Francesco Luigi Gatta, Research Fellow, UCLouvain, EDEM
On 23 July 2020, the ECtHR delivered its judgment in the case M.K. and Others v. Poland, concerning the removal of certain Russian families to Belarus, after they had repeatedly and unsuccessfully tried to lodge asylum applications at the Polish border. With an encouraging decision, the Court found – unanimously – multiple violations of the Convention, unmasking a wide State practice of systematic push back of asylum seekers at the borders between Poland and Belarus.
The Court adds a new chapter to its growing case-law concerning border controls, collective expulsions of migrants and push back practises at land borders. For the first time, following the judgment in N.D. & N.T. v. Spain, it explicitly performs the ‘own culpable conduct test’ or the ‘N.D. & N.T. exception’, methodically assessing the applicants’ behaviour at borders. It also provides some insights about individual assessments and interviews to be performed by border authorities.
The case originates from three applications brought by Russian nationals of Chechen origins. While the first application concerns a single person, Mr. M.K., the other two involve two families: married couples with, 5 and 3 children, respectively. All 13 applicants travelled from Belarus to Poland, reaching the border crossing of Terespol and making multiple attempts to lodge an application for international protection (on more than 30 occasions, in less than a year, in the case of M.K.). They clearly expressed the wish to apply for asylum, also in a written format, and in different languages, including Polish and Russian. Their lawyers, who supported them in drafting the asylum requests, were also physically present at the border checkpoint on some occasions, but were not allowed to provide legal assistance to the applicants, nor to oversee their interviews by the Polish border guards. The applicants claimed fears for their safety, linked to their past in the Chechen Republic, where they had been victims of several forms of ill-treatment, including kidnapping, harassment, detention, torture. Each time the applicants presented themselves at the border, the Polish authorities refused to register their asylum applications and issued administrative decisions turning them away to Belarus. Such decisions were grounded on the fact that the applicants did not have any valid documents authorising entry into Poland and that, basically, they were economic migrants, just seeking ‘a better life in Europe’ without facing any real risk of persecution.
Given the continuous rebuff by the Polish border authorities and the refusal to register their asylum requests, the applicants also played the card of Rule 39 of the Rules of Court, requesting interim measures, which the ECtHR granted. It specifically indicated to Poland not to remove the applicants to Belarus, further clarifying that their applications for asylum made at the border checkpoint should be received and registered, and then forwarded to the competent domestic authorities for a proper examination. The Polish government contested the interim measures and disregarded them, returning the applicants to Belarus.
Complaints and judgment of the Court
The applicants complain about their continuous push back from the Polish border, together with the obstinate refusal to consider their asylum applications. This reveals, they add, a general and systematic policy of non-admission by the Polish authorities, especially targeting Russian nationals of Chechen origin. More specifically, they invoke a violation of Article 3 in two respects: a) as a form of refoulement to Belarus, from where they would have been probably returned to Russia, thereby facing the risk of torture and/or inhuman or degrading treatment in Chechnya (indirect or “chain” refoulement); b) as a form of degrading treatment by the Polish border authorities, whose persistent and blatant refusal to consider their statements and asylum requests was a source of distress, frustration, sense of injustice and humiliation. The applicants further invoke a violation of the prohibition of collective expulsion (Article 4, Protocol 4, ECHR), given their removal to Belarus in the absence of a proper examination of their individual circumstances; and a violation of Article 13 in conjunction with the mentioned provisions, due to the lack of an effective remedy to challenge the removal decisions. Finally, they also invoke a breach of Article 34 in light of the Polish government’s non-compliance with the interim measures. The ECtHR unanimously found a violation of each of the invoked provisions.
Article 3 and the right to access to asylum procedures (reinforced by the interim measures)
The Court clarifies that, when it comes to the removal of asylum seekers, rather than examining the merits of an asylum application (which is and remains a task of the State), its main concern is to assess whether effective guarantees existed at domestic level to ensure protection against arbitrary refoulement. In Ilias and Ahmed v. Hungary, more specifically, the Grand Chamber has explained the different procedural obligations that States encounter when deciding to expel asylum seekers. These obligations vary according to the country of destination of the expulsion, which may give rise to direct (country of origin) or indirect (third country) refoulement.
