On 23 July, the European Court of Human Rights (ECtHR) ruled on the case M.K. and Others vs. Poland. The applicants were among a group of people who on 17 March were denied entry into Poland at the Terespol border crossing. They received pro bono legal assistance at the border crossing from Warsaw Bar Association lawyers working with non-governmental organisations including the Helsinki Foundation for Human Rights, Association for Legal Intervention and Brest-based Human Constanta. The lawyers from Warsaw represented this group and 50 others who were denied entry to Poland on that day.

Polish border guard systematically ignored applications for international protection

The Court found that – contrary to the claims of Polish authorities – the refugees had applied for international protection but that these applications had been ignored by the Border Guard. The ECtHR also found that the refusals had been a part of consistent practice at the Terespol border crossing. This was confirmed by sources including reports by 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 ECtHR, in which the court 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.

ECtHR finds that Poland violated the following articles of the European Convention on Human Rights

• Article 3, which imposes protection against torture or inhuman or degrading treatment. This is because there is a risk that Belarusian 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 situations. The ECtHR held that 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). Any 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 immediate return of the applicant from the Polish border.
• Article 34 of the Convention read in conjunction with Rule 39 of the Rules of Court. Polish authorities refused to comply with the ECtHR interim measure prohibiting the applicants' return to Belarus and obliging Poland to accept that their requests for international protection required proper review.

Decision must apply to other similar cases

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 at Poland's eastern border.

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.