Judgment of the ECHR of 23 July 2020 in the case "M. K. and Others (M. K. and Others) v. Poland" (aplication No. 40503/17 and other aplications).
In 2017, the applicants were assisted in the preparation of aplications. The aplications were subsequently consolidated and communicated to Poland.
The case successfully examined aplications about the denial of asylum to the applicants and their entry into the country, their return to the Republic of Belarus, and also appeals that the applicants were not provided with effective guarantees that would protect them from the real risk of being subjected to inhuman or degrading treatment, as well as torture. The case involved a violation of the requirements of article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as well as a violation of the requirements of article 4 of Protocol No. 4 to the Convention.
CIRCUMSTANCES OF THE CASE
The applicants are citizens of the Russian Federation. They are Chechens by nationality. In 2017, they visited several border checkpoints on the Polish-Belarusian border (Terespol and Czeremca-Polowce). The applicants claimed that each time they wanted to apply for asylum, but the border guards denied them this opportunity, as well as entry into the country, and returned them to the Republic of Belarus, although the applicants reported that they would not have access to a proper asylum procedure in the Republic of Belarus and that they could face torture or other forms of cruel or degrading treatment if returned to the Russian Federation (the Chechen Republic). According to the written statements of the border guards, the applicants did not express any intention to apply for asylum, but numerous reports from Polish human rights and non-governmental organizations and the media reported that the border guards regularly refused to accept asylum applications. In respect of the applications, the Court referred to the application of an interim measure under rule 39 of the Rules of Court. Nevertheless, the applicants were sent to the Republic of Belarus. In the future, the applicants applied several times to the border checkpoints, but they were again denied passage. The applications of some of the applicants for asylum were eventually received by the Polish authorities, and these applicants were placed in a reception and accommodation center for foreign citizens.
Regarding compliance with article 3 of the Convention. In deciding whether the applicants had expressed an intention to apply for asylum when they arrived at the border checkpoints or not, the Court attached greater importance to the applicants ' version of events, which was confirmed by the testimony of witnesses. The reports of Polish human rights organizations pointed to the existence of a systematic practice of misrepresenting the appeals of asylum seekers in official documents compiled by border guards working on the border between Poland and the Republic of Belarus. Moreover, violations in the procedure of interviews with foreigners arriving at the Polish-Belarusian border at the time under review, including the lack of proper verification of the reasons why foreign citizens wanted to enter Poland, were confirmed by the Supreme Administrative Court of Poland. Also, these deficiencies were confirmed in a number of documents submitted to the European Court, especially copies of applicants for international protection, which the applicants were brought to the border, numerous attempts applicants to cross the border and their interests lawyers from Poland and Belarus. In any event, the Polish authorities were informed of the applicants 'concerns about ill-treatment in the event of their return, since the asylum applications were sent to the Polish authorities electronically, both by the applicants' representatives and by the European Court of Justice, when it indicated the application of an interim measure under rule 39 of the Rules of Court. Consequently, the Court could not accept the Polish authorities ' argument that the applicants had failed to provide any evidence that they might have been subjected to ill-treatment.
The applicants submitted evidentiary complaints that there were no guarantees that the authorities of the Republic of Belarus would seriously consider their complaints, and that their return to the Chechen Republic would violate article 3 of the Convention. The Polish authorities had to evaluate these allegations. Moreover, the authorities of the respondent State had an obligation to ensure the applicants 'safety, in particular by allowing them to remain in the territory under Polish jurisdiction until the applicants' complaints had been properly examined by the competent Polish authorities. The limits of this obligation did not depend on whether the applicants had documents with them that gave them the right to cross the State border of Poland, or whether they were legally allowed to enter the territory of Poland on other grounds.
The Polish authorities argued that by denying the applicants entry into their territory, they were acting in accordance with the legal obligations of the European Union. However, the law of the European Union clearly contained the principle of non-refoulement (prohibition of expulsion), guaranteed by the United Nations Convention relating to the Status of Refugees (Geneva, 28 July 1951), and also applied to persons who had to pass a check at the border of a Member State before gaining access to the territory of that State. Consequently, the measures taken by the Polish authorities and appealed against in the present case were outside the strict international obligations of Poland.
As a result, the applicants were not provided with effective guarantees that would protect them from the real risk of being subjected to inhuman or degrading treatment, as well as torture. The absence of a procedure under which the applicants ' applications for international protection could be considered may be considered as a violation of article 3 of the Convention. Moreover, in view of the situation in neighbouring States, by not allowing the applicants to remain on their territory until their applications were considered, the Polish authorities deliberately exposed the applicants to a serious risk of "forced expulsion" and treatment prohibited by article 3 of the Convention.
The case involved a violation of the requirements of article 3 of the Convention (adopted unanimously).
Regarding compliance with Article 4 of Protocol No. 4 of the Convention. If the prohibition on the collective expulsion of aliens contained in Article 4 of Protocol No. 4 to the Convention can be considered applicable to the actions of a State intended to prevent migrants from reaching the borders of that State, then it is all the more obvious that this prohibition can be applied in a situation where foreigners themselves arrived at the border of a State and were returned from there to the territory of an adjacent State.
During the applicants ' stay at the border, their requests to seek international protection were ignored, and although a separate decision was made in respect of each of the applicants, the relevant refusal documents did not properly indicate the reasons cited by the applicants when they claimed that they were afraid of persecution. Some applicants were not allowed to consult with lawyers and were denied access to lawyers, even when the latter were at the border checkpoint and demanded to be allowed to meet with their clients (applicants).
The applicants tried to use the procedure for applying for international protection, which should have been available to them under Polish law. They tried to cross the border legally by arriving at an official border checkpoint and passing all the border checks required by the relevant law. Thus, the fact that the Polish authorities refused to consider the applicants 'arguments in favour of granting their applications for international protection could not have been due to the applicants' own conduct.
Moreover, independent reports on the situation at border checkpoints noted that the applicants ' situations were examples of the extensive practice of the Polish authorities in refusing entry to foreigners from the Republic of Belarus, regardless of whether they were migrants solely for economic reasons or whether they expressed concerns about persecution in their country of origin. The reports pointed to the following established practices: (1) very brief interviews were conducted with incoming persons, during which the arguments of foreigners in favor of granting their applications for international protection were ignored; (2) special attention was paid to the arguments in favor of recognizing the incoming economic migrants; (3) the arguments of foreigners and their statements in very brief official documents were distorted, which were the only grounds for issuing further documents on the refusal of foreigners to enter Poland and their return to the Republic of Belarus, even when the foreigners explicitly made it clear that they wanted to apply in Poland for international protection. These conclusions were also supported by some of the Authorities ' statements referred to by the applicants.
The decisions taken in the applicants ' case to refuse entry to Poland constituted a collective expulsion of foreigners.
The case involved a violation of the requirements of Article 4 of Protocol No. 4 to the Convention (adopted unanimously).
The Court also held unanimously that there had been a violation of Article 13 of the Convention, taken in conjunction with Article 3 of the Convention and Article 4 of Protocol No. 4 to the Convention, owing to the absence of a remedy that would have an automatic suspensive effect, and that the Polish authorities had failed to comply with their obligations under Article 34 of the Convention, since they had
In the application of article 41 of the Convention. The Court awarded each of the applicants and each of the two applicants ' families EUR 34,000 in respect of non-pecuniary damage.