The Provincial Administrative Court in Bialystok recognized the return by the Border Guard to the border line with Belarus of a foreigner from Ethiopia who crossed it illegally as an “ineffective act”. The judgment is not final. Marta Górczyńska, a lawyer from the Helsinki Foundation for Human Rights, comments that the ruling shows that the “pushback” was unlawful.
On Tuesday (May 30), the Provincial Administrative Court in Białystok considered the complaint of a citizen Ethiopia for an activity for which the commander of the Border Guard post in Białowieża is formally responsible.
According to the documents submitted to the WSA by the migrant’s attorney, on February 4, 2023, he was detained in Hajnówka by the police and handed over to the Border Guard, and then returned to Belarus.
They were supposed to return them to Belarus without first transporting them to the Border Guard facility
According to his account, the day before he got to Poland with a group of other Ethiopians and Yemenis. There was also a young woman among them who started to have serious health problems on the Polish side and could not go further.
Then he and another man went to Hajnówka to look for help for her. There they had been arrested. According to the Ethiopian, the men informed the Polish services that they needed quick medical help for their companion. The foreigners were to be returned to Belarus without being transported to the Border Guard facility and without issuing any documents.
The Border Guard argued that there was no evidence that such a situation had occurred
The Provincial Administrative Court in Białystok accepted the complaint of the Ethiopian’s attorney and considered the return action ineffective.
Justifying this judgment, Judge Rapporteur Anna Bartłomiejczuk pointed out that once again the Border Guard defended itself with the argument that there was no objective evidence that such a situation (applicant’s stay in Poland and the application of a return order) had taken place at all. However, the Provincial Administrative Court found the foreigner’s version and the evidence gathered to support it credible and sufficient.
The judge also pointed out that the name of this migrant also appears in the documentation of the case of the death of a 28-year-old Ethiopian citizen, who became interested in, among others, Ombudsman. The woman’s body was found on February 12 in a forest near Hajnówka. The investigation into the circumstances of this death is still ongoing.
The court also referred to the Geneva Convention
– The action under appeal was made in violation of, and more precisely with the omission of, hierarchically higher legal norms – said Judge Bartłomiejczuk in the verbal justification of the judgment.
She listed the provisions of the Act on granting protection to foreigners in the territory of the Republic of Poland in the event that the complainant expressed a declaration of applying for international protection, as well as the provisions of the Act on foreigners if there was no such declaration (in this case there is no evidence that the Ethiopian made a declaration).
She emphasized that the provision of the border regulation issued by the Minister of Internal Affairs and Administration regarding the so-called pushbacks cannot be used “automatically”, without prior implementation of procedures resulting from laws, i.e. hierarchically higher regulations. She said that the application of this regulation resulted in the fact that it was not possible to examine the case individually in accordance with the so-called the principle of non-refoulement from the Geneva Convention – this is the principle regarding refugees, requiring an individual assessment of the situation.
The judgment is not final
The court agreed with the applicant’s position that the return procedure (referred to in the Border Regulation MIA) is contrary to this principle.
– There is no doubt that Belarus, where foreigners detained by the border services on the Polish-Belarusian border are returned, is not a safe country for people returned there – judge Bartłomiejczuk added.
She stressed that no national laws or circumstances such as migration crisis at the external border of the EU, cannot exclude the obligation for a Member State (i.e. Poland) to apply the principle resulting from the Geneva Convention, even to foreigners crossing the border illegally.
– The interpretation of the principle of non-refoulement on the domestic basis should aim at balancing the need to protect the state border and respecting the fundamental rights of foreigners. All the more so because these rights result from the Polish legal order – added the judge.
She also recalled the provisions of the Constitution of the Republic of Poland concerning the right of foreigners to asylum in Poland.
The judgment is not final. It can be appealed against to the Supreme Administrative Court.
Lawyer: “pushbacks” are incompatible with Polish administrative procedure
– The court’s recognition of the action taken by the Border Guard as ineffective means that this action should not have happened, i.e. it was illegal – says Marta Górczyńska, a lawyer from the Helsinki Foundation for Human Rights, in an interview with tvn24.pl.
