ECtHR, 4 April 2024, Sherov and Others v. Poland, Appl. No. 54029/17 and 3 Others

Collective Expulsions – Pushbacks – Non-Refoulement – Prohibition on Collective Expulsion of Aliens – ECtHR – Poland – Lithuania – Latvia.

On 4 April 2024, the European Court of Human Rights delivered its judgment in the case of Sherov and Others v. Poland. With this decision, the ECtHR added a new chapter (the latest thus far) into its rapidly growing jurisprudence on the summary removal of migrants and asylum seekers attempting to access the territory of the European Union through the Eastern border, and appeared to confirm a rights-affirming trend at the Eastern borders initiated in M.K. and Others in July 2020. This is something to be welcomed, particularly following the Grand Chamber judgment in N.D. and N.T. v. Spain in February 2020. However, only two weeks after delivering its judgment in Sherov, the Court relinquished to the Grand Chamber the case of C.O.C.G. and Others v. Lithuania, potentially signaling an upcoming change of direction.

Clara Bosch March

A. Facts and Ruling

On 4 April 2024, the European Court of Human Rights (“ECtHR”) delivered its judgment in the case of Sherov and Others v. Poland. With this decision, which shall be examined in detail below, the ECtHR added a new chapter (the latest thus far) into its rapidly growing jurisprudence on the summary removal of migrants and asylum seekers attempting to access the territory of the Member States of the European Union (EU) through the Eastern border.

The case stemmed from the joint applications of four individuals who had fled Tajikistan, and who had attempted to seek asylum at two different border crossing points along the Polish-Ukrainian border. On the multiple occasions they presented themselves at the border crossing points (up to fourteen times in the case of one of the applicants) between December 2016 and January 2017, they clearly stated their wish to seek international protection, as they were at risk of political persecution in their home country. However, they were systematically issued refusal-of-entry decisions stating that they did not have the necessary documents to enter into Poland and that “they had not asserted any risk of persecution”, but that they were “in fact trying to emigrate for economic or personal reasons” (para. 6).

In the light of the above, the applicants submitted various complaints before the ECtHR regarding the prohibition of torture, inhuman or degrading treatment under Article 3 ECHR, the prohibition of collective expulsion of aliens under Article 4 of Protocol No. 4 ECHR and a lack of an effective remedy under Article 13 ECHR in conjunction with both Article 3 ECHR and Article 4 of Protocol No. 4 ECHR. The seven judges of the First Section of the Chamber to which this case was allocated unanimously found a violation of all three provisions with respect to all applicants, and condemned Poland to pay EUR 13,000 to each of them in respect of non-pecuniary damage.[1]

B. Discussion

1. Background

– An Ever-Growing Jurisprudence Against Poland

Since 2020, Poland has been brought before (and unanimously condemned by) the ECtHR on six occasions due to the summary removal of migrants and asylum seekers between 2016 and 2017. This has placed it at the top of all the Council of Europe Member States in number of violations in this context, being closely followed by Hungary, with five violations. The first of those cases was M.K. and Others v. Poland, which was decided in July 2020. This case stemmed from the joint applications of thirteen Russian nationals from Chechnya, including several children, who had attempted to seek international protection at the Polish-Belarusian border on multiple occasions. However, every time they did so (around 30 times in the case of M.K.), the Polish authorities issued them with administrative decisions which significantly distorted their statements (insofar as they presented them as “economic migrants”, as opposed to “asylum seekers”), and refused them entry into Poland “on the grounds that they did not have any documents authorising their entry […] and that they had not stated that they were at risk of persecution in their home country” (paras. 13, 29).

Based on the independent reports submitted before it, the Court considered that the procedure described above was a “consistent practice” of the Polish authorities aimed at summarily removing any foreigners who attempted to cross from Belarus, whether they were economic migrants or asylum seekers, while making it appear as being the result of an individual examination (para. 208). Such practice consisted in holding “very brief interviews” in which the migrants’ statements were misrepresented and used to issue formal refusal-of-entry decisions and return them to Belarus (para. 208). In the light thereof, the Court considered that the decisions concerning the applicants had not been taken “with proper regard” to their individual circumstances, and that they were “part of a wider policy of not receiving applications for international protection from persons presenting themselves at the Polish-Belarusian border” (para. 210). As a consequence, it reached a unanimous finding of violation of Articles 3 ECHR, Article 4 of Protocol No. 4 ECHR and Article 13 ECHR in conjunction with both.

