Cases in which the Court found a violation of Article 4 of Protocol No. 4 to the Convention
THE LAW JOINDER OF THE APPLICATIONS 118. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given that they concern similar facts and raise identical legal issues under the Convention. ADMISSIBILITYThe issue of jurisdiction under Article 1 of the Convention The issue of jurisdiction under Article 1 of the Convention The issue of jurisdiction under Article 1 of the Convention 119. Article 1 of the Convention provides: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.” The parties’ submissions (a) The Government 120. In their submissions to the Court, the Government pointed out that the present cases were of a specific character as they involved decisions to refuse entry into Poland issued by the border authorities at the border checkpoints on the Polish-Belarusian border. The Government indicated that the applicants had been on Polish territory only briefly and had not been legally admitted to this territory. As a result, the jurisdiction of the Polish authorities over them had been limited to the issuance of the decisions refusing them entry. 121. The Government submitted that in this respect the present cases were different from a number of previous cases examined by the Court ( Khlaifia and Others v. Italy [GC], no. 16483/12, 15 December 2016; Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, ECHR 2012; Louled Massoud v. Malta, no. 24340/08, 27 July 2010; Suso Musa v. Malta, no. 42337/12, 23 July 2013; and Gebremedhin [Gaberamadhien] v. France, no. 25389/05, ECHR 2007 ‑ II) in which the applicants were under the territorial jurisdiction of the Contracting States for an extended amount of time and – particularly in cases concerning irregular migration by sea – were at imminent risk of losing their life or health if returned to the sea or the maritime border. (b) The applicants 122. The applicants submitted that under Article 1, the Convention applied to all persons under a Contracting Party’s jurisdiction, which was not limited to its territory. They argued that the Convention applied in all situations in which the effective control by the authorities of the Contracting Party was exercised. 123. The applicants pointed out that the Terespol border checkpoint, where they had been subjected to border checks, was situated 2,600 metres into Polish territory and that the officers of the Border Guard, who conducted the border control of foreigners, exercised full authority over foreigners seeking entry into Poland. 124. Moreover, the applicants submitted that under both international law (including the Geneva Convention) and under European Union law (including Directive 2013/32/EU and Regulation (EU) 2016/399 (“the Schengen Borders Code”)) it was clear that the principle of non-refoulement protected persons who were subjected to border checks even before they were allowed entry into a State by its border authorities. (c) Third-party interveners 125. The third-party interveners submitted that where the State exercised effective authority or control over persons, it also exercised jurisdiction – thus triggering the protective obligations of the State under the Convention. The Court’s assessment (a) General principles governing jurisdiction within the meaning of Article 1 of the Convention 126. Under Article 1 of the Convention, the Contracting States undertake to “secure” to everyone within their “jurisdiction” the rights and freedoms defined in Section I of the Convention (see Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, § 66, ECHR 2001 ‑ XII). The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it that give rise to an allegation of the infringement of rights and freedoms set forth in the Convention (see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 311, ECHR 2004 ‑ VII). 127. The jurisdiction of a State, within the meaning of Article 1, is essentially territorial (see Banković and Others, §§ 61 and 67, and Ilaşcu and Others, § 312, both cited above). It is presumed to be exercised normally throughout the State’s territory (see Assanidze v. Georgia [GC], no. 71503/01, § 139, ECHR 2004-II, and N.D. and N.T. v. Spain [GC], nos. 8675/15 and 8697/15, § 103, 13 February 2020). 128. In keeping with the essentially territorial notion of jurisdiction, the Court has accepted only in exceptional cases that acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of Article 1 of the Convention (see Drozd and Janousek v. France and Spain, 26 June 1992, § 91, Series A no. 240; Bankoviç and Others, cited above, § 67; and Ilaşcu and Others, cited above, § 314). It has established, in particular, that whenever a State, through its agents operating outside its territory, exercises control and authority over an individual, and thus jurisdiction, it is under an obligation to secure to that individual the rights and freedoms under Section I of the Convention that are relevant to his or her situation (see Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, §§ 133-37, ECHR 2011; Hirsi Jamaa and Others, cited above, § 74; Hassan v. the United Kingdom [GC], no. 29750/09, § 74, ECHR 2014; and M.N. and Others v. Belgium ( dec .) [GC], no. 3599/18, §§ 102-09 and 120, 5 March 2020). (b) Application of the above principles to the present case 129. It is not disputed before the Court that the events in issue occurred at the railway border checkpoint at Terespol and – on one occasion – the road border checkpoint at Czeremcha-Połowce. Both checkpoints are located at the border with the neighbouring State and are operated by the relevant units of the Polish Border Guard. In consequence, the presumption of the jurisdiction of the Polish State applies to all actions taken with respect to the applicants presenting themselves at those checkpoints. 130. Moreover, the events in question concern the procedure followed in respect of border checks, granting or refusing the applicants entry into Poland, and accepting for review their applications for international protection. All those procedures were conducted exclusively by the officials of the Polish State and were regulated by domestic and EU law. It is therefore evident that the actions complained of by the applicants were attributable to Poland and thereby fell within its jurisdiction within the meaning of Article 1 of the Convention (see M.A. and Others v. Lithuania, no. 59793/17, § 70, 11 December 2018). 131. In addition, Poland cannot circumvent its “jurisdiction” under the Convention by pointing out that the decisions concerning the refusal of entry into Poland were taken within a few hours of the applicants’ arrival on Polish territory and, in consequence, that the control process in respect of the applicants was of relatively short duration (see paragraph 120 above). 132. Accordingly, the Court concludes that the events giving rise to the alleged violations fall within Poland’s “jurisdiction”, within the meaning of Article 1 of the Convention. Exhaustion of domestic remedies 133. The Government submitted that the applications were inadmissible due to the non-exhaustion of domestic remedies. The parties’ submissions (a) The Government 134. The Government submitted that the applicants had failed to appeal against most of the decisions refusing them entry into Poland. They indicated that the option of appealing against those decisions to the head of the National Border Guard had been available to the applicants and would have resulted in the re-examination of the applicants’ cases. Moreover, in the event that the head of the National Border Guard upheld the decisions, the applicants could have lodged an appeal with the administrative court. 135. The Government indicated that in respect of a small number of instances in which the applicants had appealed against the refusal to grant them entry, the relevant proceedings were still pending before either the head of the National Border Guard (see paragraphs 43 and 62 above) or before the Warsaw Regional Administrative Court (see paragraphs 14, 18 and 57 above). Therefore, in the Government’s opinion, all three applications were premature. 136. The Government also referred to examples of judgments of the Warsaw Regional Administrative Court in which decisions concerning refusal of entry to Poland had been quashed. They submitted that the existence of such judgments proved that an appeal to the administrative court could have constituted an effective remedy in cases similar to the situation of the applicants. 137. Referring to the Guidelines on Human Rights Protection in the Context of Accelerated Asylum Procedures adopted by the Committee of Ministers (see paragraph 97 above), the Government argued that in the present cases the applicants had not presented any arguable claim that they would have faced a risk of persecution or inhuman and degrading treatment in Belarus or Russia and that the lack of suspensive effect of an appeal against the decision on the refusal of entry therefore did not render this remedy ineffective for the purposes of Article 35 § 1 of the Convention. (b) The applicants 138. The applicants submitted that the right to lodge an appeal against the decision refusing them entry did not constitute an effective remedy and that no other effective remedy was available to them. They indicated that an appeal to the head of the National Border Guard would not provide them with an independent and timely review of their cases that would protect them from being exposed to treatment that was in breach of Article 3 of the Convention. 139. In the first place, the applicants stressed that decisions concerning the refusal to grant them entry were immediately enforceable and that an appeal against them would not have suspensive effect. Moreover, such an examination would take considerable time. The applicants submitted that in all cases in which they had appealed, the head of the National Border Guard had upheld the decisions issued at first instance, and the proceedings were pending before the administrative courts. Such proceedings could take a few years to reach a conclusion. Given that they had been returned to Belarus, during this period the applicants would be deprived of protection from treatment that was in breach of Article 3 of the Convention. Moreover, as they had exceeded their ninety-day visa-free period of residence in Belarus, they were under constant threat of being deported to Russia, where they risked being subjected to torture and inhuman and degrading treatment. 140. In addition, they submitted that the National Border Guard was a hierarchical formation, subordinate to and supervised by the Minister of the Interior and Administration and as such implemented a wider governmental policy of not accepting for review applications for international protection submitted by refugees presenting themselves at the Polish border. Therefore, in the applicants’ opinion, any review executed by the head of the National Border Guard would not be independent. 