The first Polish court ruling indicating that push-backs on the Polish-Belarusian border are inhumane and illegal. The regulation constituting the basis for the actions of the Border Guard deemed to have been issued in excess of the statutory authorization.
The District Court in Bielsk Podlaski, VII Local Criminal Division in Hajnówka, by decision of March 28, 2022, file reference VII Kp 203/21, found the arrest of three men from Afghanistan who crossed the Polish-Belarusian border illegal, unjustified and incorrect.
On August 29, 2021, the men crossed the Polish-Belarusian border in a place not intended for that purpose. They received humanitarian aid from the activists they encountered. The Border Guard was informed about the whereabouts of the foreigners and that they expressed their will to apply for international protection. The men confirmed their willingness to apply for this protection against Border Guard officers. They were then taken to the Border Guard Post in Narewka. They were placed in cells for detainees which they were not allowed to leave. They spent several hours there. Their lawyer was not admitted to them. The men were then taken to the strict reserve of the Białowieża Primeval Forest in the middle of the night and pushed back across the Polish-Belarusian border. We also lodged a complaint with the European Court of Human Rights in their case.
In the course of the proceedings, the Border Guard questioned the arrest of the men, pointing out that it was only a “capture” or “restriction of freedom”. This argument was not accepted by the court. In its decision, the District Court indicated that the men had been detained because they had been escorted to the Border Guard facility, locked for several hours in rooms for detained persons, were under the surveillance and had no possibility of freely disposing of themselves. This is an actual detention, regardless of whether the Border Guard will prepare a report on it or not.
The District Court did not believe the explenation of the Border Guard that the purpose of the officers was to feed and allow the foreigners to rest, pointing out that:
The actual detention was aimed at transporting foreigners to the Polish-Belarusian border at night – out of sight of bystanders or journalists’ cameras. Ignoring the fact that It was highly inhumane to transport a group of people in the middle of the night, deep into a nature reserve, without the proper equipment, and it was also illegal.
The court also confirmed the arguments we raised regarding the unlawfulness of the regulation of August 20, 2021 amending the regulation on the temporary suspension or restriction of border traffic at certain border crossing points („Pushback ordinance”). The Border Guard has repeatedly justified its actions by the aforementioned regulation. The Pushback ordinance, however, was issued in excess of the statutory authorization. The court emphasized that:
The minister responsible for internal affairs could thus only limit or suspend traffic by way of an ordinance border crossings. However, he was not entitled to regulate the situation of people who crossed the borders beyond the territorial range of the border crossing.
The irregularity of the detention was additionally determined by the fact that the Border Guard did not prepare any documentation of the detention, the men were not informed about their rights, nor were they informed about the reason for their detention, and the right to the free assistance of an interpreter. The Border Guard also failed to notify the prosecutor of the detention, and foreigners were prevented from contacting their lawyer. Thus, the Border Guard failed to fulfill its legal obligations.
Taking into account the above circumstances, the District Court decided that the detention of the three men was unjustified, illegal and incorrect. The foreigners were represented by an attorney Małgorzata Jaźwińska.