Chechen refugees unlawfully refused entry at the Terespol border crossing, rules the ECtHR

Chechen asylum seekers, who had repeatedly been refused an opportunity to file an application for international protection by the Border Guard, have successfully challenged Poland before the European Court of Human Rights in Strasbourg.

On 23 July 2020, the ECtHR delivered the judgment in the case M.K. and Others vs. Poland (applications nos. 40503/17, 42902/17 and 43643/17). The applicants were among the group of persons who received pro bono legal assistance at the border crossing in Terespol provided, on 17 March, which was provided by attorneys from the Warsaw Bar Association working with non-governmental organisations such as the Helsinki Foundation for Human Rights, Association for Legal Intervention and Brest-based Human Constanta). On that day the applicants, together with fifty other persons represented by the lawyers from Warsaw, were once again denied entry to Poland.

The Court found that – contrary to the claims of Polish authorities – the foreigners had applied for international protection and that these applications were ignored by the Border Guard. The ECtHR further held that the refusals had been a part of consistent practice at the Terespol border crossing, which was confirmed by sources such as reports of non-governmental organisations (Association for Legal Intervention, HFHR, Human Rights Watch, Amnesty International, Belorussian NGO Human Constanta), the Commissioner for Human Rights and the Ombudsman for Children.

The applicants obtained an interim measure from the European Court of Human Rights, in which the ECtHR prohibited Polish authorities from returning the applicants to Belarus. However, in an unprecedented move, the Polish government decided to ignore the order. The applicants later made several, equally unsuccessful, attempts to apply for international protection.

The ECtHR found that Poland had violated the following articles of the European Convention on Human Rights.

• Article 3, which imposes protection against torture or inhuman or degrading treatment, due to the risk that Belorussian authorities may hand over the applicants to Russian authorities, who may have the applicants transferred to Chechnya, from where the applicants fled in fear of torture. Polish authorities violated this provision by repeatedly refusing to accept and review their applications for international protection, which led to inhuman treatment;
• Article 4 of Protocol No. 4, which prohibits the collective expulsion of aliens. The Court found that although individual decisions refusing entry had been issued, by ignoring the applicants’ requests for protection the authorities had failed to review the applicants’ personal situation. Therefore, the ECtHR held, Poland had no right to return them to Belarus. The Court emphasised that the practice constituted an element of a wider policy of the Polish state.
• Article 13 of the Convention, read in conjunction with Article 3 of the Convention and Article 4 of Protocol No. 4 of the Convention (a failure to provide an effective remedy), which resulted from the fact that a decision refusing entry is immediately enforceable, which means that an appeal against such a decision, lodged with the Commander of the Border Guard, does not lead to the suspension of the decision’s execution and that the decision itself leads to forthwith return of the alien concerned from the Polish border.
• Article 34 of the Convention read in conjunction with Rule 39 of the Rules of Court, namely Polish authorities’ refusal to comply with the ECtHR interim measure prohibiting the applicant’s return to Belarus and obliging Poland to accept the applicants’ requests for international protection for a proper review.

Notably, the principles invoked in the M.K. judgment apply not only to the specific cases to which the judgment pertains, but to any other similar situations. The proper execution of this judgment should, therefore, involve a change in the current practice of not accepting applications for international protection from aliens seeking protection in Poland at the eastern border of Poland.

In the proceedings before the ECtHR, the applicants are represented pro bono by Ms Sylwia Gregorczyk-Abram, Ms Maria Radziejowska and Mr Jacek Białas of the Helsinki Foundation for Human Rights, as well as by Ms Marcjanna Dębska and Ms Emilia Barabasz.