Report of the Polish Commissioner for Human Rights on the Activities of the National Mechanism for the Prevention ...
One case concerned a married couple from Chechnia who, together with their
three juvenile children (2, 4 and 8 years old), were transferred from Germany to
Poland. According to an expert of the NMPT, the recommendation submitted
by the local Border Guard Commander in Szczecin to place them in a CDC, as
well as the procedure whereby a court issued the order to do so, failed to take into
account procedures for screening migrants to determine if they faced threats to
their lives or health or had been victims of violence, the results of which could
have clearly indicated there were no grounds for placing the migrants in a closed
centre. The expert also determined that the German side had transferred the migrants without securing and conveying, in an appropriate and clear manner, information about their current state of health and the treatment they had received
during their stay in Germany as persons applying for refugee status in that country – information that would appear to be crucial when the decision was made by
the Polish Border Guard to recommend placing them in a CDC.
Pursuant to Article 31 of the Dublin III Regulation, The Member State
carrying out the transfer of an [asylum] applicant (...) shall communicate to
the Member State responsible such personal data concerning the person to be
transferred as is appropriate, relevant and non-excessive for the sole purposes
of ensuring that the competent authorities, in accordance with national law in
the Member State responsible, are in a position to provide that person with adequate assistance, including the provision of immediate health care required in
order to protect his or her vital interests, and to ensure continuity in the protection and rights afforded by this Regulation and by other relevant asylum legal
instruments. Those data shall be communicated to the Member State responsible within a reasonable period of time before a transfer is carried out, in order
to ensure that its competent authorities in accordance with national law have
sufficient time to take the necessary measures. The member state carrying out
the transfer shall provide (…) the Member State responsible any information
that is essential in order to safeguard the rights and immediate special needs of
the person to be transferred (…)including any immediate measures which the
Member State responsible is required to take in order to ensure that the special
needs of the person to be transferred are adequately addressed, including any
immediate health care that may be required.
Moreover, Article 9 of the implementing regulation requires the transferring state to inform the country receiving migrants from it about impediments
to the transfer stemming from the health of the persons being transferred: the
relevant Member State shall be informed without delay about (…) physical
impediments such as the poor health of the person applying for asylum.
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