Commissioner O’Flaherty visited Poland from 16 to 18 September 2024 for a mission focusing on the situation on the Polish-Belarusian border and the human rights of refugees, asylum seekers and migrants. The Commissioner’s mission was prompted by longstanding  reports about incidents on the Polish-Belarusian border and followed up on two letters sent in July to the Prime Minister and the Marshal of the Senate of Poland on that topic.

The Commissioner commends Poland for welcoming and assisting millions of people fleeing Russia’s war of aggression in Ukraine. He also acknowledges the challenges posed by the instrumentalisation of migration and destabilising actions of the Belarusian authorities on the Polish-Belarusian border. However, he considers that Poland’s current summary return practice at the Polish-Belarusian border, facilitated by legislative changes adopted in Poland in 2021, does not allow for full respect of international human rights standards. The practice of summary returns of persons across the border to Belarus, without an individual assessment, including in some cases persons who have formally requested asylum on Polish territory, exposes them to the risk of serious violations of the rights protected by the European Convention on Human Rights.

Under the Convention, states are prohibited from exposing anyone to a real risk to life or to torture or inhuman or degrading treatment or punishment, even when faced with significant challenges related to migration. Returns without any individual examination may also violate the prohibition of collective expulsions. The Commissioner calls on the Polish authorities to put a stop to all summary returns to Belarus and to ensure that every person who wishes to claim international protection on Polish territory is effectively able to do so and receives a careful individual assessment of their case. In addition, the Commissioner recalls that due attention must be paid to the most vulnerable groups among asylum seekers and migrants.

The Commissioner has received credible allegations of isolated acts of misconduct by some members of the Polish Border Guard against asylum seekers and migrants. The Commissioner welcomes the commitment of the leadership of the Border Guard to zero tolerance of such acts. He takes note of the establishment of a specialised prosecution unit tasked with dealing with such alleged acts and encourages the continuation of this work to ensure that any such alleged case of misconduct be investigated and sanctioned.

The Commissioner calls on the Polish authorities to invest more in creating structures for meaningful dialogue with expert civil society organisations active in providing people with legal and humanitarian assistance on the Polish-Belarusian border. To this end, he encourages the re-establishment of a consultation platform between the civil society organisations and the Border Guard, noting that such a structure was in operation prior to 2015. The Commissioner has learned about cases of criminalisation of persons involved in providing legal and humanitarian assistance on the border. He calls for any charges made in connection with such legitimate activity aimed at defending human rights to be dropped.

The Commissioner welcomes the efforts of the Polish authorities to carry out search and rescue operations at the border, the initiative to embed specialised human rights coordinators in all Polish Border Guard units and at the central level, and the human rights training for members of the Border Guard. He encourages the continuation and development of these initiatives. However, he observes that only a handful of human rights and humanitarian actors among Poland’s civil society organisations have so far been allowed access to the buffer zone, which was established on the Polish-Belarusian border in June and was recently extended for another 90 days. He recalls that humanitarian access is essential to protect the human rights of people stranded in the border areas and to prevent inhuman or degrading treatment or even threats to their right to life. Legal assistance is an essential safeguard to uphold the prohibition of refoulement, to prevent collective expulsions and to ensure access to effective remedies. Noting the autonomous authority of local Border Guard commanders to grant or deny access permits to the zone, the Commissioner calls for the establishment of clear and standardised criteria for the granting of such entry permits.

The Commissioner recommends that consideration be given to the establishment of an independent human rights monitoring mechanism to monitor respect for human rights along the border on a permanent basis*.

Noting the prominent role Poland plays in shaping European migration policies, the Commissioner encourages the Polish authorities to show leadership by developing a robust migration management system in which legitimate security concerns are accompanied by solid legal and policy safeguards to protect the dignity and human rights of refugees, asylum seekers and migrants in full respect of international law, including the 1951 Refugee Convention and the European Convention on Human Rights. The Commissioner, while noting the encouraging changes in official commentary on migration matters, calls on the government to tackle those narratives in Polish society that are based on disinformation, and calls for this issue to be addressed by the forthcoming migration strategy.

With regard to the recently adopted legislation which exempts from criminal liability certain categories of state agents deployed in border areas who, under certain conditions and in situations of urgency, use direct force or firearms in violation of the applicable rules, or who authorise such use by others, the Commissioner considers it to be at variance with international law and Council of Europe standards, especially the requirements of Articles 2 (right to life) and 3 (prohibition of torture and ill-treatment) of the European Convention on Human Rights. He regrets its entry into force and recommends its repeal.

During the visit, the Commissioner met with the Minister of Foreign Affairs, Radosław Sikorski; the Undersecretary of State in the Ministry of Interior and Administration, Maciej Duszczyk; and the Commander-in-Chief of the Border Guard, General Robert Bagan, and appreciates the openness of the discussions. The Commissioner visited border crossings at Terespol and Połowce and parts of Poland’s border with Belarus located in the buffer zone. He also met with representatives of civil society and international organisations. On the occasion of the visit, the Commissioner also attended the ceremony of the Lech Wałęsa Solidarity Prize awarded to Belarusian opposition figure Pavel Latushka.

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* Cf. Commissioner for Human Rights, Pushed beyond the limits: four areas for urgent action to end human rights violations at Europe’s borders, Recommendation, April 2022, chapter 3; European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, 30th General Report of the CPT (2020), May 2021, p. 15-16; EU Fundamental Rights Agency, Monitoring fundamental rights during screening and the asylum border procedure – A guide on national independent mechanisms, September 2024.