141. The applicants also alleged that when they had been at the border checkpoints at Terespol and Czeremcha-Połowce they had not been duly informed of their right to appeal against the decisions of the officers of the Border Guard. They also submitted that the fact that they had been returned to Belarus had hindered the possibility of their lodging an appeal. They added that it was only thanks to the assistance of Polish lawyers that they had been able to lodge appeals against some of the decisions issued in their cases. The Court’s assessment (a) General principles 142. The Court has indicated numerous times that the rule of exhaustion of domestic remedies is based on the assumption – reflected in Article 13 of the Convention, with which it has close affinity – that there is an effective remedy available in respect of the alleged violation (see A.E.A. v. Greece, no. 39034/12, § 47, 15 March 2018). Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured. The effect of that provision is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. The scope of the Contracting States’ obligations under Article 13 varies, depending on the nature of the applicant’s complaint. However, the remedy required by Article 13 must be “effective” in practice as well as in law. The “effectiveness” of a “remedy” within the meaning of the Convention does not depend on the certainty of a favourable outcome for the applicant. Nor does the “authority” referred to in that provision necessarily have to be a judicial authority; however, if it is not, its powers and the guarantees that it affords are relevant in determining whether the remedy before it is effective (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000 ‑ XI, and Gebremedhin [Gaberamadhien], cited above, § 53). 143. In view of the importance that the Court attaches to Article 3 of the Convention and the irreversible nature of the damage that may result if a risk of torture or ill-treatment materialises, it has already held that the effectiveness of a remedy available to an applicant who alleges that his or her removal to a third State would expose him or her to treatment prohibited under Article 3 of the Convention imperatively requires close scrutiny by a national authority (see Shamayev and Others v. Georgia and Russia, no. 36378/02, § 448, ECHR 2005 ‑ III), independent and rigorous scrutiny of any claim that there exist substantial grounds for fearing a real risk of treatment breaching Article 3 (see Jabari v. Turkey, no. 40035/98, § 50, ECHR 2000 ‑ VIII), and a particularly prompt response (see Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 136, ECHR 2004 ‑ IV (extracts)); it also requires that the person concerned should have access to a remedy with automatic suspensive effect (see Čonka v. Belgium, no. 51564/99, §§ 81-83, ECHR 2002 ‑ I; Gebremedhin [Gaberamadhien], cited above, § 66; M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 293, ECHR 2011; and A.E.A. v. Greece, cited above, § 69). 144. The Court has reached a similar conclusion in relation to complaints made under Article 4 of Protocol No. 4 to the Convention, stating that a remedy against an alleged violation of this provision does not meet the requirements of effectiveness if it does not have suspensive effect. The notion of an effective remedy under the Convention requires that the remedy be capable of preventing the execution of measures that are contrary to the Convention and whose effects are potentially irreversible (see Čonka, § 79, and Hirsi Jamaa and Others, § 199, both cited above). (b) Application of the above principles to the present case 145. The Court observes that all the complaints raised by the applicants in the present cases (whether made under Article 3 of the Convention, Article 4 of Protocol No. 4 to the Convention, Article 13 of the Convention in conjunction with Article 3 of the Convention and Article 4 of Protocol No. 4 or under Article 34 of the Convention) relate to the same circumstances, namely the fact that the applicants were returned from the Polish border and sent back to Belarus without an asylum procedure being instigated. Therefore, the effectiveness of the remedy available to them has to be examined with regard to the execution of this measure, jointly for all of the complaints. 146. The Court notes that the applicants had the possibility of lodging an appeal against each of the decisions concerning refusal of entry within fourteen days of being informed of those decisions. However, there is no dispute that under Polish law such appeals would not have had suspensive effect on the return process (see paragraph 74 above). It follows that the applicants did not have access to a procedure by which their personal circumstances could be independently and rigorously assessed by any domestic authority before they were returned to Belarus (see M.A. and Others v. Lithuania, cited above, § 84). 147. In the instant case the applicants’ complaints concerned allegations that their return to Belarus would expose them to a real risk of suffering treatment contrary to Article 3 of the Convention. Therefore, the Court considers that the sole fact that an appeal against the decision on refusal of entry would not have had suspensive effect (and, in consequence, could not have prevented the applicants from being turned away to Belarus) is sufficient to establish that such an appeal – and any further appeals to the administrative court that could have been brought subsequently to it – did not constitute an effective remedy within the meaning of the Convention (see paragraph 143 above). Consequently, the Court does not deem it necessary to consider the remainder of the applicants’ arguments concerning the lack of adequate information and legal assistance in the appeal procedure, the lack of independence of the head of the National Border Guard, the potential length of the proceedings before the administrative courts, or the obstacles resulting from the need to lodge such an appeal from abroad. 148. Accordingly, the Court dismisses the Government’s objection concerning the non-exhaustion of domestic remedies. Conclusion on admissibility 149. The Court further notes that the applications are not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. They are not inadmissible on any other grounds and must therefore be declared admissible. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION 150. The applicants complained that they had been exposed to the risk of torture or inhuman or degrading treatment in Chechnya as a result of having been returned to Belarus, from where they would probably be sent back to Russia, and that their treatment by the Polish authorities had amounted to degrading treatment. They relied on Article 3 of the Convention, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 151. The Court observes that the applicants’ arguments focus on two different aspects of the alleged violation of Article 3 of the Convention: firstly, the risk that they would suffer inhuman and degrading treatment when sent back to Belarus and, subsequently, to Russia, and the fact that despite that risk the Polish authorities sent them back to Belarus without having properly reviewed their claims; and, secondly, the treatment of the applicants by the Polish authorities during the so-called “second line” border-control procedure. With respect to the latter aspect of this complaint, the applicants argued that the whole situation – that is to say, the fact that the statements they made at the border were bluntly disregarded and the fact that they were denied the procedure to which they were entitled under the law and instead returned to Belarus – constituted degrading treatment. Alleged violation of Article 3 of the Convention on account of the applicants being denied access to the asylum procedure and exposed to a risk of inhuman and degrading treatment and torture in ChechnyaThe parties’ submissions The parties’ submissions The parties’ submissions (a) The applicants 152. The applicants did not contest the Government’s submission that the Polish authorities were bound by both the domestic legislation and EU law regulating border checks (see paragraph 158 below). They noted, however, that all the legislation cited by the Government provided the protection of fundamental rights – particularly in respect of the non-refoulement principle. They submitted that the actions taken at the border checkpoints at Terespol and Czeremcha-Połowce had violated those provisions. 153. The applicants reiterated that each time that they had been interviewed at the second line of border control, they had expressed their wish to apply for international protection and had presented their respective accounts of undergoing persecution in Chechnya. In their opinion, the officers of the Border Guard had been bound to treat them as persons in search of international protection whose claims under Article 3 of the Convention should have been heard by the relevant domestic authority. Instead, the border guards had disregarded their statements and – in some cases – written applications for international protection. The applicants submitted that such a practice had been routine at the Polish-Belarusian border crossing at Terespol. 154. The applicants also argued that the official notes drafted by the officers of the Border Guard did not accurately reflect the content of the statements given by them and should not be regarded as constituting valid evidence of those statements. They noted that the official notes had been drafted in Polish (a language that the applicants did not understand) and had not been signed by them. They cited the decision of the Warsaw Regional Administrative Court of 2 June 2017 (case no. IV SA/Wa 3021/16), in which the domestic court had held that owing to its significance for the decision to refuse entry, each interview conducted at the border should have been recorded in the form of minutes signed by both the officer of the Border Guard and the foreigner interviewed. 155. The applicants alleged that their return to Belarus had put them at risk of being deported to Chechnya owing to the fact that Belarus was not a safe country for refugees from Russia. They cited official statistics according to which all applications for international protection made by Russian citizens in Belarus since 2004 had been refused. They also cited a few instances in which Russian citizens who had applied for international protection in Belarus (or had unsuccessfully tried to apply for it at Polish ‑ Belarusian border crossings and had returned to Belarus) had been deported to Russia or handed over directly to the Russian authorities. They stressed that in many of those cases the procedural rights of the persons deported or handed over to the Russian authorities had been disregarded. 