The office of Poland’s commissioner for human rights (RPO) has declared pushbacks at the Belarus border “incompatible with Polish law and international standards” and the provincial administrative court in Warsaw has ruled border guards violated international law during pushback operations. The UN Refugee Agency (UNHCR) has published its observations to amendments of the State Borders Act in Estonia – marking the latest expert critique of the proposed legislation.
According to a recent report from PRO there continues to be a “humanitarian crisis” on Poland’s border with Belarus. “Foreigners, including families with children, under the pressure of the Belarusian [security] services, are still attempting to cross the border in places not intended for that purposes,” wrote deputy human rights commissioner, Hanna Machińska in the report, also noting: “The humanitarian crisis on the border continues, though on a smaller scale”. The Polish human rights office further states that Polish authorities continue to use pushbacks deeming the controversial practice “incompatible with Polish law and international standards”. Spokeswoman for the Polish border guard, Anna Michalska has confirmed that recent video documentation of “brutal behavior of Belarusian officers forcing migrants through barbed wire fencing on the border into Poland, despite screams of protests from the group,” was recorded by its officers. Michalska stated that: “The foreigners were informed about the possibility to apply for international protection in Poland,” adding that as they declined to do so they were informed that under the law they are obliged to leave Polish territory.
The provincial administrative court in Warsaw has ruled that Polish border guards violated international law including the non-refoulement principle when forcing a group of Yemenis and Iraqis back across the border into Belarus in November 2021. The ruling in a case brought forward by ECRE member, Association for Legal Intervention (SIP), marks the second such ruling by a Polish court. The court reportedly “pointed to number of procedural shortcomings. A key issue was the border guard failing to show that it had checked whether the group wanted to apply for international protection in Poland. There was no record at all of the group being interviewed or any notes from conversations with them. The court also noted that foreigners in Belarus are often denied their rights and can even face actions from the authorities there that threaten their health and life”. The court further noted that international and EU law requires that the lodging of an appeal should temporarily stop the expulsion of foreigners. A number of other legal challenges against pushbacks at the Polish border with Belarus are currently pending. Since the declaring of a state of emergency in the border region with Belarus in September 2021 and legislation approved in October 2021 allowing a person entering “illegally” to be ordered to leave Polish territory based on a decision by the local Border Guard chief, Poland has pushed back large numbers of people mainly from the Middle East, Asia and Africa. While the government finds such practices conform with national and international law this is disputed not only by Polish courts and human rights office but also the UN’s human rights office and leading INGOs. A group of Kurdish Iraqi’s and Turks detained in a guarded center in Lesznowola after arriving to Poland from Belarus have been on hunger strike since early May to protest their detention conditions and the slow process of their asylum applications. According to figures provided by the Polish border guard a total of 5,143 people attempted to reach the country in an “unlawful way” in 2022, a decrease compared to 2021 when 17,500 attempts were made in October alone. JRS International points to the: “At least 24 people” who “lost their lives in attempts to cross the border from Belarus to the EU in 2021 and early 2022”.
A controversial bill to amend the State Border Act and related acts approved by the Estonian government in April continues to generate critique as it passes the legislative process. Council of Europe Commissioner for Human Rights, Dunja Mijatović recently called on parliamentarians to amend the bill “which would, among other things, allow pushbacks in situations of emergency”, the commissioner also stressed: “that designating certain border crossings as the only ones where asylum applications can be filed should not lead to violations of member states’ obligations under human rights instruments. Other concerns about the bill include the lack of suspensive effect of appeals against a decision to immediately return”. On 30 May UNHCR published extensive observations on the proposed legislation, among other reservations the UN agency states it: ”regrets that the draft Amendments lay down rules that may restrict the possibility for persons apprehended in the border area to seek asylum in Estonia. It is crucial to stress that the right to seek and enjoy asylum does not depend on the mode of arrival of an asylum-seeker to a country. In some cases, asylum-seekers simply do not have a choice but to flee without valid travel documents and enter the country without prior authorization of the authorities”. The Estonian Human Rights Center and ECRE member the Estonian Refugee Council sent a letter to the parliament in April warning of the dire implications of the proposed legislation. Director for the Estonian Refugee Council, Eero Janson states in a written comment to ECRE: “Estonia has historically relied heavily on international law – it has been the guarantor of survival and re-independence. It is very alarming that this steadfastness in support of international law is waning and day-to-day political currents and fears are starting to have its influence”. Janson further notes: “The amendment, once passed, would be infringing the 1951 Refugee Convention and the European Convention of Human Rights, not to mention EU’s asylum acquis”. Finally, Janson points to the fact: “that the EU has not taken any strong steps towards Lithuania and Poland who have already passed similar laws, is creating a regional domino effect where the universal right to asylum is being downgraded to right-to-asylum-when-it-suits-us”.
On 31 May the government of Estonia’s neighboring Baltic state Latvia granted almost one million Euro to the Ministry of Interior to cover reinforcing the guarding of the border of Latvia-Belarus.
For further information:
- ECRE, EU Eastern Borders: Ukraine Invasion Drives Displacement, Vast Majority of ECtHR Injunctions Granted, Calls for End to Polish Emergency Laws, February 2022
- ECRE, EU Eastern Borders: “Disastrous” Reception Conditions in Poland and Lithuania, Pushbacks Denounced, Uptick in Arrivals to Latvia Amid Fears of War in Ukraine, February 2022
This article appeared in the ECRE Weekly Bulletin. You can subscribe to the Weekly Bulletin here.