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  6. UN Human Rights Committee, A.B. and B.D. v. Poland, 21 July 2022, Comm. No. 3017/2017

UN Human Rights Committee, A.B. and B.D. v. Poland, 21 July 2022, Comm. No. 3017/2017

Louvain-La-Neuve

The systemic and consistent pushbacks at the Polish borders… This time before the UN Human Rights Committee.

Non-refoulement – Access to asylum procedures – risk assessment – art. 7 ICCPR – art. 13 ICCPR.

In the case of A.B. and B.D. v. Poland, the Human Rights Committee had to pronounce itself for the first time on the practice of “pushbacks” perpetrated at least since 2016 by Polish border guards at the Polish-Belarus border and which has been characterized as systemic and consistent. The Committee found that Poland violated articles 7 and 13 of the ICCPR, read alone and in conjunction with article 2(3) ICCPR. In particular, and like the ECtHR in similar cases, the Committee emphasized that persons in need of international protection who inform border guards of their requests for asylum have a right to see their claims thoroughly and individually assessed by the competent authorities, following a procedure demonstrating a sufficient degree of overall fairness. Articles 7 and 13 of the ICCPR imply a right to access asylum procedures and a correlative States’ obligation to properly assess the risks invoked.

Eugénie Delval

A. Facts and Views

1. Facts

The authors of the Communication are citizens of the Russian Federation, of Chechen origin. They fled their home country and arrived in Belarus in January 2017 with the intention of applying for asylum in Poland at the border between Belarus and Poland, in Terespol. While they told the Polish border guards that they wanted to apply for asylum and showed them several supporting documents as evidence of their fear of persecution, their request was not acknowledged. The guards simply stamped their passports with a denial-of-entry stamp indicating that their entry into Poland had been rejected as they did not hold valid visas. In the period from January to August 2017, the authors made more than 20 attempts to ask for asylum at the border. Their requests were even supported by a written motion for asylum in Polish that had been prepared by a Belarusian human rights defender as well as a written motion requesting asylum and written in Polish by the Helsinki Foundation for Human Rights. In addition, the applicants showed the Polish border guards the UN Human Rights Committee’s (hereafter, “the Committee”) letter of interim measures requesting Poland to accept the authors’ applications for international protection and to refrain from removing them from Polish territory. On each of those occasions, their claim for asylum was not recognized by border guards so that the claim was not passed on to the competent authorities for consideration. As a result of their not having valid travel documents and not being acknowledged as having claimed asylum, the authors were issued decisions by which they were denied entry into Poland and were immediately sent back to Belarus. Poland, for its part, affirmed that the authors had not made requests for international protection to the border guards and never expressed a wish to seek international protection but rather and only referred to economic or personal reasons for entering Poland.

Consequently, the authors submitted a communication to the Committee in which they claimed a violation by Poland of their rights under articles 7 (prohibition of torture or cruel, inhuman or degrading treatment or punishment) and 13 (procedural safeguards in the expulsion and deportation of aliens) of the ICCPR read alone and in conjunction with article 2(3) (right to an effective remedy) of the Covenant. In particular, the authors claimed that article 7 had been violated as their asylum claims were not acknowledged with the result that they did not pass on those requests to the competent authority for a substantive adequate and individual assessment. In this regard, the authors claimed that the failure to accept their repeated written and oral requests for asylum was a violation of Poland’s obligation to ensure that individuals are not subject to refoulement to any country in which they face ill-treatment. By returning them to Belarus without any assessment of their claims, the State party has repeatedly exposed them to the risk of refoulement to the Russian Federation, where they allegedly face torture or inhuman or degrading treatment. Ultimately, the authors claimed that their rights under article 7 were also violated through the inhuman and degrading treatment to which they were subjected at the border in Terespol. Furthermore, with respect to article 13 of the Covenant, the authors alleged that they were neither shown nor read the contents of interview records taken by the border guards so that they could not affirm or correct any mistakes or omission therein. Also, they claimed that they had no way to challenge the basis for the denial of their rights and that appeals against decisions of the border guards are not effective. Since their asylum claims were not registered, they were refused status as asylum seekers and were therefore denied the right to enter and remain on State party territory or to do so in order to have their legal status determined in contravention of article 13 (para. 9.2).