156. The applicants submitted that they all had a history of being persecuted in Chechnya and had presented the border authorities with written statements concerning those facts, as well as – in respect of the applicant in case no. 40503/17 and the first and second applicants in case no. 43643/17 – psychologists’ opinions indicating that they were suffering the psychological consequences of being torture victims. The applicants relied on a number of reports describing the general situation in Chechnya as comprising extrajudicial executions, forced disappearances, the widespread use of torture, mistreatment and illegal detention. They indicated that instances of serious human rights abuses were not properly investigated by the Russian authorities. In the applicants’ opinion, those reports supported their claims related to their fear of being persecuted if returned to the Chechen Republic. 157. In addition, the applicants, relying on I.K. v. Austria (no. 2964/12, 28 March 2013), stated that according to the Court’s case ‑ law, the sole fact that Russia was a Party to the Convention did not automatically mean that the expulsion of asylum-seekers to Russia could not be considered to constitute a violation of Article 3 of the Convention. (b) The Government 158. The Government noted that the Polish-Belarusian border was at the same time the external border of the European Union. In consequence, the authorities that conducted border checks were bound by both domestic legislation and European Union law ( inter alia, the Schengen Borders Code). The Government also emphasised the main responsibilities of the Border Guard – namely, border protection and border traffic control, as well as the prevention of illegal migration and the entry into State territory of foreigners not fulfilling the conditions required. 159. The Government explained that all foreigners who presented themselves at the Polish-Belarusian border were subjected to the same procedure, which was regulated by Polish legislation and EU law. At the first line of border control their documents (travel documents and visas) were checked. If they did not fulfil the conditions for entry, they were directed to the second line of border control, at which detailed interviews were carried out by officers of the Border Guard. This interview, during which only an officer of the Border Guard and the foreigner in question were present, was a crucial element of this part of the border checks, and the statements given by a foreigner on that occasion would have been the only element allowing him or her to be identified as someone seeking international protection. In the event that it was evident from the statements made by the foreigner that he or she was seeking such protection, the application in this regard was accepted and forwarded to the relevant authority for review within forty-eight hours and the foreigner was directed to the Biała Podlaska Centre for Aliens. However, in the event that the foreigners in question expressed other reasons for their attempt to enter Poland (economic or personal, for example) a decision refusing entry was issued and immediately executed. 160. The Government emphasised that the above-mentioned procedure had its basis in the Schengen Borders Code and that the fact that the officers of the Border Guard complied with it resulted from Poland’s membership of the European Union. They stated that, when applying this procedure, the domestic authorities remained bound by the obligations they had entered into upon acceding to the Convention in the light of the presumption of the equivalence of the protection of EU law and the Convention, as established in the case-law of the Court. They invoked in particular the judgments in the cases of Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland ([GC], no. 45036/98, ECHR 2005 ‑ VI) and Avotiņš v. Latvia ([GC], no. 17502/07, 23 May 2016). 161. Referring to the circumstances of the present cases, the Government stated that on all occasions on which the applicants had arrived at the border checkpoints at Terespol and (in respect of the applicants in case no. 43643/17) at Czeremcha-Połowce they had been subjected to the second line of border control and interviewed by officers of the Border Guard. The Government submitted that at no point had any of the applicants given reasons that would have justified the granting of international protection. As a result, no applications had been forwarded to the head of the Aliens Office. 162. The Government stressed that all the applicants had arrived in Belarus some time before lodging their applications with the Court (almost a year with respect to the applicant in case no. 40503/17; four months with respect to the applicants in case no. 42902/17; and five months with respect to the applicants in case no. 43643/17). The applicants had not, in their oral statements given to the border guards, referred to any treatment that had been in breach of Article 3 of the Convention or any risk of their receiving such treatment while staying in Belarus. The Government submitted that the mere fact that the applicants were staying in Belarus illegally (as their visas had expired) did not automatically mean that they would run the risk of ill ‑ treatment, even if forced by the Belarusian authorities to return to Russia. In this connection the Government noted that Russia was a Contracting Party to the Convention and had undertaken to secure the fundamental rights guaranteed by the Convention. 163. With regard to the applicant in case no. 40503/17, the Government also noted that the statements given by him on two occasions to the officers of the Border Guard contradicted the content of the documents that he had been carrying with him (see paragraph 22 above). In the Government’s opinion, this undermined the credibility of that applicant and the accounts of his situation. 164. Accordingly, the Government submitted that in the present cases there was no evidence that the applicants were at risk of being subjected to treatment violating Article 3 of the Convention. (c) Third-party interveners 165. The third-party interveners submitted that it was prohibited for a Contracting Party to the Convention to refuse entry or to return a person to face a serious violation of human rights – including a violation of the prohibition on torture and inhuman or degrading treatment. They emphasised the special vulnerability of children in respect of asylum procedures and noted that children were particularly affected by being disoriented owing to the loss of familiar surroundings and relationships. The Court’s assessment (a) General principles 166. As the Court has stated on many occasions, the prohibition of inhuman or degrading treatment, enshrined in Article 3 of the Convention, is one of the most fundamental values of democratic societies. It is also a value of civilisation closely bound up with respect for human dignity, part of the very essence of the Convention (see Khlaifia and Others, cited above, § 158, and Ilias and Ahmed v. Hungary [GC], no. 47287/15, § 124, 21 November 2019). Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocol No. 1 and Protocol No. 4, Article 3 makes no provision for exceptions, and no derogation from it is permissible under Article 15 § 2 – even in the event of a public emergency threatening the life of the nation (see Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999 ‑ V, and Assenov and Others v. Bulgaria, 28 October 1998, § 93, Reports of Judgments and Decisions 1998 ‑ VIII). The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim’s conduct (see Chahal v. the United Kingdom, 15 November 1996, § 79, Reports 1996 ‑ V, and Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000 ‑ IV). 167. The Court has on many occasions acknowledged the importance of the principle of non-refoulement (see, for example, M.S.S. v. Belgium and Greece, cited above, § 286, and M.A. v. Cyprus, no. 41872/10, § 133, ECHR 2013 (extracts)). The Court’s main concern in cases concerning the expulsion of asylum ‑ seekers is “whether effective guarantees exist that protect the applicant against arbitrary refoulement, be it direct or indirect, to the country from which he or she has fled” (see, among other authorities, M.S.S. v. Belgium and Greece, cited above, § 286; Müslim v. Turkey, no. 53566/99, §§ 72-76, 26 April 2005; and T.I. v. the United Kingdom (dec.), no. 43844/98, ECHR 2000 ‑ III). 168. The Court reiterates that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see, among other authorities, Hirsi Jamaa and Others, cited above, § 113, and Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006 ‑ XII). However, the expulsion of an alien by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if deported, would face a real risk of being subjected to treatment breaching Article 3 in the destination country. In these circumstances, Article 3 implies an obligation not to return the person in question to that country (see Saadi v. Italy [GC], no. 37201/06, §§ 124-25, ECHR 2008; F.G. v. Sweden [GC], no. 43611/11, §§ 110-11, 23 March 2016; and Ilias and Ahmed, cited above, § 126). Since protection against the treatment prohibited by Article 3 is absolute, there can be no derogation from that rule (see Saadi, cited above, § 138). 169. In cases concerning the return of asylum-seekers, the Court has observed that it does not itself examine actual asylum applications. Its main concern is whether effective guarantees exist that protect the applicant against arbitrary refoulement, be it direct or indirect, to the country from which he or she has fled (see, for example, M.S.S. v. Belgium and Greece, cited above, § 286). The Court’s assessment of the existence of a real risk must necessarily be a rigorous one (see, for example, F.G. v. Sweden, cited above, § 113) and inevitably involves an examination by the competent national authorities and later by the Court of the conditions in the receiving country against the standards of Article 3 (see Ilias and Ahmed, cited above, § 127). 170. It is in principle for the person seeking international protection in a Contracting State to submit, as soon as possible, his or her claim for asylum, together with reasons in support of it, and to adduce evidence capable of proving that there are substantial grounds for believing that deportation to his or her home country would entail a real and concrete risk of treatment in breach of Article 3 (see F.G. v. Sweden, cited above, § 125). However, the Court acknowledges that, owing to the special situation in which asylum-seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof (ibid., § 113). That assessment must focus on the foreseeable consequences of the applicant’s return to the country of destination, in the light of the general situation there and of his or her personal circumstances (see Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 108, Series A no. 215). 