Commissioner for Human Rights

In a letter of 25 August 2021 to the Ministry of the Interior and Administration (MIA), Commissioner of Human Rights expressed his concerns and objections to the amendments made to the MIA Regulation of 13 March 2020 on the temporary suspension or restriction of border traffic at designated border crossing points. In particular, this concerned the introduction of new paragraphs 2a and 2b to § 3 of this Regulation, which formed the basis for the practice of so-called "pushbacks" - procedures for turning back persons at the State border who do not meet the criteria for crossing the border or who are not at the border crossing point covered by the suspension or restriction of border traffic.
The Commissioner stressed that the introduction of these changes effectively prevents persons who intend to apply for international protection from actually crossing the border. Moreover, persons who have crossed the border illegally are deprived of the possibility of effectively submitting an application for protection, despite the fact that they have the right to do so under the Act of 13 June 2003 on granting protection to aliens on the territory of the Republic of Poland. The ROP also stressed that Article 56(2) of the Polish Constitution guarantees the right to exercise this right.
It should be noted that the Commissioner's position on this issue remains valid and has not changed. The Office of the CHR continues to receive complaints about cases of persons being turned back at the border, despite the existence of a real threat to them on the territory of Belarus. In particular, the practice of turning back people who had previously been in hospital should be highlighted. For example, the situation of a man who was unable to move independently and who had previously received medical assistance was reported to the ROP.
International organisations have also taken an interest in this issue. In a report of April 2023, the UN Special Rapporteur on the human rights of migrants called on Poland to review the pushback procedure and to fully respect the prohibition of collective expulsion and the principle of non-refoulement. The UN Special Rapporteur on violence against women and girls, following a visit to Poland in March 2023, also highlighted that the procedure for returning refugees and protection-seekers to the border with Belarus particularly affected women and girls, including pregnant and elderly women.
It is also worth mentioning the ruling of the Voivodship Administrative Court in Bialystok in September 2002, which stated that the practice of "pushbacks" was incompatible with international and EU law and that the procedural rights of persons subject to this procedure were violated. The Court stressed that persons expressing a wish to apply for international protection should be able to do so. The Court also agreed that the use of pushbacks violated the principle of non-refoulement and other international human rights law.