mutual trust

Asylum

European Court of Human Rights

European Court of Human Rights

application 42120/21

Grand Chamber ruling on 12th of February 2025

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Pushback – international protection – domestic law – dignity – Polish-Belarussian border – legal protection – state of emergency – Covid -19 pandemics.

32 Afghan nationals have been confined for approximately seven weeks in a makeshift camp on the border between Belarus and Poland near the Polish village of Usnarz Górny. They say that they crossed the Belarusian-Polish border in a forest area around 8 August 2021 before being forcibly pushed back to Belarus by Polish border guards; and that since then, they have been stranded in problematic sanitary and humanitarian conditions, between the Belarusian border guards, on the one hand, and the Polish police, on the other.  They claim to have arrived in Belarus after fleeing Afghanistan when the Taliban came to power.  They allege that, if returned to Afghanistan, they would have reason to fear persecution or treatment contrary to Article 3 (prohibition of torture and of inhuman or degrading treatment) of the Convention.

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Interim measure granted by ECHR –  On 25 August 2021 the Court indicated an interim measure, asking the Polish Government to provide the applicants with food, water, clothing, adequate medical care and, if possible, temporary shelter.  On 27 September 2021 the Court (duty judge) decided to extend this interim measure until further notice. Moreover, the Court decided to request the Polish Government, for the purpose of the proceedings before the Court, to allow the applicants’ lawyers to make necessary contact with them by either allowing direct contact between the applicants and their lawyers, provided that the information submitted by the applicants’ representative is accurate and the applicants are on the Polish territory, or allowing the applicant’s lawyers access to the Polish border next to the applicant’s whereabouts. Lastly, the Court decided to indicate to the Polish Government that the applicants should not be sent to Belarus, provided that the information submitted by the applicants’ representative is accurate, and the applicants are on Polish territory.

Not applicable in interim measure

The case of R.A. and Others v. Poland concerns 32 Afghan nationals who have been confined for approximately seven weeks in a makeshift camp on the border between Belarus and Poland near the Polish village of Usnarz Górny. They say that they crossed the Belarusian-Polish border in a forest area around 8 August 2021 before being forcibly pushed back to Belarus by Polish border guards;
and that since then, they have been stranded in problematic sanitary and humanitarian conditions between the Belarusian border guards, on the one hand, and the Polish police, on the other. They
claim to have arrived in Belarus after fleeing Afghanistan when the Taliban came to power. They allege that, if returned to Afghanistan, they would have reason to fear persecution or treatment
contrary to Article 3 (prohibition of torture and of inhuman or degrading treatment) of the Convention. The application was lodged with the European Court of Human Rights on 20 August 2021. It was accompanied by a request for interim measures (Rule 39 of the Rules of Court).

On 25 August 2021 the Court indicated an interim measure, asking the Polish Government to provide the applicants with food, water, clothing, adequate medical care and, if possible, temporary
shelter ( link to press release). On 27 September 2021 the Court (duty judge) decided to extend this interim measure until further notice. Moreover, the Court decided to request the Polish Government, for the purpose of the proceedings before the Court, to allow the applicants’ lawyers to make necessary contact with them by either allowing direct contact between the applicants and their lawyers, provided that the information submitted by the applicants’ representative is accurate and the applicants are on the Polish territory, or allowing the applicant’s lawyers access to the Polish border next to the applicant’s whereabouts. Lastly, the Court decided to indicate to the Polish Government that the applicants should not be sent to Belarus, provided that the information submitted by the applicants’ representative is accurate, and the applicants are on Polish territory. It was pointed out to the parties that any failure by a State to comply with a measure indicated under Rule 39 might entail a violation of Article 34 of the Convention (Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, §§ 128-129, ECHR 2005-I). Rule 39 of the Rules of Court allows the Court to indicate interim measures to any State Party to the European Convention on Human Rights. The Court grants such requests only on an exceptional basis, when the applicants would otherwise face a real risk of irreversible harm

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Polish Government answered i.e.:

The Polish authorities understand the humanitarian aspects on which the Court’s decision is based. Nevertheless they cannot violate the legal provisions governing the territorial integrity of the neighboring State. Undoubtedly, the Convention applies within the jurisdiction of a State Party and the criterion of jurisdiction is a basis for establishing that State’s responsibility for ensuring the rights and freedoms proclaimed by the Convention. 
In the circumstances of the present case – where Poland does not exercise any control over the applicants – the jurisdiction of the State Party cannot go beyond its borders. The fact that Belarus is not a party to the Convention cannot justify forcing the State Party to take actions contrary to law. Any actions taken from the Polish territory in respect of persons staying on the territory of Belarus (without the latter’s consent) would constitute an interference into the Belarusian territory. In consequence, the Border Guard officers cannot allow such contacts by third parties nor can they allow the transfer of goods and merchandise across the border in an unregulated manner.

Nevertheless, bearing in mind the difficult situation of the applicants together with all legal considerations applicable to the border area and wishing to comply with the interim measure indicated by the Court, the Government offer the applicants’ lawyers a possibility to go to the nearest border crossing (in Bobrowniki – app. 29 km, or in Kuźnica – app. 35 km from the applicant’s place of stay). On their part the Polish authorities would provide the applicants’ lawyers with all possible facilitation in crossing the border on the Polish side. It is without prejudice to their compliance with the conditions for entry into the territory of Belarus, such as visa requirements and requirements related to the current situation with regard to the Covid-19 pandemic.

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Jarosław Gwizdak, INPRIS