Article 31(1) of the Geneva Convention provides for conditional de-penalisation of illegal border-crossing by refugees. No penalties are to be imposed on them provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
The District Court in Biała Podlaska, by its ruling II K 796/21 of 3rd June 2022, discontinued criminal proceedings initiated against a refugee from Belarus who crossed the Polish border at a point not meant for border crossing while fleeing from persecution.
Mr Vitali was charged with illegally crossing the border in collusion with other persons who allegedly provided him with information about the lie of the land and provided him with means of transport (Article 264 §2 of the Polish Criminal Code).
Mr Vitali decided to flee the country because the Belarusian regime was looking for him. He was an activist of the opposition and he took part in protests against the fraudulent presidential election. A warrant for his arrest was issued because of this and his family received threats. His life and well-being were under threat if he were to be captured in Belarus. This was confirmed by Polish authorities who confirmed his refugee status and concluded that he would run the risk of persecution for political reasons if he were to return to Belarus.
The foreigner decided to flee to save his life. He crossed the Polish border at the Bug river to get to Poland. His friends were supposed to take him to a Border Guard post so that he could apply for refugee status in Poland. However, they were apprehended by the Border Guard before that could happen and criminal proceedings were initiated against all of them. Directly after his arrest, Mr Vitali let the officers know that he intended to apply for international protection in Poland. He filed an application for it on the same day.
We demonstrated in court that criminal proceedings should not have been initiated because refugees may not be prosecuted for illegally crossing national borders. The District Court concurred and noted that:
evidence negating the need to initiate criminal proceedings was found as per Article 17 1(4)of the Code of Criminal Procedure, i.e. the law dictates that the perpetrator is not to be prosecuted.
The District Court pointed out that Article 31(1) of the Geneva Convention provides for conditional de-penalisation of illegal border-crossing by refugees. No penalties are to be imposed on them provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. The Court noted that for the provision in question to apply, it is enough for the refugee to immediately announce their intention to report to a Border Guard station to apply for refugee status. Mr Vitali was not obliged to notify the Border Guard of his intention to apply for international protection by phone upon crossing the Polish border.
Criminal proceedings were also discontinued with regard to Mr Vitali’s friends due to the negligible social harm done by their deed. While assessing the social harm done by their deed, the District Court took the fact that Mr Vitali was a refugee into account and, consequently, the willingness of his friends to aid stemmed
not only from them being his friends but also from them supporting an activist of the opposition who was persecuted and repressed for political reasons.
The Court pointed out that the accused friends of Mr Vitali wanted to help him selflessly which needs to be taken into account while assessing the social harm done by their deed. Consequently, it could not be concluded that they committed a crime.
Mr Vitali was defended by Małgorzata Jaźwińska, advocate collaborating with SIP.