A tale of two borders

Russia’s invasion on Ukraine has once again brought attention to Poland’s borders, as the majority of persons fleeing the war are crossing the border to Poland. Last summer, Poland’s policy with regard to persons crossing and attempting to cross the border from Belarus has made headlines.

While making fast and determined steps to help persons escaping the war in Ukraine, Polish authorities have not changed their approach toward the horrors happening at the Polish-Belarusian border. The pushbacks are continuing, and people are dying while being trapped in this border region. On the 28 February 2022, the 4^th day of the Russian invasion on Ukraine, Polish authorities extended a temporary ban on staying at the border area with Belarus, making it impossible to provide humanitarian help to the people remaining there and report on the events from the ground.

Two borders

Poland has an over 500 km long border with Ukraine and – right next to it – an over 400 km long border with Belarus.

At the border with Ukraine, tens of thousands of persons are crossing each day, and the authorities are making a huge effort to make the crossing smooth. It is still a challenge, as Ukrainian authorities are not able to cope with the number of persons leaving. People need to wait for hours or days on the Ukrainian side before entering Poland. Those who cross into Poland are allowed to continue their journey and stay where they wish. A law now discussed by the higher chamber (adopted by the lower chamber on 9 March 2022) gives Ukrainian citizens who have fled the war a permission to work, access to healthcare and education.

At the border with Belarus, people who are trying to cross into Poland are still forced to wander in minus temperatures through thick woods, and to irregularly cross the border back to Belarus, if approached by Polish authorities. Those people, coming from crisis regions, have been granted touristic visas by the Lukashenko regime, so that they can fly to Minsk and then be transported to the border, a situation which has been framed as ‘hybrid warfare’. Being in Belarus, they have now no possibility to enter Poland regularly. Those who made it to Poland and are not pushed back, are forced to stay in closed shelters for refugees, under terrible conditions.

Practices and relevant law at the border with Belarus

The practices introduced in the summer 2021 at the border with Belarus are still in place. As explained in more detail below, they include pushbacks, a state of emergency, which prohibits journalists and persons wishing to bring humanitarian help to enter the area, as well as widespread intimidation of human rights defenders.

Pushbacks

Pushbacks consist of forcing persons who have crossed an international border back, without consideration of their individual circumstances and without a possibility to apply for asylum. In response to the situation at the Polish-Belarusian border, Polish authorities have legalized pushbacks through two frameworks (in August and October 2021). Both frameworks are in violation of Poland’s international obligation and inconsistent with domestic law.

State of emergency

In September 2021 a state of emergency was implemented in regions next to the Belarus border. The executive regulation of the President introducing the state of emergency prohibited staying at designated places, facilities and areas within the covered area. This restriction prevents humanitarian organization from working in this area, as their employees are not able to reach those in need. They also prevent journalists from having access to the area.

According to art. 228.1 of the Polish Constitution, a state of emergency can only be introduced in a “situation of particular danger, if ordinary constitutional measures are inadequate”. Whether it was justified to introduce those measures as several thousand persons attempted to enter Poland – a country of 38 million citizens with very low refugee numbers – was debatable already in September 2021. The criticism seems even more justified now, as the very same authorities are currently arguing to be able to accommodate over 1 million persons that crossed the border within a week from Ukraine. In this light, processing asylum claims of several thousand persons who crossed the border irregularly in August 2021 does not seem to be a “situation of particular danger”, which requires implementing a state of emergency.

According to the art. 230 of the Polish Constitution, a state of emergency can be introduced for 90 days and then extended once only for a period no longer than 60 days. In fact, on 1 October 2021, the state of emergency was extended and lasted until 30 November 2021. As this is the longest period a state of emergency can be in force in Poland, the situation should have changed on 1 December 2021, making the area available for humanitarian organizations and journalists. However, that did not happen.

De facto ‘state of emergency’

On 17 November 2021 an amendment to the law on the protection of state border and certain other acts was adopted, which allows for a de facto extension of the state of emergency. It gives the minister in charge of interior affairs the competence to introduce a temporary prohibition of entering selected border regions. The law, and consequently the executive regulations introduced on the basis of the law are violating the Constitution procedurally and materially. With no independent Constitutional Tribunal, there is no possibility for constitutional review of the law.

On 30 November 2021 – the last day of the constitutional state of emergency – the Minister of Interior and Administration adopted an executive regulation, which introduced a temporary prohibition of staying in the border with Belarus, between 1 December 2021 and 1 March 2022. During the first days of the Russian invasion in Ukraine, the Minister of Interior and Administration adopted a new executive regulation, which prolonged the temporary prohibition until 30 June 2022.

Intimidation of human rights defenders

The legal changes introduced in response to the humanitarian crisis are accompanied by attempts to intimidate human rights defenders. They have been threatened with criminal sanctions, and harassed. The situation has led to a statement made by several UN experts on 15 February 2022, who called upon Poland to “investigate all allegations of harassment of human rights defenders, including media workers and interpreters at the border with Belarus, and grant access to journalists and humanitarian workers to the border area ensuring that they can work freely and safely”.

Effect of the war in Ukraine on the Belarusian border

Belarus could not be considered a safe third country before August 2021, as evident from ECtHR judgments (par 177-185 MK and others v Poland, par 64 DA and others v Poland). The situation has further deteriorated due to the conduct of Belarusian authorities since August 2021, who use physical violence to force people to enter Poland.

After the Russian invasion of Ukraine, there are even more reasons not to return people to Belarus. First, Belarus is complicit in the war, as it permits Russian troops to cross into Ukrainian territory and supports the movements logistically. Second, due to the international response to the war, it is currently extremely difficult to leave Belarus. Consequently, Poland’s authorities are forcing people back into a country that is involved in a war and which they cannot leave.

Law on the help for Ukrainian citizens

The ongoing actions of Polish authorities with regard to people trying to enter Poland via Belarus stands in contrast to their responses to the people fleeing Ukraine. A law currently discussed in the higher chamber of the parliament, provides for regulating the situation of over 1 million Ukrainians that have crossed into Poland. The goal of the law is to assist Ukrainian citizens who have fled to Poland because of the war. Consequently, it does not apply to non-citizens of Ukraine who have fled the war in Ukraine. It also covers only those that came directly to Poland. As such, it has a significantly narrower scope than the Temporary Protection Directive activated by the EU on 4 March 2022.

According to the proposed law, Ukrainian citizens who have crossed into Poland from Ukraine can legally reside in Poland for 18 months. They also receive immediate access to the labor market. Among other benefits are access to healthcare, family benefits and education on the same basis as for Polish citizens. Furthermore, the law tightens penalties for trafficking in human beings and related crimes during the war in Ukraine. As most Ukrainians are hosted by private persons and entities, the law also includes cash benefits for providing accommodation and food, in the amount for 40 PLN a day (about 8,30 EUR), for 60 days maximum.

The law has been most notably criticized for not including non-Ukraine citizens fleeing the war. It also includes a clause that will release authorities from any responsibility for breaking public finance discipline committed in connection with war. This provision initially included also financial misconduct committed in connection with the Covid-19 pandemic, but it has been withdrawn after parliamentary debate.

The factor connecting both borders: NGOs

While the legal response of Polish authorities to the two humanitarian emergencies is extremely different, there is one important factor connecting both situations: NGOs. The same organizations that are trying to assist people who have crossed the Belarusian border, are now also organizing the help for persons fleeing Ukraine. While the organizations were hindered in their help at the Belarusian border and their representatives harassed, they are now praised for their humanitarian work with regard to persons fleeing Ukraine.

This blog post was first published on Verfassungsblog on 10 March 2022.