2. Views of the Human Rights Committee

In August 2017, the Committee granted interim measures of protection requesting Poland to (a) accept the authors’ applications for international protection and register them as asylum seekers; and to (b) refrain from removing them from its territory until the Committee had taken a decision on their complaint.

As to the admissibility of the communication, Poland asserted that since the authors did not make any claim for international protection at the border, article 7 of the Covenant does not apply and consequently neither does article 13 as there was no indication that they were asylum seekers or that their legal status was in doubt (para. 8.4). Article 7 of the Covenant prohibits torture or cruel, inhuman or degrading treatment or punishment, and article 13 provides that “an alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority”. The Committee however finds that the authors had sufficiently substantiated their claims that they presented information to the authorities at the Terespol border checkpoint which implicated the State party’s obligations under articles 7 and 13.

With respect to the examination on the merits, the Committee found that Poland violated articles 7 and 13 of the ICCPR, read alone and in conjunction with article 2(3) ICCPR. The Committee started by recalling its jurisprudence on the obligations of State parties towards aliens according to which States must respect and ensure the rights laid down in the Covenant to anyone within their power or effective control, even if not situated within the physical territory of the State (para. 9.4). Next, the Committee recalled several principles of its jurisprudence with respect to the protection of aliens. In particular, while rights under article 13 ICCPR protect only aliens lawfully on a State’ party’s territory, in certain circumstances, an alien may enjoy protection under the Covenant, even in relation to entry or residence, when, for example, considerations of non-discrimination or the prohibition of inhumane or degrading treatment arise, as in the present case (para. 9.4). Additionally, the Committee recalled that States have an obligation not to extradite, deport, expel or otherwise remove a person from their territory where there are substantial grounds for believing that there is a real risk of irreparable harm, including both physical pain and mental anguish, such as is contemplated under article 7 of the Covenant, either in the country to which removal is to be affected or in any country to which the person may subsequently be removed (para. 9.5).

Against this background, the Committee found that the authors raised issues before Polish border guards that implicated their rights under article 7 of the Covenant. Therefore, the Committee concluded that the authorities’ refusal to recognize the authors’ requests for asylum and consequently denying them the opportunity to have the merits of their claims assessed amounted to a failure by Poland to discharge its obligations under article 7. It found that in denying the authors the opportunity to have their protection claims duly considered and denying them the right or opportunity to challenge those denials, including the failures to provide access to legal assistance, to produce the interview notes either at the time of the expulsion decision or thereafter and to offer an effective remedy, the State party also failed to afford the authors the procedural safeguards necessary to avoid arbitrariness and to provide effective redress in violation of article 2(3), read in conjunction with article 7 of the Covenant (para. 9.5).

Additionally, the Committee recalled its jurisprudence under its General Comment no. 15 (1986) on the position of aliens under the Covenant, in which it affirmed that, if the legality of an alien’s entry or stay is in dispute, any decision on this point, leading to his expulsion or deportation, ought to be taken in accordance with article 13 ICCPR. Here, the Committee found that the decision of the Polish border guards to deny the authors their status as asylum seekers or individuals whose legal status was in doubt was taken arbitrarily, without acknowledging or assessing their requests for international protection. Poland therefore also violated the authors’ rights under article 13 of the Covenant (para. 9.6).