The following four cases (D.A. and Others v. Poland, decided in July 2021, A.I. and Others v. Poland and A.B. and Others v. Poland, both decided in June 2022, and T.Z. and Others v. Poland, decided in October 2022) were all based on very similar facts and circumstances. In fact, all of them concerned the summary removal of asylum seekers who had attempted to enter regularly into Poland by seeking international protection at a border crossing point along the Polish-Belarusian border. The only difference between them was that the applicants in D.A. and Others came from Syria, while the ones in the remaining three cases came from Chechnya. For this reason, T.Z. and Others, the last of those cases, was no longer decided by a chamber of seven judges, as has been noted by Francesco Gatta, but by a committee of three judges. This is the formation that deals with “repetitive” cases, or with cases which raise an issue “on which the Court has already ruled in a number of cases” (see "Your application to the ECHR"). In all of them, the Court reached unanimous findings of violation concerning the same provisions as in M.K. and Others (i.e. Articles 3 ECHR, Article 4 of Protocol No. 4 ECHR and Article 13 ECHR). In other words, as has also been noted by Francesco Gatta, that Poland summarily and collectively removed migrants and asylum seekers who attempt to enter into its territory was an established fact.

– The Specificities of Sherov and Others v. Poland

As already seen, the first five cases against Poland discussed above concerned the removal of applicants who had attempted to cross the Polish-Belarusian border, and who had been sent back to Belarus. The latter aspect – the country to which the applicants had been removed – was relevant for two reasons. First, Belarus was not a party to the Convention. Second, it was not considered as a safe country for asylum seekers, amongst other reasons, because of the risk of “chain refoulement”. According to the official statistics that were discussed in M.K. and Others, all the applications for international protection submitted by Russian nationals in Belarus since 2004 had been refused (para. 155). There were also reports of a few instances in which Russian nationals who had either applied for international protection there or who had been removed to Belarus after being refused at the Polish-Belarusian border had been deported to Russia or even handed over directly to the Russian authorities (para. 155). Similarly, in D.A. and Others, the applicants alleged that their removal to Belarus exposed them to “chain refoulement” to Syria.

However, the applicants in Sherov had not been removed to Belarus, but to Ukraine. This difference could have played a role. Indeed, Ukraine was a State party to the Convention. Furthermore, the applicants had also argued that Ukraine was not a safe country for them, although they did not seem to provide any official statistics which supported this claim (see para. 36). As will be seen below, the Court eventually found that “this difference did not exempt the Polish authorities from conducting a thorough examination of the applicants’ situation” (para. 48). Indeed, the Court noted that “in all cases of removal of an asylum seeker from a Contracting State to a third intermediary country without examination of the asylum request on the merits, regardless of whether or not the receiving third country is an EU member State or a State Party to the Convention, it is the duty of the removing State to examine thoroughly the question of whether or not there is a real risk of the asylum seeker being denied access, in the receiving third country, to an adequate asylum procedure protecting him or her against refoulement” (para. 45, our emphasis). Yet, the fact that the applicants were removed to Ukraine instead of Belarus might have been the reason why the case was adjudged by a chamber of seven judges, as opposed to by a committee of three.

2. Reasoning of the Court

– Article 3 ECHR

In the first place, the applicants claimed they had been subjected to a violation of Article 3 ECHR for three reasons: (1) they had been denied access to the asylum procedure in Poland; (2) they had been sent back to Ukraine, a country without a proper asylum system and from which they might be subjected to “chain refoulement” to Tajikistan; and (3) the poor reception conditions for refugees in Ukraine, which exposed them to a risk of inhuman and degrading treatment (para. 34). The Government, however, refuted the above claims and argued that “at no point had any of the applicants given reasons that would have justified the granting of international protection” (para. 39) or “made any reference to treatment in breach of Article 3 […] or to any risk of being subjected to such treatment while in Ukraine” (para. 40). According to them, the fact that one of the applicants was granted international protection after he presented himself again with his family at the border crossing point at a later stage and actually gave reasons that justified the granting of international protection, instead of simply using “the key word ‘asylum’” (para. 14), proved this point (para. 39).

