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HFHR and ALI: MFA’s statement regarding ECtHR’s prohibition of refugee’s return to Belarus is groundless

In their joint statement, the Helsinki Foundation for Human Rights and Association for Legal Intervention have commented on the information provided on the website of the Ministry of Foreign Affairs regarding the situation at the border crossing in Terespol.

In our opinion, the MFA’s statement regarding Poland’s failure to abide by a decision of the European Court of Human Rights instructing that a Russian national not be returned to Belarus misleads the public. In its statement, the MFA notes that the foreigner has not crossed the Polish border and hence, could not be expelled and that he has not filed an application for international protection during a border check.

First, the European Convention on Human Rights extends to all persons staying within the jurisdiction of a given state (Article 1 of the Convention). At the moment of a border check, the foreigner was within the powers of Polish Border Guards who denied the right of entry to him. The ECtHR’s order applies to the case in question irrespective of the fact whether the foreigner has crossed the border with Poland or not. Notably, one cannot assume that during the border control carried out in Terespol by Polish Border Guards the foreigner was still in the territory of Belarus, as suggested by the MFA.

One must note that in the ECtHR’s case-law the notion of “expulsion” includes returning a foreigner at a border crossing and not allowing him or her an entry to the territory of the state party to the Convention. Another kind of the Convention’s violation may take the form of returning foreigners who have been intercepted or found in international waters (i.e. judgments in the cases of Hirsi and Jamaa v. Italy or Khlaifia and Others v. Italy).

Second, the MFA stated that the foreign national had not declared his intention to apply for international protection during the border check. However, according to the foreign national’s communication with his attorney, this was not the case. He declared such an intention not only on 8 and 9 June but on 27 separate occasions prior to these dates. Nevertheless, the application has never been accepted.

Let us remind our readers that the ECtHR has unconditionally obliged Polish authorities to refrain from returning the foreigner to Belarus. Nothing in the Court’s decision suggested that an earlier submission of an application for international protection is a precondition of Poland’s duty to implement the measures. Therefore, the reference to this fact made by Polish authorities has no impact whatsoever on the implementation of ECtHR’s decision.

In summary, since Polish authorities were prohibited from returning the foreigner to Belarus, then, by doing so, they violated the Court’s measures. According to Professor Ireneusz Kamiński, who represented families of victims of the Katyń Massacre before the European Court of Human Rights, “Regretfully, Poland’s failure to comply with the ECtHR’s interim measures mimics the approach of Russia, which has been refusing to implement many rulings of the Strasbourg Court. Among other things, Moscow denied the ECtHR’s request for a copy of the decision discontinuing the inquiry into the Katyń case, invoking provisions of its domestic law and the alleged absence of the Court’s jurisdiction. Although Polish authorities question the Court’s measures only in one case, this is a very bad practice which evokes very negative associations”.

Last but not least, the Ministry of Foreign Affairs, the government’s department tasked with representing Poland in proceedings before the ECtHR, should know the Convention law and jurisprudence and provide the public with accurate information.

Helsinki Foundation for Human Rights
Association for Legal Intervention

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