B. Discussion

1. A Systemic “Pushback” Policy at the Polish Borders

The situation of the authors in the case of A.B. and B.D. sadly constitutes yet another illustration of a systemic and consistent practice, or policy, of “pushbacks” and non-admission of asylum seekers implemented by Poland at its external borders. In a report on means to address the human rights impact of pushbacks of migrants on land and at sea, the Special Rapporteur on the Human Rights of Migrants, Felipe González Morales, defined “pushbacks”, in the context of migration, as covering:

“various measures taken by States, sometimes involving third countries or non-State actors, which result in migrants, including asylum seekers, being summarily forced back, without an individual assessment of their human rights protection needs, to the country or territory, or to sea, whether it be territorial waters or international waters, from where they attempted to cross or crossed an international border” (para. 34).

The Rapporteur explains that “pushback” measures effectively result in the removal of migrants, individually or in groups, without any individualized assessment, and summarily aim at denying migrants access to a State’s territory of jurisdiction, to prevent disembarkation, to curb onward travel or to expel migrants to outside of its territory. Hence, “pushback” measures cover practices that can take place before an individual has entered a State’s territory, as well as within the State’s territory. “Pushback” measures ultimately deny migrants their fundamental rights by depriving them of access to protection and procedural safeguards defined in international and national law. Precisely, the Rapporteur mentions Poland as an example of a State which implemented a “consistent practice of returning people to Belarus” in relation to Russian asylum applicants from Chechnya (para. 61).

At least since 2016, numerous reports from NGOs (see e.g., here, here, here and here) as well as a report from Poland’s Ombudsman for Children, have indeed highlighted and denounced the fact that thousands of individuals in need of international protection are denied the possibility to lodge an application at the eastern border crossing points of Poland, in particular in Brest-Terespol between Belarus and Poland. For example, in 2015 a total of 17,376 decisions on the refusal of entry were issued by border guards at the Polish-Belarusian border, whereas in 2016 the number of refusals went up to 72,528. Third-country nationals’ repeated claims for protection at the border are not taken into consideration. Rather, these persons are denied access to asylum procedures in Poland and are simply “pushed back” to Belarus, without a proper assessment of their protection claims nor substantial chain refoulement risks.

As will be discussed below, it is clear under international human rights law that “pushback” measures go against the prohibition of torture and other forms of ill-treatment and its correlative protection against refoulement, and constitute prohibited collective expulsions.

2. The Findings of Other UN Treaty Bodies and of the European Court of Human Rights

Several other UN treaty bodies already raised concern about the “pushback” policy carried out by the Polish border guards at the Terespol checkpoint. With respect to the protection from refoulement, the Committee against Torture expressed concern “that persons in need of international protection are not always given access to the territory of Poland, in particular at the Terespol border crossing with Belarus and the Medyka border crossing with Ukraine, even in the case of vulnerable persons” (CAT/C/POL/CO/7, para. 25(a)). In this regard, the Committee first explained that Poland should ensure that it fully complies with its obligations under article 3 of the Convention against torture (norm of non-refoulement) and, secondly, that individuals under its jurisdiction receive appropriate consideration by the competent authorities and are guaranteed fair and impartial review by an independent decision-making mechanism on expulsion, return or extradition, with suspensive effect, and that such individuals have access to legal assistance. Thirdly, the Committee reiterated that Poland should refrain from engaging in pushbacks and refoulement. Hence, like the Human Rights Committee in the commented case, the Committee against Torture assessed measures of pushback against the prohibition of refoulement and its ensuing States’ obligation to adequately and individually assess one’s claim of protection. Likewise, the Committee on the Elimination of Racial Discrimination expressed its concern about “reports that asylum seekers have been denied entry to [Poland’s] territory or denied access to asylum procedures by border guards” (CERD/C/POL/CO/22-24, para. 23(b)).

