Decisions

European Court of Human Rights April 4, 2024 Third country: Ukraine. From December 2016 to January 2017 border guards at Medyka and another crossing on the Polish-Ukrainian border turned each of them away to Ukraine at least four times, and one of them fourteen times (paragraph 5); on 1 February 2017 all four were sent back again (paragraphs 9 and 10). The Court noted that Ukraine was “a Contracting Party to the Convention” (paragraph 47).

Disposition Unanimously: the applications joined and declared admissible; “a violation of the procedural limb of Article 3 of the Convention”; a violation of Article 4 of Protocol No. 4; a violation of Article 13 taken with Article 3 and Article 4 of Protocol No. 4; and no need to examine the complaint under Article 8 in application no. 54255/17. EUR 13,000 to each applicant for non-pecuniary damage; the remainder of the claims dismissed. The judgment became final on 4 July 2024.

The four men said they asked each time for international protection “because they were at risk of political persecution in Tajikistan” (paragraph 5). On 1 February 2017 all four presented themselves at Medyka and asked to apply; a lawyer from the Helsinki Foundation, who had written authority from two of them, asked to attend their interviews and was refused (paragraph 9). The border guards recorded economic and personal reasons, and all four were sent back to Ukraine (paragraph 10). The Polish administrative courts later found that the border guards had not properly established whether the men wished to apply. The Supreme Administrative Court held on 20 September 2018 that “the official notes could not have been considered sufficient evidence of the applicants’ intentions as expressed at the border” (paragraphs 17, 19 and 20). The European Court observed that those findings “did not result in any change of the applicants’ situation, given that the appeal to those courts did not have automatic suspensive effect” (paragraph 49). That Ukraine was a party to the Convention “did not exempt the Polish authorities from conducting a thorough examination of the applicants’ situation” (paragraph 48). Poland “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” (paragraph 48). Sending them back without that examination “constituted a violation of the procedural limb of that Article” (paragraph 50).

Access to asylum Pushbacks Safe third country Collective expulsion Effective remedy Article 3 ECHR Access to a lawyer

Caution The violation is of the procedural limb of Article 3: Poland did not examine whether Ukraine was safe for the applicants before sending them there. The Court did not find that Ukraine was unsafe for them or that they were ill-treated there. The judgment lists one applicant as living in Warsaw, two in Austria and one in Ukraine (appended table).