In cases involving a removal of an asylum seeker to a third, intermediate country (here in M.K. & Others: Belarus, with a possible subsequent removal to Russia), the expelling State basically has a choice between two options: examining the merits of the asylum application of the person concerned; or, if wishing to remove the asylum seeker without making such examination, ensuring that the same person will have access to an adequate asylum procedure in the receiving country. In other words, in one way or the other, the asylum seeker must have access to an asylum procedure, which is understood as an essential guarantee of protection against refoulement and as a fair assessment of their request for international protection.
In the case at hand, Poland, clearly, did not intend to examine the merits of the multiple asylum applications submitted at its borders. But did it, at least, verify, before expelling the applicants, that Belarus had in place an adequate system of asylum procedures? It did not do either, Poland simply – and automatically – sent the applicants back to Belarus. In so doing, the Polish authorities ignored both the personal situation of the applicants and the general situation of Belarus, which is not a safe destination for asylum seekers, nor a country that provides adequate access to asylum procedures, considering that it is not a member of the Council of Europe, nor is party to the ECHR and the 1951 Geneva Convention on the status of refugees.
This conduct was essentially justified by invoking the ‘we must protect Schengen’ argument, highlighting how the Polish-Belarusian border is an external border of the EU, whose legislation imposes specific obligations in terms of border protection and prevention of illegal migration. The Polish government added that the applicants, who had been carefully and individually examined, did not reveal any risk of persecution. Put simply, they were not asylum seekers, but, rather, economic migrants trying to enter the EU with their ‘big family’ in order to go to Germany and ‘obtain social benefits there’ (§29).
The Court rejected such argumentations linked to EU law, pointing out how the latter ‘clearly embrace[s] the principle of non-refoulement’, being ‘aimed at providing all asylum seekers effective access to the proper procedure by which their claims for international protection may be reviewed’ (§181). Accordingly, it found a violation of Article 3, given the applicants’ removal to Belarus without an examination of their asylum requests. But there is more: the Court found this not to be episodic, but, rather, a systemic, deliberate practice by the Polish State, as demonstrated by ample evidence collected by human rights institutions, pointing to a widespread policy of manipulation of statements given by asylum seekers, together with various, not unintentional, flaws and irregularities in the border procedures.
The applicants triggered Article 3 also with regard to another profile: the manner in which they had been treated by the Polish border guards, claiming to have been humiliated by such a blatant, stubborn and almost insolent disregard for their asylum applications. In their view, the act of repeatedly ignoring their claims and even misrepresenting their personal experience resulted in a form of degrading treatment. Having already found a violation of Article 3 with regard to the applicants’ removal to Belarus, the Court did not consider it necessary to examine the compatibility with the same provision of their treatment by the Polish authorities. This is actually regrettable, as the Court should have taken the opportunity to establish a double violation of the Convention, as the case involved, logically and chronologically, two different and separate circumstances: first, the reception at the Polish border and the request for asylum, and then the expulsion to Belarus. These circumstances, in turn, are linked to two different obligations, as highlighted by the Court itself in its interim measures under Rule 39. Indeed, it explicitly indicated to Poland to a) register asylum applications at borders (positive obligation) and b) refrain from removing applicants to Belarus (negative obligation).
The Court ruled that Poland failed to comply with both obligations indicated in the interim measures, thereby finding a violation of Article 34 ECHR. This appears to be at odds with the findings relating to Article 3, where the focus is only put on the negative obligation (removal to Belarus), while the positive one (registration of asylum applications) is basically overlooked. The Court, on the one hand, notes that such claim is ‘closely related to the issue of the applicants’ lack of access to the asylum procedure’, but, on the other, concludes that it is not necessary to rule on the facts occurred ‘during the border checks’ (§187).
“Collective push backs” as a systemic State practice
The Court proceeds methodologically to assess a potential violation of Article 4, Protocol 4: first it ascertains that an expulsion had indeed taken place, then it examines the collective character of such an expulsion, finally, it verifies whether the N.D. & N.T. exception of the ‘own culpable conduct’ applies.
No doubt as to the expulsion, which, according to the ECtHR’s case-law, is to be broadly understood, encompassing any measure preventing migrants from reaching the border of the State. The Court adds that the existence of an expulsion ‘is even more evident… in a situation in which the aliens present themselves at a land border and are returned from there to the neighbouring country’ (§204).