171. Moreover, the Court has noted that the exact content of the expelling State’s duties under the Convention may differ depending on whether it removes applicants to their country of origin or to a third country (see Ilias and Ahmed, cited above, § 128). In cases where the authorities choose to remove asylum-seekers to a third country, the Court has stated that this leaves the responsibility of the Contracting State intact with regard to its duty not to deport them if substantial grounds have been shown for believing that such action would expose them, directly (that is to say in that third country) or indirectly (for example, in the country of origin or another country), to treatment contrary to, in particular, Article 3 (see M.S.S. v. Belgium and Greece, cited above, §§ 342-43 and 362-68). 172. Consequently, the Court has indicated that where a Contracting State seeks to remove an asylum-seeker to a third country without examining the asylum request on the merits, the main issue before the expelling authorities is whether or not the individual will have access to an adequate asylum procedure in the receiving third country. This is because the removing country acts on the basis that it would be for the receiving third country to examine the asylum request on the merits, if such a request is made to the relevant authorities of that country (see Ilias and Ahmed, cited above, § 131). 173. The Court has further clarified that in all cases of removal of an asylum-seeker from a Contracting State to a third intermediary country without examination of the asylum request on the merits, regardless of whether or not the receiving third country is an EU member State or a State Party to the Convention, it is the duty of the removing State to examine thoroughly the question of whether or not there is a real risk of the asylum-seeker being denied access, in the receiving third country, to an adequate asylum procedure, protecting him or her against refoulement. If it is established that the existing guarantees in this regard are insufficient, Article 3 implies a duty that the asylum-seeker should not be removed to the third country concerned (ibid., § 134). (b) Application of the above principles to the present case 174. The Court notes first of all that the Government disputed whether the applicants, when presenting themselves on numerous occasions at the Polish border, expressed a wish to lodge applications for international protection or communicated any fear for their own safety. The Government submitted that the applicants did not raise any claims in that respect and – in consequence – could not be considered asylum-seekers. The Court attaches more weight to the applicants’ version of the events at the border because it is corroborated by a large number of accounts collected from other witnesses by the national human rights institutions (in particular by the Children’s Ombudsman – see paragraphs 109-14 above). The reports by those bodies indicate the existence of a systemic practice of misrepresenting the statements given by asylum-seekers in the official notes drafted by the officers of the Border Guard serving at the border checkpoints between Poland and Belarus. Moreover, the irregularities in the procedure concerning the questioning of foreigners arriving at the Polish-Belarusian border at the relevant time, including the lack of a proper investigation into the reasons for which they sought entry into Poland, were confirmed by judgments of the Supreme Administrative Court (see paragraphs 76-77 above). 175. The applicants’ account of the statements that they gave at the border is also corroborated by a number of documents presented by them to the Court at all stages of the proceedings, especially by copies of the applications for international protection carried by the applicants at the time when they presented themselves at the border. The Court does not find it credible that the applicants possessed those documents (which they submitted to the Court – specifically when requesting that interim measures be indicated in their cases) but failed to hand them to the officers of the Border Guard who were about to decide whether to admit them into Poland or to return them to Belarus. Moreover, the applicants’ version of events in this respect is also supported by the fact that they made numerous attempts to cross the border and sought representation by Polish and Belarusian lawyers, who assisted them with drafting their statements, and who – in the case of the applicants in cases nos. 40503/17 and 43643/17 – on one occasion were present at the border in order to provide representation to the applicants, but were not allowed to meet with them (see paragraphs 11 and 54 above). 176. In any event, the Court points to the fact that the applicants’ applications for international protection, which comprised at least a general account of the reasons for their fear of persecution, and the documents provided by them in support of their claims were sent to the Government at the times when they were informed by the Court of the application of the interim measures in the applicants’ cases – namely, on 8, 16 and 20 June 2017 respectively (see paragraphs 16, 33 and 59 above). Furthermore, on 14 and 30 June and 4 July 2017 respectively, the Court (the duty judge) informed the Government that in the light of the fact that those documents had been transferred to the Government, it considered that the applicants had lodged requests for international protection (see paragraphs 21, 37 and 61 above). Information about the applicants’ claims was also subsequently submitted by electronic means directly to the Border Guard by the applicants’ representatives (see paragraphs 23, 35 and 64 above). It follows that, from those dates onwards, the Government were aware of the applications made by the applicants and of the existence of the documents substantiating them and were obliged to take those materials into account when assessing each applicant’s situation. 177. Accordingly, the Court cannot accept the argument of the Polish Government that the applicants had presented no evidence whatsoever that they were at risk of being subjected to treatment violating Article 3. The applicants indicated individual circumstances that – in their opinion – substantiated their applications for international protection and produced a number of documents (their testimony concerning a history of torture or threats, psychologists’ opinions, and official documents) substantiating their claims. They also raised arguments concerning the reasons for not considering Belarus to be a safe third country for them and why, in their opinion, returning them to Belarus would put them at risk of “chain refoulement ”. Those arguments were substantiated by the official statistics, which indicated that the asylum procedure in Belarus was not effective as far as Russian citizens were concerned. 178. The Court is therefore satisfied that the applicants could arguably claim that there was no guarantee that their asylum applications would be seriously examined by the Belarusian authorities and that their return to Chechnya could violate Article 3 of the Convention. The assessment of those claims should have been carried out by the Polish authorities acting in compliance with their procedural obligations under Article 3 of the Convention. Moreover, the Polish State was under an obligation to ensure the applicants’ safety, in particular by allowing them to remain within Polish jurisdiction until such time as their claims had been properly reviewed by a competent domestic authority. Taking into account the absolute nature of the right guaranteed under Article 3, the scope of that obligation was not dependent on whether the applicants had been carrying documents authorising them to cross the Polish border or whether they had been legally admitted to Polish territory on other grounds. 179. Moreover, in the Court’s view, in order for the State’s obligation under Article 3 of the Convention to be effectively fulfilled, a person seeking international protection must be provided with safeguards against having to return to his or her country of origin before such time as his or her allegations are thoroughly examined. Therefore, the Court considers that, pending an application for international protection, a State cannot deny access to its territory to a person presenting himself or herself at a border checkpoint who alleges that he or she may be subjected to ill-treatment if he or she remains on the territory of the neighbouring State, unless adequate measures are taken to eliminate such a risk. 180. The Court furthermore notes the Government’s argument that by refusing the applicants entry into Poland, the respondent State had acted in accordance with the legal obligations incumbent on it arising from Poland’s membership of the European Union. 181. The Court indicates, however, that the provisions of European Union law, including the Schengen Borders Code and Directive 2013/32/EU, clearly embrace the principle of non-refoulement, as guaranteed by the Geneva Convention, and also apply it to persons who are subjected to border checks before being admitted to the territory of one of the member States (see paragraphs 78-84 above). Those provisions (i) are clearly aimed at providing all asylum-seekers with effective access to the proper procedure by which their claims for international protection may be reviewed (see also Sharifi and Others v. Italy and Greece, no. 16643/09, § 169, 21 October 2014), and (ii) oblige the State to ensure that individuals who lodge applications for international protection are allowed to remain in the State in question until their applications are reviewed (see paragraph 91 above). 182. The Court thus notes that, under the Schengen Borders Code, the Polish authorities could have refrained from sending the applicants back to Belarus if they had accepted their application for international protection for review by the relevant authorities. Consequently, the Court considers that the impugned measure taken by the Polish authorities fell outside the scope of Poland’s strict international legal obligations (see, for a similar outcome, M.S.S. v. Belgium and Greece, § 340, and Ilias and Ahmed, § 97, both cited above). 183. The Court also notes that the very real character of the risk of ill ‑ treatment in the present cases is illustrated by the alleged events following the return of the first applicant in case no. 42902/17 to Belarus and, subsequently, to Russia, where he claims to have been captured, detained and tortured (see paragraphs 44-45 and 47 above). 184. In the light of the foregoing, the Court considers that the applicants did not have the benefit of effective guarantees that would have protected them from exposure to a real risk of being subjected to inhuman or degrading treatment, as well as torture. 185. The fact that no proceedings in which the applicants’ applications for international protection could be reviewed were initiated on the thirty ‑ five, eight and nineteen or more occasions when the respective applicants were at the Polish border crossings constituted a violation of Article 3 of the Convention. Moreover, given the situation in the neighbouring State, as described above, the Polish authorities, by failing to allow the applicants to remain on Polish territory pending the examination of their applications, knowingly exposed them to a serious risk of chain refoulement and treatment prohibited by Article 3 of the Convention. 