In addition, the European Court of Human Rights (hereafter, “ECtHR”) also ruled on multiple instances in cases related to “pushbacks” perpetrated by Polish border guards and has, on each occasion, condemned Poland for violating the European Convention on Human Rights (hereafter, “ECHR”). The ECtHR recognized that there is a wider state policy of refusing entry to foreigners coming from Belarus, regardless of whether they were clearly economic migrants or whether they expressed a fear of persecution, of not accepting applications for international protection from persons presenting themselves at the border and of returning those persons to Belarus (D.A. and Others v. Poland, 2021, paras. 81–84; M.K. and Others v. Poland, 2020, paras. 208–210). It further recognized the existence, at the border checkpoints between Poland and Belarus, of “a systemic practice of misrepresenting statements given by asylum seekers in the official notes drafted by the officers of the Border Guard” (A.B. and Others v. Poland, 2022, para. 34).

In another similar case, this time against Lithuania, the ECtHR found that submission of asylum applications at the border must be accepted by border authorities and forwarded to a competent authority for examination and status determination, regardless of whether the applicants expressed their wish for asylum to border guards orally or in writing (M.A. v. Lithuania, 2018, para. 113). In the cases of D.A. and Others v. Poland, M.K. and Others v. Poland, and A.B. and Others v. Poland, the ECtHR ruled that “pushback” measures violate article 3 of the ECHR (prohibition of refoulement) and article 4 of protocol no. 4 to the Convention (prohibition of collective expulsions). From these provisions a right to ask for international protection at the border (either orally or in writing) and a right to access asylum procedures can be derived. In those cases, the ECtHR decided that these rights imply several positive and negative obligations. First, States are under a procedural obligation to properly and individually assess each claim of protection. Second, these rights entail a positive obligation to ensure the applicants’ safety, in particular by allowing them to remain within their jurisdiction until such time as their claims had been properly reviewed by a competent authority. Third, States are under a negative obligation not to send back the applicants to where the risks of ill-treatment stem from before such time as their allegations are thoroughly examined. And lastly, States have a positive obligation to allow access to their territory, pending an application for protection, when individual applicants allege that they may be subjected to ill-treatment, such as chain refoulement risks, if they remain on the territory of the neighboring State.

Finally, in addition to those international bodies, it is interesting to note that two Polish courts ruled that pushbacks of asylum seekers are unlawful and therefore overturned the border guards’ decision to send them back to Belarus (see here and here). In particular, the courts noted that the border guards failed to show that they had checked whether the persons sought to apply for international protection and failed to individually and thoroughly assess their claims.

3. Human Rights Committee: Pushbacks Violate Articles 7 and 13 of the ICCPR

The commented decision in the case of A.B. and B.D. v. Poland gave the Human Rights Committee its first opportunity to pronounce itself on situations involving the norm of non-refoulement beyond scenarios of extradition, deportation, or expulsion of aliens from within a State party’s territory (see, e.g., Judge v. Canada and X. v. Sweden). The Committee had already expressed concerns, in its Concluding Observations (CCPR/CO/80/LTU, para. 15), on the fact that asylum seekers were prevented from requesting asylum at the borders and recommended the State party to take measures to secure access for all asylum seekers to the domestic asylum procedure. The commented decision constitutes the first ever views issued by the Committee on “pushbacks” at the borders. Without much surprise, the Committee found that pushbacks violate States parties’ obligations under the prohibition of torture and other forms of ill-treatment and its correlative principle of non-refoulement (article 7 ICCPR) as well as the procedural safeguards that must prevail in the expulsion and deportation of aliens (article 13 ICCPR).

With respect to article 7 of the Covenant and its ensuing norm of non-refoulement, the Committee explained that because the authors have raised issues before the border guards which precisely implicated their rights under article 7, and in particular informed the guards of their wish to apply for asylum as they feared an imminent, serious and personal threat in Russia (para. 9.2), Poland’s obligations under article 7 were triggered. Poland thus had to recognize the authors’ requests for asylum and adequately assess their claims. In fact, it is constantly recognized by the Committee that “where one of the highest values protected by the Covenant, namely the right to be free from torture, is at stake, the closest scrutiny should be applied to the fairness of the procedure applied to determine whether an individual is at a substantial risk of torture” (Ahani v. Canada, para. 10.6). The States’ obligation of non-refoulement therefore necessarily entails a procedural risk assessment obligation, including when claims of protection have been expressed at the border. It is true that the Covenant does not recognize, as such, the right of aliens to enter or reside in the territory of a State party—since it is in principle a matter for the State to decide who it will admit to its territory. However, in certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example, when considerations of prohibition of inhuman treatment arise (General comment no. 15, para. 5; A.B. and B.D. v. Poland, para. 9.4). When persons invoke risks of ill-treatment contrary to article 7 of the Covenant and express their intent to apply for international protection, they hold a right to access asylum procedures and to have their claims and requests be thoroughly assessed.

