Caught between the forces Belarusian and the wall Polish, the thousands of migrants trapped for more than eight days at the border between the two countries are in limbo. Without status on the Belarusian side, without recourse on the Polish side. Every night, many try to cross, and are systematically turned back by Polish soldiers. Roughly. Three photoreporters were also brutally arrested, outside the three-kilometer red zone, according to Press Club Polska, a Polish association cited by the Associated Press.
Under Russian pressure and faced with Warsaw’s intransigence, Minsk had some of the migrants removed from the border and decided to set up a facility so that they could sleep under a roof. With the bite of the frost progressing from night to night, a humanitarian crisis is guaranteed if relief does not speed up. However, the Polish government has so far excluded any assistance on its soil.
Respect for international conventions
Poland certainly exercises legitimate control over its own border, but it does so under European Union law since it is a member of it and since it is also the external border of the EU.
, explains to West France Yves Pascouau, specialist in migration issues and advisor at the Jacques Delors Institute. Warsaw ratified the European convention of human rights. And by integrating the EU, it accepted to apply the system of respect for fundamental rights even if it is not bound to the Charter of Fundamental Rights of the EU by a protocol.
In the exercise of its action, Poland must control the border of the Schengen area in full respect of the human rights of international conventions. And in this, it does not have the right to turn back people who have had access to its territory if they express the intention to seek asylum, or suffer inhuman and degrading treatment in their country of return.
. And in the case of asylum seekers or people in need of protection, it is the 1951 UN Convention on the Status of Refugees that would not be respected.
Warsaw already doomed in 2020
In July 2020, the European Court of Human Rights (ECHR) had issued a judgment condemning Poland for refusing, in 2017, to submit asylum applications at its border. It was then a group of Chechens, still on the Belarusian border.
August 25, 2021, the ECHR already asked Poland and Latvia to provide assistance to migrants already present at the Belarusian border. This measure should not be understood as requiring that Poland or Latvia allow applicants to enter their territory.
, specified the European judges. Also in November 2020, the CJEU condemned three EU countries (Poland, Hungary and the Czech Republic) for not having accepted relocated asylum seekers.
According to Yves Pascouau, from the moment the European States exercise their action in what is called the field of EU law, then they must respect European rules as commonly defined by the European legislator, but also exercise them in full respect of the Charter of Fundamental Rights of the EU. The charter is a protective text which covers all actions carried out by States within the scope of EU law.
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Two jurisdictions involved
As all access is prohibited near the Belarusian border, neither journalists nor humanitarians can rescue or testify to what is happening. The help of the local civilian population, however, made it possible to filter some testimonies on the systematic refoulement on the part of the Polish authorities. If there is a violation, two jurisdictions would potentially be competent and able to certify it.
The Court of Justice of the EU (CJEU) could be competent if the European Commission considers, after examining the situation, that the Polish authorities have been guilty of a violation of EU law
, explains Yves Pascouau. The Commission could apply to the CJEU to find a breach of obligations and a violation of law
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The second possibility is the European Court of Human Rights. There, it would be the possibility for a person, victim of refoulement for example, to have the violation of the convention noted by the ECHR itself and to seek compensation from the Polish State.
. But to do this, it is necessary that this person can maintain contact with a lawyer in Poland, that this lawyer submits a request to the Polish courts. When all domestic remedies have been exhausted, the person in question may appeal to the ECHR as a last resort.
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Migration, this divisive subject
In other words, it takes either the political will of the Commission, already engaged in a standoff with the Polish authorities on the question of the rule of law, or a very long procedure before the ECHR, which will take time and a mobilization in Poland itself.
For Yves Pascouau, hard not to see that the migration issue is really the Achilles heel of European cooperation
. A look back at the last crises is eloquent according to him. In all areas, the EU Member States have acted together and found solutions: financial crisis, terrorist crisis, Brexit, pandemic, recovery plan. The only area in which they remain deeply divided is the migration issue.
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