The Court began its reasoning by noting that “where a Contracting State seeks to remove an asylum seeker to a third country without examining the asylum request on the merits, the main issue for the expelling authorities is whether or not the individual will have access to an adequate asylum procedure in the receiving third country” (para. 44). Therefore, every time a Contracting State removed an asylum seeker to a third country in these circumstances, “regardless of whether or not the receiving third country […] [was] an EU member State or a State party to the Convention”, the removing State had the obligation to “thoroughly” examine whether the asylum seeker would have access there to “an adequate asylum procedure protecting him or her against refoulement” (para. 45). Under Article 3 ECHR, in case the guarantees in this regard were “insufficient”, the asylum seeker should not be removed (para. 45).

Based on the above, the Court considered that, in order to fulfill their procedural obligations under Article 3 ECHR, the Polish authorities “should either have allowed the applicants to remain in Polish territory pending the examination of their asylum application or, before sending them back to Ukraine, they should have examined whether that State was safe for the applicants and whether they would have access to an adequate asylum procedure there” (para. 48). Noting that the applicants were clearly removed to Ukraine without examining whether this country was safe for them, had an adequate asylum procedure or exposed the applicants to a risk of violation of Article 3 ECHR, the Court eventually found that Poland had violated the procedural limb of Article 3 ECHR (para. 50).

– Article 4 of Protocol No. 4 ECHR

The applicants claimed that the same “wider policy” of not accepting applications for international protection that the Court had “unmasked” at the Polish-Belarusian border in M.K. and Others was also being conducted at the Polish-Ukrainian border (para. 53). As such, they alleged to have been subjected to a violation of Article 4 of Protocol No. 4 ECHR, similar to the applicants in all prior cases against Poland. The Polish Government limited itself to submit that “each time the applicants tried to enter Poland, they were interviewed […] and received individual decisions” (para. 59), and that “every decision […] had been based on an individual assessment of their situation” (para. 54). However, the Court noted that “during this procedure[,] the applicants’ statements that they wished to apply for international protection were disregarded” and that “the individual decisions […] issued in respect of each applicant […] did not properly reflect the reasons given by the applicants to justify their fear of persecution” (para. 59). This led it to conclude that the refusal-of-entry decisions had not been taken with “proper regard” to the individual situation of each applicant and, as the applicants had argued, that they were part of the same “wider policy” mentioned above (para. 61) at the Polish-Ukrainian border. As a consequence, it also found a violation of this provision.

– Article 13 ECHR (in conjunction with Article 3 ECHR and Article 4 of Protocol No. 4 ECHR)

Finally, the Court addressed the applicants’ claims under Article 13 ECHR. Having regard to the fact that the removal of the applicants to Ukraine had amounted to a violation of the procedural limb of Article 3 ECHR and of Article 4 of Protocol No. 4 ECHR, the applicants’ claims under Article 13 ECHR in relation to both provisions were, in principle, “arguable” (para. 67). Considering, as it had already considered in M.K. and Others, that “an appeal against a refusal of entry and a further appeal to the administrative courts were not effective remedies within the meaning of the Convention because they did not have automatic suspensive effect”, and that the Polish Government had not indicated any other remedies which could have satisfied the criteria of Article 13 ECHR, it found an additional violation of the latter in conjunction both with Article 3 ECHR and Article 4 of Protocol No. 4 ECHR (para. 68).

