Bilalova and Others v. Poland: Detention of child applicants violated Article 5 ECHR

Wednesday, March 25, 2020

On 25 March 2020, the European Court of Human Rights published its judgment in the case of Bilalova and Others v Poland (Application No. 23685/14) concerning the detention of a woman and her five children.

The applicants, Russian nationals of Chechen origin, were held in a closed centre for foreigners pending the decision of their application for refugee status. In June 2013, the applicants left Poland and travelled to Germany while a decision on their application was still pending. The German authorities subsequently returned the applicants to the Polish authorities pursuant to the Dublin II Regulation, who then ordered their detention for an initial period of 60 days. Their application for refugee status and all appeals were rejected and an expulsion order was subsequently issued. They complained that their detention was, inter alia, contrary to Articles 3 and 5 (1) (f) ECHR.

In respect of Article 3, the applicant mother complained that the domestic authorities did not take into consideration her claim that she was under the care of psychologist due to distress as a result of the deprivation of liberty and anxiety disorders after experiencing domestic violence. The Court noted that the national authorities had not been provided sufficient opportunity to react to the findings detailed in the applicant’s medical certificates, which were provided 3 days before their expulsion was ordered. It added that it was not clear from the medical certificate that the applicant’s state of health and distress were attributable to her detention or from suffering domestic violence. The Court concluded that the applicant had not shown that the situation was attributable to the actions of the national authorities and therefore did not violate Article 3 ECHR.

The applicants also complained that the placement and maintenance of children in a closed centre for foreigners were unlawful. The Court observed, inter alia, that the place and conditions of detention must be appropriate and that the duration of detention must not exceed a period that is reasonably necessary to achieve the aim pursued. It added that while there was a legal basis for the children’s detention under domestic law, the place of detention was one of confinement similar to a prison. The Court noted that according to a well-established case-law, as a matter of principle, the confinement of young children in such structures should be avoided and that only short-term placement under suitable conditions could be compatible with the Convention, provided however that the authorities established that they resorted to this measure as a last resort only after having specifically verified that no other less coercive measure is available. It concluded that there was insufficient evidence to show that the domestic authorities had carried out such assessment, and that steps had not been taken to limit the duration of their detention. The Court therefore found that the detention of the children amounted to a violation of Article 5 (1) (f).

Based on an unofficial translation by the EWLU team. Photo: tzvlf, January 2020, Flickr (CC)

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is pusexblished but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                                 




Best interest of the child
Individual assessment
Inhuman or degrading treatment or punishment