186. There has accordingly been a violation of Article 3 of the Convention. Alleged violation of Article 3 of the Convention on account of the applicants’ treatment by the Polish authorities during border checks 187. The applicants also argued that there had been a violation of the prohibition of degrading treatment on account of the manner in which they had been treated during border checks at the Terespol and Czeremcha-Połowce border checkpoints (see paragraph 151 above). In that respect, they submitted that they had been placed in a situation in which statements made by them at the border had been bluntly disregarded by the border guards and that they had been denied the procedure to which they were entitled under the domestic law. The Court notes that those arguments are closely related to the issue of the applicants’ lack of access to the asylum procedure. Consequently, having regard to the finding of a violation of Article 3 on account of the applicants’ exposure to the risk of inhuman and degrading treatment, as well as torture, in Chechnya and their lack of access to the asylum procedure (see paragraph 186 above), the Court considers that it is not necessary to examine whether there has been a violation of Article 3 with respect to the way in which the applicants were treated during the border checks. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 4 TO THE CONVENTION 188. The applicants furthermore complained that they had been subjected to a collective expulsion of aliens. They relied on Article 4 of Protocol No. 4 to the Convention, which provides: “Collective expulsion of aliens is prohibited.” The parties’ submissionsThe applicants The applicants The applicants 189. The applicants submitted that various human rights organisations had reported an increase in the number of allegations made by individuals (mostly of Chechen origin) that despite their repeated and clearly formulated statements at the Polish-Belarusian border indicating a wish to lodge an application for international protection, they had been denied such a possibility. They referred, inter alia, to the above-mentioned report by the Polish Ombudsman, indicating that it proved that the interviews carried out by the officers of the Border Guard had not been aimed at establishing the individual situation of foreigners arriving at the Polish border but at demonstrating that the reasons such foreigners sought entry into Poland were mainly of an economic nature (see paragraphs 98-105 above). They noted that foreigners, even if they directly expressed their fear of torture or other forms of persecution, were still asked in detail about their economic, professional and personal situation and not about their experiences relating to any fears that they had expressed. Statements lodged by foreigners expressing the intention to lodge applications for international protection and the reasons indicated therefor were ignored. 190. The applicants also referred to the statements given to the press by the Polish Minister of the Interior and Administration on 31 August 2016 (see paragraph 115 above). The applicants also submitted that the statistics presented by the Government showed that in 2017 there had been a significant decrease in the number of applications for international protection being received at the Polish-Belarusian border (particularly at the Terespol border checkpoint). According to the applicants, this decrease had resulted from the execution by the Polish Border Guard of a policy adopted by the Government of pushing back refugees. 191. The applicants furthermore argued that the collective nature of the policy of expelling foreigners was well illustrated by the events that had taken place on 17 March 2017, when a number of persons seeking entry into Poland (including the applicants in cases nos. 40503/17 and 43643/17) had been returned to Belarus without the possibility of meeting with their representatives (see paragraphs 11 and 54 above). 192. The applicants also submitted that as a matter of general practice neither lawyers nor representatives of non-governmental organisations or representatives of the UNHCR were allowed to observe or take part in interviews conducted at the second line of border control. In their opinion, the lack of any possibility for those being interviewed to consult a lawyer or a member of an organisation assisting refugees demonstrated the lack of transparency of the actions taken by the Border Guard. It was also one of the elements supporting the conclusion that the applicants had not been provided with the possibility to have their cases reviewed individually and, in consequence, that their expulsion had been of a collective nature. The Government 193. The Government submitted that every decision refusing entry into Poland issued with respect to the applicants had been based on an individual assessment of their situation and, in consequence, had not involved the collective expulsion of aliens. 194. Firstly, the Government reiterated that as the applicants had not had valid visas to enter Poland they had been directed to the second line of border control, at which individual interviews had been carried out in a language understood by the applicants. Those interviews had been aimed at obtaining full knowledge of the reasons for which the applicants had arrived at the border without the necessary documents. Each adult applicant had been interviewed separately; the minor applicants had not been interviewed – instead, the decisions issued in respect of their parents had also applied to them. Secondly, the Government submitted that each interview had been recorded in the form of an official note detailing the reasons given by each of the applicants for seeking entry into Poland and – if necessary – any other circumstances in respect of their cases. Thirdly, the Government indicated that the decisions denying entry had been prepared as separate documents in respect of each of the adult applicants (that is to say, on an individual basis) after a careful examination of his or her respective situation. All the applicants had been presented with the decisions. In some cases the applicants had refused to sign the respective decision and accept a copy thereof. Fourthly, the Government emphasised the fact that the number of attempts a foreigner had made to cross the border did not influence the decisions taken by the border guards. 195. The Government stated that the decisions concerning refusal of entry had been issued on the standardised form and – in the light of that fact – might have seemed similar to each other; however, they had in each instance been issued on the basis of an individual assessment of the situation of each of the applicants. 196. The Government also stressed that the fact that the decisions concerning refusal of entry had been taken on the basis of an individual assessment of each foreigner’s individual situation was corroborated by the relevant statistics. They submitted that in 2016 at the Terespol border checkpoint applications from 8,313 persons had been received and forwarded to the head of the Aliens Office for review, whereas in the first half of 2017 the applications of 1,212 persons had been received. The Court’s assessmentGeneral principles General principles General principles 197. According to the Court’s case-law, collective expulsion is to be understood as “any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group” (see Sultani v. France, no. 45223/05, § 81, ECHR 2007 ‑ IV (extracts), and Georgia v. Russia (I) [GC], no. 13255/07, § 167, ECHR 2014 (extracts)). This does not mean, however, that where the latter condition is satisfied the background to the execution of an expulsion order plays no further role in determining whether there has been compliance with Article 4 of Protocol No. 4 (see Čonka, § 59, and Khlaifia and Others, § 237, both cited above). 198. The Court has previously held that the notion of expulsion used in Article 4 of Protocol No. 4 should be interpreted in the generic meaning in current use (that is to say “to drive away from a place”) (see Hirsi Jamaa and Others, cited above, § 174) and should be applied to all measures that may be characterised as constituting a formal act or conduct attributable to a State by which a foreigner is compelled to leave the territory of that State, even if under domestic law such measures are classified differently (for instance as the “refusal of entry with removal” rather than “expulsion” or “deportation” – see, in particular, Khlaifia and Others, cited above, § 243). This understanding of the notion of expulsion has been recently confirmed by the Grand Chamber in N.D. and N.T. v. Spain (cited above, § 185). 199. With regard to the scope of the application of Article 4 of Protocol No. 4, the Court notes that the wording of this provision, unlike Article 2 of Protocol No. 4 and Article 1 of Protocol No. 7, does not refer to the legal situation of the persons concerned. Moreover, it can be seen from the commentary on the draft of Protocol No. 4 that, according to the Committee of Experts, the aliens to whom Article 4 refers are not only those lawfully residing within a State’s territory, but also “all those who have no actual right to nationality in a State, whether they are merely passing through a country or reside or are domiciled in it, whether they are refugees or entered the country on their own initiative, or whether they are stateless or possess another nationality” (see Article 4 of the Committee’s final draft, p. 505, § 34; see also Georgia v. Russia (I), cited above, § 168). 200. In accordance with that interpretation, the Court has applied Article 4 of Protocol No. 4 not only to persons who were residing within the territory of a State but also to persons who arrived at the territory of the respondent State and were stopped and returned to the originating State (see Čonka, § 63, and Sultani, §§ 81-84, both cited above), irrespective of whether or not they arrived in the respondent State legally (see, among other authorities, Sharifi and Others, §§ 210-13, and Georgia v. Russia (I), § 170, both cited above). The Court has also applied Article 4 of Protocol No. 4 to persons who were intercepted on the high seas while trying to reach the territory of a respondent State and were stopped and returned to the originating State (see Hirsi Jamaa and Others, cited above, § 182), as well as to persons who were apprehended in an attempt to cross a national border by land and were immediately removed from a State’s territory by border guards (see N.D. and N.T. v. Spain, cited above, § 187). 