As to the collective character of the expulsion, the Polish government argued that individual interviews were conducted properly, separately, and in a language understood by the applicants, with sufficient time devoted to each one of them. It also invoked the inadmissibility of the applications due to jurisdictional issues linked to Article 1, contradictorily arguing that the applicants ‘had been on Polish territory only briefly’ (§120), which would suffice to exclude Polish jurisdiction. Similar ‘border spell’ tricks are typically used by States as an attempt to suspend/exclude the applicability of human rights obligations (cfr. the Spanish government, in N.D. & N.T., §§105-110). But the ECtHR easily rejected this rather ‘creative’ argumentation, observing that States cannot circumvent jurisdiction based on the short duration of time spent on the national territory (§131).
As to the way in which interviews are conducted, the Court has clarified that what matters is the quality, not the quantity. Brief interviews with standardised questions, in principle, are not prohibited (cfr. Asady and Others v. Slovakia: 10-minute interviews considered admissible). In M.K. & Others, the collective nature of the applicants’ removal to Belarus is deduced from a number of elements, which, taken all together, not only lead to the finding of a violation of Article 4, Protocol 4 in the specific case, but also to the acknowledgement of a systemic State practice of push back of asylum seekers. The judges, in particular, lend weight to the following aspects:
– Regularity of the interviews:
Although, formally, interviews had been conducted on an individual basis, their objective was distorted: rather than being aimed at genuinely establishing the individual reasons for seeking entry into Poland, interviews were skilfully ‘steered’, with special emphasis being put on the circumstances allowing to categorise the aliens as economic migrants. Moreover, examinations were very brief, lacking any transparency and being held in the absence of the applicants’ lawyers, consisting of insistent and pressing questions regarding the economic and professional situation of each individual. Statements concerning personal experiences and reasons for seeking asylum were either ignored or manipulated.
– Content of the decisions:
Although individual refusal-of-entry decisions were formally issued, they were drafted in a standardised manner, not properly reflecting the reasons given by the applicants as a justification and explanation for seeking international protection. They were solely based on very brief notes prepared by the border guards, misrepresenting migrants’ statements and making only reference to their economic situation.
– Instructions by the Governmen:
Interviewed in a TV programme in 2016, the Polish Minister of the Interior publicly declared the intention to keep borders closed, repel migrants and, specifically referring to the Polish-Belarusian border, to categorically refuse entry to Chechens. As previously occurred in Conka v. Belgium and in the case-law concerning the expulsion of Georgians from Russia (e.g. Georgia v. Russia (I); Berdzenishvili and Others v. Russia; Shioshvili and Others v. Russia), the Court considered the political context surrounding the expulsion as a relevant indicator, which may reveal a wider policy or organised State strategy targeting certain aliens.
– Statistics concerning asylum applications:
Data on registered asylum applications in Poland from 2017 onwards show a clear drop in numbers, especially with regard to the border with Belarus.
In light of such considerations, the ECtHR establishes that the expulsion had been collective in nature. But, may this push back by the Polish authorities be justified due to the own culpable conduct of the applicants?
The N.D. & N.T. exception
With the judgment in N.D. & N.T. v. Spain (analyses here and here), the Grand Chamber introduced the ‘own culpable conduct’ exception, according to which a collective expulsion of aliens by a State may be ‘excused’ if the expelled aliens have tried to irregularly and violently enter the State’s territory, without making use of available means of legal entry. The Court recalls this exception in M.K. & Others v. Poland, explaining that ‘…recourse to unauthorised and clearly disruptive means of attempting to enter the State’s territory despite the existence of a genuine and effective access to means of legal entry might prompt the Court to find that the Government cannot be held responsible for the fact that the applicants’ circumstances were not individually examined’ (§203; also N.D. & N.T., §200).
This is the first time, since the N.D. & N.T. judgment, that the Court specifically and explicitly performs the ‘own culpable conduct’ test in order to verify whether a collective expulsion may be justified. In Asady and Others v. Slovakia (analysis here), the ECtHR dedicated only brief and throwaway remarks to such an exception, while in Moustahi v. France it did not mention it at all. Contrastingly, in M.K & Others, the Court specifically focuses on the analysis of the applicants’ conduct, concluding that it had been irreprehensible: they attempted to enter the territory in a legal manner, orderly presenting themselves at the official border checkpoint, without using any violence or clandestine or aggressive behaviour, and subjecting themselves to the prescribed border checks and procedures. The exception of the own culpable conduct, thus, does not apply, the collective expulsion being inexcusable.
