European Court of Human Rights June 30, 2022 Third country: Belarus. The family went to the crossing at Terespol again and again between February and June 2017 and was each time sent back to Belarus (paragraphs 5 to 11). On 17 July 2017 they told the Court that “they had left the area of the Polish border and returned to Russia” (paragraph 16).
Disposition Unanimously: the application admissible; violations of Article 3, of Article 4 of Protocol No. 4, and of Article 13 taken with Article 3 and Article 4 of Protocol No. 4; and “there has been a violation of Article 34 of the Convention”. EUR 30,000 to the applicants jointly for pecuniary and non-pecuniary damage and EUR 700 for costs and expenses; the remainder of the claim dismissed. The judgment became final on 14 November 2022.
From 21 February 2017 the family came to Terespol repeatedly, from April with a written application for international protection, and was refused entry each time (paragraphs 5, 7 and 8). The Court recorded: “At 10.48 a.m. on 16 June 2017 the Court (the duty judge) decided to apply Rule 39 of the Rules of Court, indicating to the Polish Government that the applicants should not be removed to Belarus until 30 June 2017. The Government were informed of the interim measure before the planned time of expulsion. The applicants were nevertheless returned to Belarus at 11.25 a.m.” (paragraph 10).
On 19 June 2017 they came back with a copy of the Court’s letter and a written application for international protection, “clearly expressed a wish to lodge this application”, and were turned away again, while a lawyer sent the application to the Border Guard by email, fax and ePUAP (paragraphs 11 and 12).
The Court held that the failure to begin any asylum procedure on “the thirty-three occasions when the applicants were at the Polish border crossing constituted a violation of Article 3 of the Convention”, and that Poland “knowingly exposed them to a serious risk of chain refoulement and treatment prohibited by Article 3 of the Convention” (paragraph 42). Their case was “an exemplification of a wider State policy of refusing entry to foreigners coming from Belarus” (paragraph 53), and Poland breached Article 34 by not complying with the interim measure.
Access to asylum
Pushbacks
Chain refoulement
Collective expulsion
Effective remedy
Interim measures
Article 3 ECHR
Article 34 ECHR
Caution The judgment does not record what happened to the applicants after they returned to Russia; the interim measure was discontinued on 19 July 2017 (paragraph 16). It describes twenty-four visits to the crossing between 21 February and 14 April 2017, eight more in April and May, and two in June (paragraphs 5, 8, 10 and 11), and gives the total as thirty-three (paragraph 42). Like M.K. and Others v. Poland (see that entry), the judgment concerns an official border crossing in 2016 and 2017. It does not decide the summary returns at the Belarusian border from the summer of 2021, which are before the Grand Chamber in A.R. and Others v. Poland, to be ruled on 24 November 2026.
European Court of Human Rights March 2, 2010 ECHR 2010
Disposition Unanimously: a violation of Article 3; “it is not necessary to decide whether there have been violations of Article 2 of the Convention or Article 1 of Protocol No. 13”; and no violation of Article 6. By six votes to one, “there have been violations of Articles 13 and 34 of the Convention”. Unanimously, the findings of violation “constitute sufficient just satisfaction for the non-pecuniary damage suffered by the applicants”, and EUR 40,000 to the applicants jointly for costs and expenses. The judgment became final on 4 October 2010.
British forces arrested the first applicant on 30 April 2003 and the second on 21 November 2003 and held them in British-run detention facilities in Iraq (paragraph 41). In December 2005 their cases were referred to the Iraqi courts (paragraph 162). The Divisional Court in London found: “we are satisfied that substantial grounds have been shown for believing there to be a real risk of the claimants being condemned to the death penalty and executed, contrary to Protocol No. 13, if they are transferred into the custody of the IHT”, but held that the United Kingdom was bound in international law to hand them over (paragraph 60).
On 30 December 2008 the Court indicated that they “should not be removed or transferred from the custody of the United Kingdom until further notice”. The next day the Government informed it that “the applicants had nonetheless been transferred to the custody of the Iraqi authorities earlier that day” (paragraph 4).
The Court held that from 1 February 2004, when Protocol No. 13 came into force for the United Kingdom, it should not have entered into any arrangement “which involved it in detaining individuals with a view to transferring them to stand trial on capital charges”, and that “the applicants’ well-founded fear of being executed by the Iraqi authorities during the period May 2006 to July 2009 must have given rise to a significant degree of mental suffering and that to subject them to such suffering constituted inhuman treatment within the meaning of Article 3 of the Convention” (paragraph 137). Because British forces had arrested and held them, the United Kingdom “was under a paramount obligation to ensure that the arrest and detention did not end in a manner which would breach the applicants’ rights under Articles 2 and 3 of the Convention and Article 1 of Protocol No. 13” (paragraph 140), and the transfer “in the absence of any such binding assurance” failed to take proper account of those obligations (paragraph 143).
On the interim measure: “The failure to comply with the interim measure and the transfer of the applicants out of the United Kingdom’s jurisdiction exposed them to a serious risk of grave and irreparable harm” (paragraph 165). For the same reason “the effectiveness of any appeal to the House of Lords was unjustifiably nullified as a result of the Government’s transfer of the applicants to the Iraqi authorities” (paragraph 166).
Article 3 ECHR
Death penalty
Transfer of custody
Interim measures
Article 34 ECHR
Effective remedy
Diplomatic assurances
Caution The Article 3 violation lies in the fear of execution to which the two men were exposed, which the Court held to be inhuman treatment; it is not a finding that they were tortured in Iraq. When the Court ruled, the Iraqi High Tribunal had cancelled the charges against them on 9 September 2009 “due to insufficient evidence”, the prosecutor had appealed, and the Court of Cassation had sent the case back for reinvestigation and retrial; they remained in custody (paragraphs 88 and 89). The Committee of Ministers of the Council of Europe, which supervised the execution of the judgment and has closed the case, records that “Al Saadoon and Mufdhi were released from custody by the Iraqi authorities in 2011”, after the Court of Cassation ratified the Tribunal’s decision to acquit them.