It adds that in many other cases, such a ruling would result in a reversal order.
– In the case of migrants who are subject to the so-called pushbacks, the legal effects cannot be reversed. Because foreigners are already in Belarus or in other countries. Nevertheless, such persons may apply, but in a different mode, for compensation or damages, emphasizes the lawyer.
He claims that the ruling of the Provincial Administrative Court also means that the “pushback” was incompatible with the Polish administrative procedure.
– The court clearly pointed out that the regulation of the Minister of Internal Affairs and Administration, on the basis of which the Border Guard allows “pushbacks”, is an act of law hierarchically lower than the Act on Foreigners or the Constitution of the Republic of Poland and international law. And the procedure is that if a foreigner applies for international protection in Poland, the Border Guard is obliged to accept such an application and send it to the Office for Foreigners. Until the application is considered, such a person stays in a center for foreigners, he explains.
Lawyer: The Border Guard should initiate proceedings
However, the situation is different when a foreigner does not apply for international protection in Poland.
– If someone is detained and there are all grounds to consider that he has crossed the border illegally, the Border Guard should initiate the so-called return procedure. Only the initiation of such proceedings gives a chance to assess the overall situation in which the foreigner found himself. In the course of such proceedings, the humanitarian aspect should be examined. That is to find out, for example, whether such a person does not have a family in Poland or in another EU country and whether their health allows them to be sent back from Poland.
He adds that the Convention on the Rights of the Child, for example, should also be taken into account, which states that the child’s best interests must be taken into account when making a decision on a child.
– Only when the proceedings are completed and it turns out that the foreigner must leave the territory of Poland and he does not want to do so voluntarily, the Border Guard may apply coercion. But, of course, not by leaving such a person at the border line in the forest – because such a procedure is not mentioned in any provisions of international law – but by leaving them at the border crossing. Or being sent back by plane to the country of origin. As long as nothing threatens such a person in this country and the authorities of that country agree to the return of their own citizen. Such returns are carried out by the European Union, which can financially support such activities. Even the use of simplified procedures may not result in the exclusion of procedural guarantees and the foreigner being escorted to the forest outside the border crossing point, explains the lawyer.
The court found the version presented by the foreigner to be true
In the case in question, the Border Guard claims that there is no objective evidence that the Ethiopian stayed in Poland and was turned back by the guards. Nevertheless, the court found the version presented by the foreigner to be true, which means that, according to the court, the “pushback” took place.
– However, even if the Border Guard admitted that it had used “pushback”, in my opinion the verdict would be the same and the return of the foreigner would be considered ineffective, which results from all the premises I mentioned earlier – our interlocutor points out.
Last year, the case of three Iraqis was considered
This was not the first judgment passed by the Provincial Administrative Court in Białystok as a result of a complaint against the use of the so-called pushback against migrants on the border with Belarus. With the same legal argumentation, the court found the “pushback” ineffective, among others three Iraqis, returned to the border with Belarus in September 2021.
Complaints were then lodged not only by the foreigners themselves, but also by the Commissioner for Human Rights, who in October published the reasons for this judgment.
Operation “Sluice” – a crisis caused by Lukashenko
The migration crisis on the borders of Belarus with Poland, Lithuania and Latvia was caused by Alyaksandr Lukashenko, who is accused of waging a hybrid war. It consists in an organized transfer of migrants to the territory of Poland, Lithuania and Latvia. Over the 28 years of his rule, Lukashenko has repeatedly threatened Europe with weakening border controls.
Tadeusz Giczan, journalist of the Belarusian opposition channel Nexta, described the action of bringing migrants to Belarus from the Middle East or Africa to cause a migration crisis. He explained that the Belarusian services were conducting the “Sluice” operation invented 10 years ago in this way. Under the guise of trips to Minsk, promising transfer to Western Europe, Lukashenko’s regime brought thousands of migrants to Belarus. Then he transports them to the borders of EU countries, where Belarusian services force them to cross them illegally. This operation is ongoing.
Read more at tvn24.pl: Crisis on the Polish-Belarusian border
Main photo source: Michal Kosc/Forum