3. The Calm Before the (New) Storm?

– The Upcoming Grand Chamber Judgment in C.O.C.G. and Others v. Lithuania

With the judgment in Sherov, the ECtHR appears to confirm a rights-affirming trend at the Eastern borders initiated in M.K. and Others in July 2020. This is particularly significant – and “encouraging” – after the jurisprudential U-turn of the Grand Chamber in N.D. and N.T. v. Spain in February 2020 (see analyses by Luc Leboeuf and Clara Bosch March), which represented a significant setback for migrants’ rights, in particular as far as concerns the prohibition of collective expulsion of aliens under Article 4 of Protocol No. 4 ECHR. However, only a couple of weeks after delivering its judgment in Sherov, the Court announced the relinquishment to the Grand Chamber of C.O.C.G. and Others v. Lithuania, one of the more than 30 cases currently pending before the ECtHR against Poland, Lithuania and Latvia for the summary removal of migrants and asylum seekers to Belarus between 2021 and 2023.[2]

The timeframe of those removals is not unimportant. Indeed, some of those 30 cases (e.g. I.A. and Others v. Poland and M.M. and Others v. Poland) must be directly read in the context of the crisis between Belarus and the EU which began in the summer of 2021, when the EU imposed sanctions on Belarus in response to the latter’s 2020 fraudulent elections, human rights abuses and complicity with the Russian invasion of Ukraine. As a response, Belarus created an artificial migration crisis in the EU by issuing tourist visas to thousands of individuals from crisis regions in the Middle East, facilitating their arrival into Belarus and then forcing them to cross the borders of Poland, Lithuania and Latvia irregularly. The Polish, Lithuanian and Latvian authorities responded by summarily removing the migrants back to Belarus and by coming up with emergency measures and regulations to “justify” their actions domestically. Belarus, in turn, responded by pushing the migrants back again into the EU, engaging into some sort of inhumane “ping-pong game” with the migrants, who were forced to “repeatedly wander in minus temperatures” in winter, leading to serious injuries, amputations and even deaths.

However, not all migrants who happened to get “trapped” at the EU-Belarus border came from the Middle East or had even reached Belarus in the same fashion. The applicants in C.O.C.G., in fact, were four Cuban nationals who had fled their country in 2021 due to fear of political persecution. They initially traveled to Russia, where they stayed for a few months. Unable to settle in Russia (where they were constantly harassed and threatened with deportation to their country of origin by the authorities), at the end of March 2022, they decided to travel to Belarus with the intention to reach Lithuania and seek asylum there. They attempted to cross the Lithuanian border on foot on several occasions over the first ten days of April 2022. The first time they did so in a spontaneous manner, without being forced by the Belarusian authorities. However, they were prevented from submitting their asylum applications and forcibly pushed back at gunpoint into Belarus by Lithuanian border guards, who left them in the middle of the forest surrounding the green border, very far away from any official border crossing point. After this first pushback, the applicants found themselves in the hands of the Belarusian border guards, who repeatedly forced them to cross the border into Lithuania in an irregular manner, until – thanks to an interim measure request by the ECtHR – they were finally allowed to apply for asylum in Lithuania. In July 2022, they alleged before the ECtHR a number of complaints under the same provisions that were brought forward in the Polish cases discussed above, plus Article 2 ECHR (right to life). A few months later, they were all granted asylum and permanent residence permits in Lithuania.

The fact that the chamber to which C.O.C.G. was initially assigned has now relinquished jurisdiction in favor of the Grand Chamber should not be taken lightly for two main reasons. First, the relinquishment of jurisdiction to the Grand Chamber, which is regulated under Article 30 ECHR, is quite an uncommon phenomenon. As has been noted by Hannah Katz, in 2023, only two cases were channeled in this way to the Grand Chamber. Second, and most importantly, a relinquishment in favor of the Grand Chamber always signals a significant development. Indeed, according to Article 30 ECHR, a chamber can only relinquish jurisdiction to the Grand Chamber at any moment before delivering judgment “[w]here a case […] raises a serious question affecting the interpretation of the Convention or the Protocols thereto, or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court”. In other words, there may be either a departure from (or, at least, an adaptation to different circumstances of) the current interpretation of the provisions at stake, or a potential U-turn in the jurisprudence.

Admittedly, a relinquishment to the Grand Chamber does not necessarily signal a restrictive interpretation of the ECHR. In fact, the first (and the last) time that the Court resorted to this procedure in the context of summary removal of migrants and asylum seekers was in the landmark judgment of Hirsi Jamaa and Others v. Italy, which represented a huge achievement in the protection of migrants’ rights. In the same way that the Grand Chamber “adapted” therein the application of Article 3 ECHR and Article 4 of Protocol No. 4 ECHR to a novel scenario (i.e. the interception and summary removal of migrants on the high seas), the Court could now “adapt” the interpretation of the relevant Convention rights to other circumstances (in this case, the instrumentalization of migrants by third countries). This would make sense – and would be the expectable thing from a human rights court – considering that the applicants in these cases are victims of a never-ending “loop” of human rights violations from both ends, and for whom the only hope is the ECtHR.