201. The purpose of Article 4 of Protocol No. 4 is to prevent States from being able to return a certain number of foreigners without examining their personal circumstances and therefore without enabling them to put forward their arguments against the measure taken by the relevant authority (see Sharifi and Others, § 210, and Hirsi Jamaa and Others, § 177, both cited above). In order to determine whether there has been a sufficiently individualised examination, it is necessary to consider the circumstances of each such case and to verify whether a decision to return a foreigner took into consideration the specific situation of the individuals concerned (see Hirsi Jamaa and Others, cited above, § 183). Regard must also be had to the particular circumstances of the expulsion and to the “general context at the material time” (see Georgia v. Russia (I), cited above, § 171). 202. As the Court has previously observed, the fact that a number of aliens are subject to similar decisions does not in itself lead to the conclusion that there has been a collective expulsion if each person concerned has been given the opportunity to put arguments against his or her expulsion to the relevant authorities on an individual basis (see, among other authorities, M.A. v. Cyprus, §§ 246 and 254, and Khlaifia and Others, § 239, both cited above). In the past, when assessing the collective nature of expulsion, the Court has taken into consideration certain factors such as the fact that the decisions concerning the return of the applicants made no reference to their asylum request (even though the asylum procedure had not yet been completed), that the actions aimed at the return of foreigners had taken place in conditions that made it very difficult for the applicants to contact a lawyer, and that the relevant political bodies had announced that there would be operations of that kind (see Čonka, cited above, §§ 60 ‑ 63). The Court has also considered whether, before being subjected to “automatic returns”, applicants have had any effective possibility of seeking asylum (see Sharifi and Others, cited above, §§ 214-25). 203. In addition, the Court has taken the applicants’ own conduct into consideration when assessing the protection to be afforded under Article 4 of Protocol No. 4. According to the Court’s well-established case-law, there is no violation of Article 4 of Protocol No. 4 if the absence of an individual expulsion decision can be attributed to the applicant’s own culpable conduct (see Khlaifia and Others, cited above, § 240). The Court has held, in particular, that a lack of active cooperation on the part of applicants with the available procedure for conducting an individual examination of their circumstances or recourse to unauthorised and clearly disruptive means of attempting to enter the State’s territory despite the existence of a genuine and effective access to means of legal entry might prompt the Court to find that the Government cannot be held responsible for the fact that the applicants’ circumstances were not individually examined (see N.D. and N.T. v. Spain, cited above, § 200). Application of the above principles to the present case 204. The Court must first address whether the decisions to refuse the applicants entry into Poland issued at the border checkpoints constituted an “expulsion” within the meaning of Article 4 of Protocol No. 4. In this context, the Court notes that in the case of Hirsi Jamaa and Others it held that Article 4 of Protocol No. 4 applied to migrants intercepted by the authorities of a State on the high seas and their removal to their countries of transit or origin (cited above, § 180). Given that the prohibition on the collective expulsion of aliens expressed in that provision was held to be applicable in respect of the actions of a State, the effect of which was to prevent migrants from reaching the borders of that State, then it is even more evident that it applies to a situation in which the aliens present themselves at a land border and are returned from there to the neighbouring country (see also N.D. and N.T. v. Spain, cited above, § 187). 205. Furthermore, as held above (see paragraphs 129-32 above), when subjected to border checks, the applicants were under the territorial jurisdiction of the Polish authorities. As a result of the decisions refusing them entry into Poland they were sent back, against their will, to Belarus, where they alleged that they remained at risk of being returned to Russia. The Court therefore concludes that they were expelled within the meaning of this provision (see Khlaifia and Others, cited above, § 243). It remains to be established whether that expulsion was “collective” in nature. 206. In this context the Court notes the Government’s argument that each time the applicants presented themselves at the Polish border, they were interviewed by the officers of the Border Guard and received individual decisions concerning the refusal to allow them entry into Poland. However, the Court has already indicated that it considers that during this procedure the applicants’ statements concerning their wish to apply for international protection were disregarded (see paragraph 174 above) and that even though individual decisions were issued with respect to each applicant, they did not properly reflect the reasons given by the applicants to justify their fear of persecution. The Court also points to the fact that the applicants were not allowed to consult lawyers and were denied access to them even when – in respect of the applicants in cases nos. 40503/17 and 43643/17 – their lawyers were at the border checkpoint and demanded to be allowed to meet with their clients (see paragraphs 11 and 54 above). 207. The Court further stresses that the applicants in the present case were trying to make use of the procedure of lodging applications for international protection that should have been available to them under domestic law. They attempted to cross the border in a legal manner, using an official checkpoint and subjecting themselves to border checks as required by the relevant law. Hence, the fact that the State refused to entertain their arguments concerning the justification for their applications for international protection cannot be attributed to their own conduct (compare N.D. and N.T. v. Spain, cited above, § 231). 208. Moreover, the independent reports concerning the situation (in particular regarding the border checkpoint at Terespol) indicate that the applicants’ cases constituted an exemplification of a wider State policy of refusing entry to foreigners coming from Belarus, regardless of whether they were clearly economic migrants or whether they expressed a fear of persecution in their countries of origin. Those reports noted a consistent practice of: holding very brief interviews, during which the foreigners’ statements concerning the justification for their seeking international protection were disregarded; emphasis being placed on the arguments that allowed them to be categorised as economic migrants; and misrepresenting the statements made by the foreigners in very brief official notes, which constituted the sole basis for issuing refusal-of-entry decisions and returning them to Belarus, even in the event that the foreigners in question had made it clear that they wished to apply for international protection in Poland (see paragraphs 98-114 above). 209. The conclusion concerning the existence of a wider State policy of not accepting for review applications for international protection and of returning individuals seeking such protection to Belarus is also supported by the statement of the then Minister of the Interior and Administration referred to by the applicants (see paragraphs 115 and 190 above). The statement in question, formulated by the Minister, who at the time oversaw the Border Guard, clearly expressed opposition towards accepting migrants from the Chechen Republic (see, mutatis mutandis, El ‑ Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 163, ECHR 2012). 210. The Court concludes that the decisions refusing entry into Poland issued in the applicants’ cases were not taken with proper regard to the individual situation of each of the applicants and were part of a wider policy of not receiving applications for international protection from persons presenting themselves at the Polish-Belarusian border and of returning those persons to Belarus, in violation of domestic and international law. Those decisions constituted a collective expulsion of aliens within the meaning of Article 4 of Protocol No. 4. 211. Accordingly, the Court considers that in the present case there has been a violation of Article 4 of Protocol No. 4 to the Convention. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION AND ARTICLE 4 OF PROTOCOL No. 4 TO THE CONVENTION 212. The applicants furthermore complained that they had not been afforded an effective remedy under Polish law by which to lodge with the domestic authorities their complaints under Article 3 of the Convention and Article 4 of Protocol No. 4. They relied on Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” The parties’ submissionsThe applicants The applicants The applicants 213. The applicants stressed that they had presented substantial grounds for believing that if they were returned to Belarus they would face the risk of a violation of Article 3. In consequence, they should have had access to a remedy with automatic suspensive effect. However, the decisions concerning refusal of entry had been enforceable immediately and the lodging of appeals against those decisions would not have suspended their execution. 214. The applicants reiterated that, in their opinion, the head of the National Border Guard (who acted as the second-instance administrative authority in respect of cases of refusal of entry) could not be considered to constitute an independent body. In addition, the applicants submitted that the relevant statistics demonstrated that there was no genuine chance of their receiving a positive decision from the head of the National Border Guard, given the fact that in the period from 1 January 2016 until 15 September 2017 that body had received 203 appeals against decisions refusing entry into Poland. All decisions appealed against in this period had been upheld. 215. The applicants acknowledged that in the event of the head of the National Border Guard issuing a negative decision they could have lodged an appeal with the administrative courts, but they argued that proceedings before that court could take up to three years in total. In their view that rendered such an appeal ineffective, given the circumstances of their cases. The Government 216. The Government submitted that the applicants had had at their disposal an effective remedy – namely an appeal to the head of the National Border Guard against the decisions concerning refusal of entry. The Government acknowledged that an appeal did not have suspensive effect, but they argued that the domestic provisions were in this respect in accordance with European Union law, which obliged them to ensure that a third-country national who had been refused entry into a member State did not enter the territory of that State. The Government emphasised that the lack of suspensive effect of the appeal in question resulted from the special character of the decision on refusal of entry. They argued that if a foreigner did not fulfil the conditions for entry into Poland, the decision on refusal of entry had to be executed immediately, as there would be no grounds for the foreigner in question to remain on the territory of Poland. The Government also pointed out that in the event that the head of the National Border Guard issued a negative decision, domestic law provided the possibility of lodging a complaint with the administrative court. 