The facts of the Nikoghosyan and others versus Poland case reflect long-standing practices resorted to by the Polish Border Guard and Polish courts which violate Polish law and international standards. In 2016, a family of five attempted to apply for international protection at the border crossing in Medyka six times. They were denied entry to Poland on all their attempts and pushed back to Ukraine. Their application was accepted only on the seventh attempt but they were instantly placed in a guarded centre for foreigners in Biała Podlaska (for a total amount of time of almost 6 months). The Polish court deemed their detention justified because it was necessary to explain contradictory statements they made in relation to the reasons why they arrived in Poland (decisions denying the family entry to Poland list economic considerations while the family claimed in court to have come to Poland in search of protection). The court also claimed that there was a high risk of the foreigners attempting to escape because they asked for protection in Poland only after having been denied access to Poland multiple times.
Under the European Convention of Human Rights (ECHR), foreigners may be detained only when certain strictly defined conditions have been met. In the Nikoghosyan case, the European Court of Human Rights clearly stated that the detention of the appellants violated Article 5(1)(f) of the Convention and ruled that they receive damages of EUR 15,000.
ECtHR noted that the family was placed in a guarded centre so that information related to the reasons why they entered Poland could be investigated. To this end, the appellants were interviewed by the Office for Foreigners one month after they were detained. No further information was requested from them after that initial interview. Consequently, the Court decided, the reasons why they entered Poland must have been ascertained by then and continued detention for several more months was unjustified.
ECtHR also commented on the allegedly high risk of foreigners escaping due to them having applied for protection only after trying to enter Poland without the necessary documents on multiple occasions. The Court noted that it was not able to verify claims that the Polish Border Guard ignored several applications for protection filed by the appellants. However, it pointed out that it was aware of the difficulties faced by refugees on Polish border crossings and referred to a decision taken in the M.K. and others v Poland case where the practice of the Polish Border Guard consisting in not receiving applications for international protection was clearly condemned.
ECtHR concluded that courts deciding to apply detention failed to thoroughly examine the situation of the appellants in question. Their case was not reviewed with sufficient diligence. The Court noticed many omissions and mistakes in decisions taken by Polish courts (for example, female pronouns were used in a decision pertaining to a man).
Lastly, ECtHR noted that detention was applied to three small children. The court taking the decision to place that family in a guarded centre failed to even mention that fact in the justification of its decision. No court mentioned the fact that the mother of the family gave birth to her fourth child while detained at the guarded centre. This suggests lack of due diligence.
ECtHR clearly objected to the line of reasoning of Polish courts according to which children may be kept at detention centres because they are not separated from their parents thanks to this. The Court noted that ensuring the welfare of children is not limited to making it possible for them to stay with their parents and that authorities are obliged to not resort to detaining families with children wherever this is possible.
ECtHR also noted that the conditions at the guarded centre in Biała Podlaska are similar to prison conditions. Detaining children is possible but only if proper conditions are ensured. Such detention also has to be necessary (i.e. it is not possible to apply measures alternative to detention) and the authorities need to act smoothly to ensure that such detention does not continue longer than necessary.
The decision taken in the Nikoghosyan case is not surprising because it is based on well-known and well-established cases. The detention of foreigners has to be closely related to its purpose, the authorities should act smoothly and with due diligence, and children are to be detained only if there are no other solutions. Moreover, this is the fourth decision (see also: A.B. and others, Bilalova and others, Bistieva and others) where ECtHR concluded that foreigner were detained in Poland in violation of the ECHR.
The interesting detail in this case is that the Court decided that Article 5(1)(f) of the ECHR was infringed in relation to both the children and their parents because their detention was not the last resort and other options were available. Detention of the Nikoghosyans was not necessary. Detention based on Article 5(1)(f) of the ECHR does not have to be necessary. A well-established exception to this is the detention of children. This is why the Court often rules that Article 5(1)(f) of the ECHR was infringed only for detained children while at the same time declaring that the detention of their parents was in line with the Convention. In spite of this, in the Nikoghosyan case, the Court applied the necessity requirement to both the children and their parents. This was the effect of many factors, including a clear lack of connection between the purpose of detention and its duration and a clear lack of due diligence exhibited by Polish courts. The context of the case must have also played a considerable part, i.e. many reports (and decisions of ECtHR) confirming push-backs at the Polish border. Even though the Court was not able to confirm that the appellants were affected by such illegal practices, it must have understood that this was more than likely.
Even though the decision taken in the Nikoghosyan case is another decision by ECtHR pointing out irregularities regarding the detention of foreigners in Poland and even though the relevant standards of ECtHR are clear and well-established, third-party citizens – including children – are still being detained without thought and without necessity. Unfortunately, taking the negative attitude of Polish authorities towards the ECtHR and their policy related to foreigners to-date (particularly the xenophobic attitude of the Polish government towards foreigners from countries considerably different from Poland in geographic, ethnic, or religions terms) into account, it is difficult to expect any changes.
Legal counsel specialising in asylum and migration law. Received a PhD title in law from the University of Zurich; in 2010-2016, a lawyer acting as part of the Legal Assistance for Refugees and Migrants Programme of the Helsinki Foundation for Human Rights; author of publications on human rights, migrant and refugee rights, co-author of a report on the Polish asylum system as part of Asylum Information Database (AIDA) operated by the European Council on Refugees and Exiles.
Photo: European Court of Human Rights, photo by Maja Łysienia