Money matters and a questionable idea of ‘equity’
All applicants submitted requests for just satisfaction under Article 41 ECHR, but in different forms (§§242-244). More specifically, M.K., the only individual applicant, claimed ‘no less than’ 10,000 € in respect of non-pecuniary damage, leaving the exact amount to the Court’s discretion; a similar request was made by the family with 3 children (‘no less than’ 35,000 €), while the family with 5 children jointly requested a specific amount (210,000 €). The Court awarded the same sum (34,000 €) in respect of the three applications; therefore, an identical amount was recognised individually to Mr. M.K., and jointly to the members of the two families (§246). In his dissenting opinion, Judge Eicke expressed disagreement and criticism about this decision, finding that awarding the same sum to both the single individual applicant and the multiple, individual applicants of the two families appears to be ‘not only fundamentally inconsistent with a victim-oriented approach… but also to be inconsistent with the “equitable basis” on which the awards are said to have been made’ (§5). He stressed the clear difference between the situations of the adult applicants, and particularly the additional difficulties and harm faced by the parents in the two families, with, their 5 and 3 children, respectively. For Judge Eicke, ultimately, the Court should have awarded the same sum to everyone, including each of the parents and each of the children involved in the case. In effect, the Court, first, established, on an equitable basis, a given sum to be awarded in respect of non-pecuniary damage, but then, regrettably, simply and mechanically applied this parameter to the three applications, regardless of the different circumstances of the applicants. In so doing, ultimately, equity has been turned into inequality.
With the judgment in M.K. & Others the ECtHR provides some interesting clarifications regarding the prohibition of collective expulsion at land borders. In particular, for the first time, it clearly and explicitly performs the ‘own culpable conduct’ test, previously elaborated in N.D. & N.T. Accordingly, the Court establishes the methodological approach to be followed in cases of alleged collective expulsions, which combines a procedural test (was the expulsion collective?) with the N.D. & N.T. exception (if it was collective, was it due to the applicants’ own culpable conduct?). This is the solution that was envisaged by the three dissenting Judges Lemmens, Keller and Schembri Orland in Asady & Others v. Slovakia, which the Court had, until now, avoided to take a position on.
The cases N.D. & N.T. and M.K. & Others, in this respect, may be seen as antipodes, emblematic exemplifications of opposite circumstances of ‘bad’ vs. ‘good’ migrants, trying to enter the State’s territory: irregularly and violently in the Spanish case of Melilla; peacefully, orderly and using the prescribed procedures and the official border checkpoints in the Polish case of Terespol. A number of questions, however, remain open. What about cases in which the factual background may be less straightforward? How will the Court measure the migrants’ behaviours, in order to decide whether to apply the exception of the own culpable conduct?
Additional delicate issues concern another essential component related to the N.D. & N.T. exception: the availability of legal pathways to enter the State’s territory. In the Spanish case the Court affirmed that not only legal pathways must be provided, but must also be genuine and effective. In M.N. & Others v. Belgium, regarding the request for humanitarian visas lodged by Syrians at the Belgian embassy in Lebanon, the Grand Chamber found the application to be inadmissible due to the lack of jurisdiction under Article 1 ECHR. However, it pointed out that ‘this conclusion does not prejudice the endeavours made by the States Parties to facilitate access to asylum procedures through their embassies and/or consular representations’ (§126). Despite such insistence on the obligation for the States to make legal pathways available, how is their accessibility measured and assessed in concreto? For example, even if they formally exist, what is the impact on their usability of third neighbouring countries, which are not bound by the ECHR (e.g. Morocco in N.D. & N.T., Belarus in M,K. & Others)?
Further doubts surround the individual interviews and the way in which they shall be conducted. Although they are not necessary in all circumstances (Khlaifia & Others v. Italy, GC, 2016), it is still unclear how restrictively the conditions in which they take place have to be assessed (duration, type of questions, timing of the answers, assistance of interpreters, etc.). The Court seems to oscillate between a more ‘generous’ (and questionable) approach towards the States, as in Asady & Others v. Slovakia, and a more rigorous one, like in M.K. & Others. Here again, however, the factual background was quite straightforward, even with an unconcealed and ‘declared’ policy of border closure and automatic push back of asylum seekers. It remains to be seen how the Court will approach less clear episodes occurring at land borders.
Following N.D. & N.T. v. Spain, the litigation on border controls and collective expulsion is now heading East, with various cases pending against Hungary, Croatia, Latvia, North Macedonia and, again, Poland, in a similar case concerning the border with Belarus. Therefore, the opportunity for the Court to provide clarifications to the above-mentioned issues will come in the near future.