Yet, a restrictive interpretation cannot be precluded. In fact, as has been discussed by Ronan O'Fathaigh, relinquishment to the Grand Chamber has sometimes been used in the past “for finding [G]overnment action consistent with the Convention”. This was the case, for instance, in S.A.S. v. France, on the French face-veil ban, or in Animal Defenders International v. the United Kingdom, on political expression bans. If the Grand Chamber followed a similar thread, it could well come up with a new blow to migrants’ rights at Europe’s external borders by deciding, for instance, to apply mutatis mutandis the “N.D. and N.T. exception”. In fact, it would be relatively easy for it to do so. After all, the N.D. and N.T. exception established that the Contracting States which were part of the Schengen border – such as Poland, Lithuania and Latvia, for this matter – had to provide for effective means of legal access into their territory. In order to benefit from the protection of Article 4 of Protocol No. 4 ECHR, migrants had to make use of such means of legal access, unless they had “cogent reasons” for not doing so “which were based on objective facts for which the respondent State was responsible” (para. 201, our emphasis). In C.O.C.G., the applicants could not access the official border crossing points because of a number of objective reasons, partly dependent on the Lithuanian authorities’ behavior, partly dependent on geographical factors, and partly dependent on the Belarusian officials forcing them to cross irregularly (see this Amnesty International Report, para. 39). The Grand Chamber may decide to highlight only the latter factual element to come to the conclusion that Lithuania was not “directly responsible” for the lack of use of the means of legal entry into its territory, and argue that those actions were rather caused by Belarus.

In doing so, the Grand Chamber could simply reassert the application of the above-mentioned ”exception” in this context and break the human-rights-friendly approach that it had generally maintained (though with some exceptions) at the Eastern borders since 2020. In fact, this is a likely scenario, considering the political backlash that a verdict of violation would certainly have – as it might be perceived as subjugating the EU to the “hybrid attacks” from hostile neighbors – and the Court’s track record of making “enormous concessions” before States’ pressure in its migration-related jurisprudence. In the same way, the Grand Chamber could also choose to “adapt” the N.D. and N.T. exception, and remove (or mitigate) the requirement of the cogent reasons being “based on objective facts for which the respondent State was responsible”, so that Lithuania, Poland and Latvia could be held accountable for their actions at their borders. After all, whether the latter are a response to a third country’s actions or not, they have an impact on human rights that the Court cannot, or should not, turn a blind eye on. 

– Concluding Remarks

Only time will tell which way the Court will eventually take. As seen above, there are, at least, two (very different) possible paths, and the Court could choose to walk any of them. One thing is however certain: the outcome of this case will determine whether Sherov becomes only one more episode of the apparently more migrants-friendly jurisprudence at the Eastern borders of Europe, or whether it will be once remembered as the last moment of calm before the (new) storm.

Acknowledgements: I am very grateful to Dr. Daria Sartori, representative of the applicants in the case of C.O.C.G. and Others v. Lithuania, for providing me with the factual details of the case and for her valuable comments on an earlier version of this draft.

C. Suggested Reading

To read the case: ECtHR, 4 April 2024, Sherov and Others v. Poland, Appl. Nos. 54029/17 and 3 others.

