Bistieva and others v. Poland (application no. 75157/14) [Article 8 ECHR], 10 April 2018

Tuesday, April 10, 2018

On 10 April 2018, the European Court of Human Rights (ECtHR) ruled in case Bistieva and others v. Poland (application no. 75157/14), which concerned the detention for almost six months of a Russian national and her three children at the Kętrzyn guarded centre for foreigners. 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. 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.

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 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.

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Best interest of the child
Family unity (right to)
Inhuman or degrading treatment or punishment