Additionally, article 13 of the ICCPR regulates the procedure in case of expulsion or deportation. By allowing only those carried out “in pursuance of a decision reached in accordance with law”, its purpose is clearly to prevent arbitrary expulsions. Also, by entitling each alien to an individual decision in his own case, the Committee has indicated that article 13 enshrines an implicit prohibition of collective or mass expulsions (General Comment no. 15, para. 10). In this respect, the Committee explains that while article 13 protects aliens lawfully on the territory of a State party, “if the legality of an alien’s entry or stay is in dispute, any decision on this point leading to his expulsion or deportation ought to be taken in accordance with article 13” (General comment no. 15, para. 9). This means that, when persons in need of international protection express their request to apply for international protection at the border of a State party, the authorities’ decision to deny them the status as asylum seekers or persons whose legal status was in doubt as a result of “pushing them back” (by refusing to consider their claims) without acknowledging or assessing their requests for protection is definitely taken arbitrarily in violation of article 13 (A.B. and B.D. v. Poland, para. 9.6). In other words, article 13 imposes on States parties an obligation to individually assess claims for protection made at their borders, through a procedure which presents sufficient procedural safeguards against arbitrariness. Contrary to the ECtHR however, the Human Rights Committee did not mention whether persons in need of international protection have a right to enter and remain on the territory of the concerned State party until such time as their claims had been properly reviewed when questions of security arise (in its interim measures, it nonetheless asked Poland to refrain from removing the authors until the Committee had decided on their complaint).

4. Conclusion

Since at least 2016, Poland is implementing what has been characterized as a systemic and consistent practice of preventing persons in need of international protection who present themselves at the Polish-Belarus border from lodging asylum applications. Through these “pushbacks”, third-country nationals’ requests for international protection are not taken into consideration and are not subject to any adequate and individualized assessment. Overall, thousands of persons have been denied access to asylum procedures and have summarily been returned to Belarus.

Those pushback measures have been denounced by several NGOs, by the Committee against torture, and by the Committee on the Elimination of Racial Discrimination, and the issue has notably been brought before the ECtHR on multiple occasions. The case of A.B. and B.D. v. Poland is the first one related to pushbacks brought before the Human Rights Committee. The Committee found that pushbacks violate the rights of persons in need of international protection as arising under articles 7 (prohibition of torture or cruel, inhuman or degrading treatment or punishment) and 13 (procedural safeguards in case of expulsion) of the ICCPR. In particular, and like the ECtHR in similar cases, the Committee emphasized that persons in need of international protection who inform border guards of their requests for asylum, and thereby raise claims under article 7 of the Covenant, have a right to have their claims thoroughly and individually assessed by the competent authorities, following a procedure demonstrating a sufficient degree of overall fairness. Therefore, persons in need of international protection who present themselves at the border of a State party and express their intent to apply for asylum have a right to access asylum procedures and to have their claims seriously and individually examined.

C. Suggested Reading

To read the case: UN Human Rights Committee, A.B. and B.D. v. Poland, 21 July 2022, Comm. no. 3017/2017.

Case law:

Doctrine:  

To cite this contribution: E. Delval, “The systemic and consistent pushbacks at the Polish borders… This time before the UN Human Rights Committee”, Cahiers de l’EDEM, April 2023.

Publié le 23 mai 2023