Case Law (in order of appearance):

• ECtHR, 23 July 2020, M.K. and Others v. Poland, Appl. Nos. 40503/17, 42902/17 and 43643/17;
• ECtHR, 8 July 2021, D.A. and Others v. Poland, Appl. No. 51246/17;
• ECtHR, 30 June 2022, A.I. and Others v. Poland, Appl. No. 39028/17;
• ECtHR, 30 June 2022, A.B. and Others v. Poland, Appl. No. 42907/17;
• ECtHR, 13 October 2022, T.Z. and Others v. Poland, Appl. No. 41764/17;
• ECtHR (GC), 13 February 2020, N.D. and N.T. v. Spain, Appl. Nos. 8675/15 and 8697/15;
• ECtHR, Case communicated on 2 December 2022, C.O.C.G. and Others v. Lithuania, Appl. No. 17764/22;
• ECtHR, Relinquishment to the Grand Chamber of the case C.O.C.G. and Others v. Lithuania, Appl. No. 17764/22, press release from 17.04.2024;
• ECtHR, Case communicated on 27 September 2021, R.A. and Others v. Poland, Appl. No. 42120/21;
• ECtHR, Relinquishment to the Grand Chamber of the case R.A. and Others v. Poland, Appl. No. 42120/21, press release from 26.06.2024;
• ECtHR, Case communicated on 3 May 2022, H.M.M. and Others v. Latvia, Appl. No. 42165/21;
• ECtHR, Relinquishment to the Grand Chamber of the case H.M.M. and Others v. Latvia, Appl. No. 42165/21, press release from 04.07.2024;
• ECtHR, Case communicated on 5 April 2023, I.A. and Others v. Poland and 3 other applications, Appl. No. 53181/21;
• ECtHR, Case communicated on 5 April 2023, M.M. and Others v. Poland and 2 other applications, Appl. No. 2509/22;
• ECtHR (GC), 23 February 2012, Hirsi Jamaa and Others v. Italy, Appl. No. 27765/09;
• ECtHR (GC), 1 July 2014, S.A.S. v. France, Appl. no. 43835/11;
• ECtHR (GC), 22 April 2013, Animal Defenders International v. the United Kingdom, Appl. No. 48876/08;
• ECtHR, decision as to the admissibility of M.A. and Others v. Latvia, Appl. No. 25564/18.

Doctrine:  

• Amnesty International, “Lithuania: Written submissions to the European Court of Human Rights on behalf of Amnesty International in the case of C.O.C.G and Others v Lithuania”, April 2023;
• Baranowska, G., “The deadly woods”, Verfassungsblog, October 2021;
• Bosch March, C., “Land pushbacks at the Moroccan-Spanish border: From illegal State practice to endorsement by the European Court of Human Rights. A turn of events ‘made in Spain’”, Cahiers de l’EDEM, Special Issue, August 2022;
• Carlier, J.-Y. and S. Sarolea, Droit des étrangers, Brussels, Larcier, 2016, p. 1;
• Gatta, F. L., “Systematic push back of ‘well behaving’ asylum seekers at the Polish border: M.K. and Others v. Poland”, Strasbourg Observers, October 2020;
• Gatta, F. L., “You shall not pass! Poland and Hungary and the routine of collective expulsions at their borders”, Cahiers de l’EDEM, November 2022;
• Katz, H., “‘Pass Go’ Directly to the Grand Chamber: The Relinquishment of Jurisdiction in the Case Mansouri v. Italy”, Refugee Law Initiative, April 2024;
• Kleczkowska, A., “What does the ‘hybrid attack’ carried out by Belarus against the EU borders mean in reality? An international law perspective”, EJIL:Talk!, December 2021;
• Leboeuf, L., “Interdiction des expulsions collectives et mesures d’expulsions immédiates et systématiques : la Cour européenne des droits de l’homme entre équilibrisme et contorsions”, Cahiers de l’EDEM, March 2020;
• O’Fathaigh, R., “A lesson for applicants: Don’t agree to a relinquishment to the Grand Chamber (S.A.S. v. France Part 2)”, Strasbourg Observers, July 2014;
• Pichl, M. and D. Schmalz, “‘Unlawful’ may not mean rightless”, Verfassungsblog, February 2020.

Other Sources:

• https://www.consilium.europa.eu/en/policies/sanctions-against-belarus/
• https://www.echr.coe.int/documents/d/echr/your_application_eng
• https://www.europarl.europa.eu/doceo/document/E-9-2021-005312_EN.html

 

To cite this contribution: C. Bosch March, “The Chamber Judgment in Sherov and Others v. Poland: Business as Usual at the Polish Border, or the Calm Before the (New) Storm?”, Cahiers de l’EDEM, June 2024.