217. The Government noted that in each of the three cases, the applicants had only appealed against some of the decisions concerning the refusal to allow them entry and that in respect of all the cases, proceedings were still pending. 218. Moreover, the Government argued that the decisions to refuse the applicants entry had been taken individually by officers of the Border Guard after taking into account the conditions existing at the moment when the decision had been taken. They stressed that although proceedings concerning the applicants’ appeals were pending, nothing was stopping them from coming to the border checkpoint again and – in the event that they fulfilled the conditions for entry – being admitted to the territory of Poland. The Court’s assessment 219. The Court has already concluded that the return of the applicants to Belarus amounted to a violation of Article 3 of the Convention and Article 4 of Protocol No. 4 (see paragraphs 186 and 211 above). The complaints lodged by the applicants on these points are therefore “arguable” for the purposes of Article 13 (see, in particular, Hirsi Jamaa and Others, cited above, § 201). Furthermore, the Court has ruled that the applicants in the present cases were to be treated as asylum-seekers (see paragraph 174 above); it has also established that their claims concerning the risk that they would be subjected to treatment in breach of Article 3 if returned to Belarus were disregarded by the authorities responsible for border control and that their personal situation was not taken into account (see paragraph 210 above). 220. In addition, the Court has already held that an appeal against a refusal of entry and a further appeal to the administrative courts were not effective remedies within the meaning of the Convention because they did not have automatic suspensive effect (see paragraph 147 above). The Government did not indicate any other remedies which might satisfy the criteria under Article 13 of the Convention. Accordingly, the Court finds that there has been a violation of Article 13 of the Convention taken in conjunction with Article 3 of the Convention and Article 4 of Protocol No. 4 to the Convention. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION 221. Lastly, the applicants complained that the Government had failed to comply with the interim measures indicated by the Court in the applicants’ cases. They relied on Article 34 of the Convention, which provides: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” Rule 39 of the Rules of Court provides: “1. The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may, at the request of a party or of any other person concerned, or of their own motion, indicate to the parties any interim measure which they consider should be adopted in the interests of the parties or of the proper conduct of the proceedings. 2. Where it is considered appropriate, immediate notice of the measure adopted in a particular case may be given to the Committee of Ministers. 3. The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may request information from the parties on any matter connected with the implementation of any interim measure indicated. 4. The President of the Court may appoint Vice-Presidents of Sections as duty judges to decide on requests for interim measures.” The parties’ submissionsThe applicants The applicants The applicants 222. The applicants argued that the failure by the Government to comply with the interim measures indicated by the Court in respect of their cases constituted a violation of Article 34. They indicated that they had provided the Court with sufficient information in support of their requests for interim measures, which had resulted in those measures being granted. The applicants stressed that according to the Court’s case-law, it was not open to a Contracting State to substitute its own judgment for that of the Court. Therefore, for as long as the measure was in place, the Government in question were bound by it. The applicants pointed out that in respect of their cases the Government had contested the interim measures from the very day on which they had been indicated to them, and had deliberately failed to comply with them. 223. The applicants reiterated that the period during which they could stay in Belarus without a visa had expired and that they were at risk of being returned to Russia, where they faced the danger of treatment breaching Article 3 of the Convention. They also indicated that, after the Government’s non-compliance with the interim measures, the applicants in all three cases had decided to leave Belarus for fear of being deported and had continued to flee in fear for their security. 224. Moreover, the applicants pointed out that the fact that they were represented by lawyers who had lodged applications on their behalf was irrelevant for the purposes of an assessment of the alleged violation of Article 34 of the Convention with regard to the Government’s non ‑ compliance with the above-mentioned interim measure. The applicants in cases nos. 40503/17 and 43643/17, who were represented by lawyers practicing in Poland, also noted that the fact that they could not enter Poland made contact with their lawyers more difficult and deprived them of the possibility to directly participate in the proceedings concerning their appeals against the decisions concerning refusal of entry that were pending before the domestic authorities. The Government 225. The Government argued that the respondent State had created no hindrance to the effective exercise of the applicants’ right of application. The Government stated in particular that their not executing the interim measures indicated by the Court on 8 and 16 June and 20 July 2017 respectively had not breached – in the circumstances of the present cases – Article 34 of the Convention. They indicated that the applicants’ right provided by this provision remained effective and had been exercised by the applicants. They also indicated that the required conditions for the imposition of the interim measures had not been met and that the measures ought therefore to be lifted. 226. The Government pointed out that Rule 39 of the Rules of Court could be applied only in restricted circumstances, when there was an imminent risk of irreparable damage. In the Government’s opinion, in the applicants’ cases no imminent risk of irreversible harm to any of the rights guaranteed by the Convention had occurred. The applicants had remained on the territory of Belarus for a significant period of time (almost a year in respect of the applicant in case no. 40503/17; four months in respect of the applicants in case no. 42902/17; and five months in respect of the applicants in case no. 43643/17) before they had submitted their applications for interim measures. According to the Government, they had not faced any real risk of harm; nor had they proved that continuing to stay in Belarus would give rise to such a risk. 227. Moreover, the Government submitted that the applicants’ stay in Belarus had in no way hindered their communications with the Court and had not negatively impacted their right to lodge and pursue their applications, especially as they had been represented at all stages of the proceedings before the Court. The Government also emphasised that the possibility for the applicants to lodge an application against Poland was not dependent on their presence on Polish territory and stressed that the Convention did not create an obligation for the respondent State to allow unauthorised entry onto its territory to anyone who lodged an application against it with the Court. Third-party interveners 228. The third-party interveners submitted that the very nature and function of interim measures necessitated that they have binding effect. They argued that full compliance with an interim measure required the State to rigorously apply and enforce the measure indicated by the Court. They also stressed that the binding force of interim measures on all international authorities was based on the necessity to preserve the facts pending adjudication of the case and to prevent irreparable damage to the interests of one of the parties before human rights courts and tribunals; it also served to preserve the capacity of a court or tribunal to provide real and effective protection of the human rights guaranteed by the governing treaty. The third-party interveners referred, inter alia, to interim measures that could be indicated in proceedings before the Inter-American Court of Human Rights, the Inter-American Commission on Human Rights or the UN Human Rights Committee. The Court’s assessmentGeneral principles General principles General principles 229. The Court reiterates that, pursuant to Article 34 of the Convention, Contracting States undertake to refrain from any act or omission that may hinder the effective exercise of the right of individual application, and this has been consistently reaffirmed as a cornerstone of the Convention system (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 102, ECHR 2005-I). Although the object of Article 34 is essentially that of protecting an individual against any arbitrary interference by the authorities, it does not merely compel States to abstain from such interference. There are positive obligations inherent in Article 34 requiring the authorities to furnish all necessary facilities to make possible the proper and effective examination of applications. Such an obligation will arise in particular in situations where applicants are particularly vulnerable (see Iulian Popescu v. Romania, no. 24999/04, § 33, 4 June 2013, and Amirov v. Russia, no. 51857/13, § 65, 27 November 2014). 230. According to the Court’s established case-law, since interim measures provided for by Rule 39 are indicated by the Court for the purpose of ensuring the effectiveness of the right of individual petition, a respondent State’s failure to comply with such measures entails a violation of the right of individual application (see Mamatkulov and Askarov, cited above, § 125; Abdulkhakov v. Russia, no. 14743/11, § 222, 2 October 2012; and Paladi v. Moldova [GC], no. 39806/05, § 88, 10 March 2009). 