This case concerns a complaint lodged by the Commissioner for Human Rights on behalf of a minor applicant, O.A. On 29 December 2021, O.A. was stopped by the Border Police 60km from the border with Belarus detained along with several other third country nationals. That same day, the group were issued decisions to leave the territory. Despite the fact that he was a minor, O.A. was returned to Belarus without being given an opportunity to apply for international protection after a member of the border guards assumed that another Syrian national arrested at the same time as the minor was his legal guardian. O.A. returned to Poland shortly after being returned to Belarus and applied for International Protection as an unaccompanied minor and was assigned a guardian.

In their submission to the court, the commissioner alleged that the order to leave the territory issued to O.A. breached Article 7, Article 77 § 1 and Article 80 of the Code of Administrative Procedure in conjunction with Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as well as Article 4 of Protocol No. 4 to the ECHR.  Furthermore, the Commissioner claimed that the situation constituted an act of collective expulsion. Another infringement highlighted by the Commissioner was the Border Guard’s failure to state the reasons for the order and to indicate the factual basis for the extradition. As a result, the Commissioner considered that the applicants had been deprived of their right to an effective remedy.

In defense, the Border Guard asserted that the applicant did not express a willingness to apply for international protection, however, this point was refuted based on the fact that the applicant subsequently returned to Poland and applied for international protection.

The Provincial Administrative Court of Bialystok confirmed that the Commissioner’s complaint should be upheld, the complaint stating that it appeared that on 29 December 2021, the detainees were not informed about their rights or heard in any way. As such, there was a violation of sections 24 and 25 of the Administrative Procedures Act. Nonetheless, the court did not agree that all of their allegations were justified noting the authority’s failure to act correctly on a given date was not indicative of the authority’s general ability to carry out its role. In particular, the court disagreed with the Commissioner's statement that an interpreter would be required to provide adequate information to detainees. Rather, the court confirmed that given the context, digital translation tools used by the Border Guard would have sufficed if the Border Guard had used them to provide the correct information. Similarly, in so far as the present case is concerned, the court noted that while the Border Guard’s actions could have had a negative impact on the detainees, it was not the court’s position to examine hypotheses or abstract considerations regarding what could have happened the detainees. As such, the court found that there was no violation of Articles 123 §2 and 124 §2 of the Procedures Act or of Article 13 of the European Convention on Human Rights in conjunction with Article 4 of Protocol No. 4.

The court thus ordered the Border Guards to re-examine the case taking into account the arguments put forward by the court.