeremcha-Połowce). Each time they were turned away. On two of those occasions they appealed against the decisions refusing entry. According to the information provided to the Court, the proceedings in respect of those cases are still pending before the head of the National Border Guard. 63.     The applicants submitted that on all those occasions they were carrying (i) a copy of a letter informing their representative of the Court’s decision concerning the interim measure and (ii) written applications for international protection. They had also clearly expressed a wish to lodge those applications. The Government alleged that the applicants had never expressed such a wish. The official notes prepared by the officers of the Border Guard stated that during their questioning the applicants had expressed a wish to live and work in Poland and to send their children to school there. 64 .     On at least three of the occasions on which the applicants arrived at the Terespol and Czeremcha-Połowce border checkpoints, their representative sent a copy of their application for international protection via email and fax to the relevant units of the Border Guard. In her letter she also made a reference to the interim measure indicated by the Court under Rule 39 of the Rules of Court. 65.     On 11 September 2017, when submitting observations on the admissibility and merits of the case, the Government again requested that the Court lift the interim measure indicated under Rule 39 of the Rules of Court. On 13   November 2017 the President of the Section refused their request. 66.     On an unspecified date the applicants left Belarus in order to avoid deportation. They indicated that they were travelling within an undisclosed region. They submitted that they remained in hiding for fear of being tracked by the Chechen authorities.   RELEVANT DOMESTIC LAW     Constitutional provisions 67.     The 1997 Constitution contains the following provisions relating to the rights of foreigners: Article 37 “1.     Anyone under the jurisdiction of the Polish State shall enjoy the freedoms and rights ensured by the Constitution. 2.     Exemptions from this principle with respect to foreigners shall be specified by statute.” Article 56 “1.     Foreigners shall have the right of asylum in the Republic of Poland, in accordance with principles specified by statute. 2.     Foreigners who, in the Republic of Poland, seek protection from persecution, may be granted the status of a refugee, in accordance with international agreements to which the Republic of Poland is a party.”     The Act of 13 June 2003 on granting protection to aliens within the territory of the Republic of Poland 68.     The procedure for granting refugee status and “tolerated stays” ( pobyt tolerowany ) to foreigners and their expulsion is regulated by the Act of 13 June 2003 on granting prote