231. The crucial significance of interim measures is highlighted by the fact that the Court issues them, as a matter of principle, only in exceptional cases and on the basis of a rigorous examination of all the relevant circumstances. In most such cases, the applicants face a genuine threat to life and limb, with the ensuing real risk of grave, irreversible harm, in breach of the core provisions of the Convention. The vital role played by interim measures in the Convention system not only underpins their binding legal effect on the States concerned, as upheld by the established case-law, but also commands that the utmost importance be attached to the question of the States Parties’ compliance with the Court’s indications in that regard. Any laxity on this question would unacceptably weaken the protection of the core rights in the Convention and would not be compatible with its values and spirit (see Soering v. the United Kingdom, 7 July 1989, § 88, Series A no. 161; Mamatkulov and Askarov, cited above, §§ 100 and 125; and Amirov, cited above, § 67). 232. Furthermore, the Court would stress that it follows from the very nature of interim measures that a decision on whether they should be indicated in a given case will often have to be made within a very short space of time, with a view to preventing imminent potential harm from being done. Consequently, the full facts of the case will often remain undetermined until the Court’s judgment on the merits of the complaint to which the measure is related. It is precisely for the purpose of preserving the Court’s ability to render such a judgment after an effective examination of the complaint that such measures are indicated. Until that time, it may be unavoidable for the Court to indicate interim measures on the basis of facts which, despite making a prima facie case in favour of such measures, are subsequently added to or challenged to the point of calling into question the measures’ justification (see Paladi, cited above, § 89). 233. Consequently, it is not open to a Contracting State to substitute its own judgment for that of the Court in verifying whether or not there existed a real risk of immediate and irreparable damage to an applicant at the time when the interim measure was indicated. It is for the Court to verify compliance with the interim measure, while a State which considers that it is in possession of material capable of convincing the Court to annul the interim measure should inform the Court accordingly (see, mutatis mutandis, Tanrıkulu v. Turkey [GC], no. 23763/94, § 131, ECHR 1999-IV, and Paladi, cited above, § 90). At the same time a High Contracting Party may lodge at any time a request to lift an interim measure. 234. The point of departure for verifying whether a respondent State has complied with the measure is the formulation of the interim measure itself. The Court will therefore examine whether the respondent State complied with the letter and the spirit of the interim measure indicated to it. Article 34 will be breached if the authorities of a Contracting State fail to take all steps that could reasonably have been taken in order to comply with the measure indicated by the Court. It is for the Government to demonstrate to the Court that the interim measure was complied with (or, exceptionally, that there was an objective impediment which prevented compliance), and that the Government took all reasonable steps to remove that impediment and to keep the Court informed about the situation. In examining a complaint under Article 34 concerning the alleged failure of a Contracting State to comply with an interim measure, the Court will not, however, re ‑ examine whether its decision to apply that interim measure was correct (see, mutatis mutandis, Aleksanyan v. Russia, no. 46468/06, §§ 228 ‑ 32, 22 December 2008, and Paladi, cited above, §§ 91-92). Application of the above principles to the present case 235. The Court notes, firstly, that the interim measures indicated in respect of the applicants’ cases on 8 and 16 June and 20 July 2017, respectively, included instructions to the authorities to refrain from returning the applicants to Belarus. In cases nos. 40503/17 and 42902/17, the Court furthermore specified that the measures in question should be interpreted in such a way that – when the applicants presented themselves at a Polish border checkpoint – their applications for asylum should be received and registered by the Border Guard and forwarded for examination by the relevant authorities; the Court moreover specified that, pending examination of their asylum applications, the applicants should not be sent back to Belarus. Despite the indication of the interim measures, the applicants were turned away to Belarus not only on the days on which the measures were indicated (see paragraphs 16, 33 and 59 above) but also at least a few times thereafter (see paragraphs 22, 34, 38 and 62 above). It should be noted that on a number of those occasions the applicants were carrying with them copies of letters informing them of the indication of an interim measure in respect of their cases and that their representatives had sent copies of those letters directly to the Border Guard. 236. The Court furthermore observes that the Government have continuously questioned the possibility of complying with the interim measures, by indicating – even after the Court explained how to interpret the interim measures in question – that the applicants were never legally admitted to Poland in the first place and that they therefore could not have been removed. The Government also disputed the legitimacy of interim measures being indicated in respect of the present cases; they submitted that there had not been a sufficient factual basis for them and that the applicants had abused this tool in order to force the Border Guard to admit them to Poland. The Court would point out that the Government have continued to rely on those arguments even after the Court rejected them by dismissing the Government’s applications for the measures to be lifted (see paragraphs 21, 37 and 61 above). 237. The Court furthermore notes that in respect of cases nos. 40503/17 and 43643/17, the interim measures initially indicated on 8 June and 20 July 2017 have still not been complied with and remain in force. In respect of case no. 42902/17, the applicants were finally admitted to Poland on 7 January 2018 (the second applicant, together with her children) and 20 March 2018 (the first applicant), and the procedure concerning their applications for international protection has been initiated. It follows, therefore, that the interim measure in their case has been complied with; however that measure was undertaken only after a significant delay, which resulted in the applicants being put at risk of the kind of treatment that the measures were aimed at protecting them against (see, particularly with respect to the first applicant, paragraphs 47 and 183 above). 238. Accordingly, the Court concludes that Poland has failed to discharge its obligations under Article 34 of the Convention. RULE 39 OF THE RULES OF COURT 239. The Court reiterates that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber, or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) the panel of the Grand Chamber rejects the request to refer under Article 43 of the Convention. 240. It considers that the indications made to the Government under Rule 39 of the Rules of Court in cases nos. 40503/17 and 43643/17 (see paragraphs 16 and 59 above) must remain in force until the present judgment becomes final or until the Court takes a further decision in this connection. APPLICATION OF ARTICLE 41 OF THE CONVENTION 241. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 242. The applicant in case no. 40503/17 claimed no less than 10,000 euros (EUR) in respect of non-pecuniary damage, leaving the exact amount to the Court’s discretion. 243. The applicants in case no. 42902/17 claimed jointly EUR 210,000 in respect of non-pecuniary damage and EUR 4,200 in respect of pecuniary damage for living expenses incurred while they were residing in Brest. 244. The applicants in case no. 43643/17 claimed no less than EUR 35,000 in respect of non-pecuniary damage (leaving the determination of the exact amount to the Court) and EUR 11,100 in respect of pecuniary damage for living expenses incurred while they were residing in Brest. 245. The Government submitted that the amounts indicated by the applicants were excessive and unjustified. 246. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects these claims. On the other hand, in respect of non-pecuniary damage, ruling on an equitable basis, it awards the applicant in case no. 40503/17 EUR 34,000, the applicants in case no. 42902/17 EUR 34,000 jointly, and the applicants in case no. 43643/17 EUR 34,000 jointly. Costs and expenses 247. The applicant in case no. 40503/17 also claimed EUR 440 in respect of the costs and expenses incurred before the domestic authorities (including court fees incurred before the Warsaw Regional Administrative Court and the cost of train tickets from Brest to Terespol). He did not lodge any claim in respect of the costs incurred before the Court. 248. The applicants in case no. 42902/17 claimed EUR 120 in respect of the costs and expenses incurred before the domestic authorities (including the cost of train tickets from Brest to Terespol) and EUR 38.70 in respect of the costs incurred before the Court. 249. The applicants in case no. 43643/17 claimed EUR 740 in respect of the costs and expenses incurred before the domestic authorities (including court fees incurred before the Warsaw Regional Administrative Court and the cost of train tickets from Brest to Terespol). They did not lodge any claim in respect of the costs incurred before the Court. 250. The Government submitted that there was no reason to reimburse the applicants the cost of their train tickets. They did not comment on the remainder of the applicants’ claims concerning costs and expenses. 251. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant in case no. 40503/17 EUR 140, the applicants in case no. 42902/17 EUR 39, and the applicants in case no. 43643/17 EUR 140, covering costs under all heads. Default interest 252. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 4 of Protocol No. 4 to the Convention, finding that the decisions refusing the applicants entry to Poland had not been taken with proper regard to their individual situations and had been part of a wider policy of refusing to receive asylum applications from persons presenting at the Polish-Belarusian border and of returning those persons to Belarus. The Court also found a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention on account of having denied the applicants access to the asylum procedure and removing them to Belarus, and a violation of Article 13 (right to an effective remedy) in conjunction with Article 3 and in conjunction with Article 4 of Protocol No. 4, due to the absence of a remedy with automatic suspensive effect. It lastly found that Poland had failed to discharge its obligations under Article 34 (right to individual application) of the Convention: it complied with the interim measures indicated by the Court with significant delay or not at all.