CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 8 juillet 2021

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AND OTHERS v. POLAND (Application no. 51246/17)     JUDGMENT   Art 3 • Expulsion • Repeated denial of access to asylum procedure at Polish-Belarusian border, exposing applicants to risk of chain- refoulement to Syria and inhuman and degrading treatment and torture Art 4 P4 • Collective expulsion of aliens through wider policy of refusal of entry, in disregard of applicants’ intention to apply for international protection Art 13 (+ Art 3 and Art 4 P4) • Lack of effective remedy by which to lodge complaints with the domestic authorities Art 34 • Hinder the exercise of the right of application • Non-compliance with interim measure under Rule 39   STRASBOURG 8 July 2021 FINAL   22/11/2021   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of D.A. and Others v. Poland, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Ksenija Turković, President,   Péter Paczolay,   Krzysztof Wojtyczek,   Alena Poláčková,   Raffaele Sabato,   Lorraine Schembri Orland,   Ioannis Ktistakis, judges, and Renata Degener, Section Registrar, Having regard to: the application (no.   51246/17) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Syrian nationals, Mr D.A., Mr M.A., and Ms S.K. (“the applicants”), on 20   July 2017; the decision to give notice to the Polish Government (“the Government”) of the complaints under Article 3 of the Convention, Article 4 of Protocol No. 4 to the Convention, Article 13 in conjunction with Article 3 of the Convention and Article 4 of Protocol No. 4 to the Convention and under Article 34 of the Convention; the decision not to have the applicants’ names disclosed; the decision to give priority to the application (Rule 41 of the Rules of Court); the decision to indicate an interim measure to the respondent Government under Rule   39 of the Rules of Court and the fact that this interim measure has not been complied with; the observations submitted by the respondent Government and the observations in reply submitted by the applicants; the comments submitted by the United Nations High Commissioner for Refugees, who was granted leave to intervene by the President of the Section; Having deliberated in private on 15 June 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns alleged pushbacks of the applicants – Syrian nationals – at the Polish-Belarusian border. The applicants alleged that the Polish authorities had repeatedly denied them the possibility of lodging applications for international protection, in breach of Article 3 of the Convention. They also relied upon Article 4 of Protocol No. 4 to the Convention, alleging that their situation had not been reviewed individually and that they were victims of a general policy followed by the Polish authorities with the aim of reducing the number of asylum applications registered in Poland. The applicants stated that, under Article 13 in conjunction with Article 3 of the Convention and Article 4 of Protocol No.   4 to the Convention, lodging an appeal against a decision denying someone entry into Poland did not constitute an effective remedy for asylum-seekers as it would have no suspensive effect. Moreover, the applicants complained that the Polish authorities had not complied with the interim measure granted to them by the Court, in breach of Article 34 of the Convention. THE FACTS 2.     The applicants, Mr D.A., Mr M.A. and Ms S.K., were born in 1987, 1992 and 1993 respectively. They are Syrian nationals who currently reside in Belarus. The first two applicants are brothers, the first and the third applicants are married. The applicants were represented by Mr J. Białas , a   lawyer practising in Warsaw. 3.     The Government were represented by their Agent, M   J.   Chrzanowska and, subsequently, by   Mr J. Sobczak, of the Ministry of Foreign Affairs. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. The applicants’ situation prior to the application for interim measures 5.     On three occasions between 14 and 18 July 2017 the applicants travelled to the Polish-Belarusian border crossing at Terespol. According to the applicants, each time they expressly stated a wish to lodge an application for international protection. 6.     According to the applicants, when talking to the border guards they expressed fears for their safety. They stated that they came from Syria where a violent armed conflict was going on. The first and second applicants had received conscription orders from the Syrian Army and had failed to comply with them. They submitted that this fact put them at risk of fifteen years’ imprisonment if returned to Syria. Moreover, the first and second applicants declared that they belonged to the Druze ethno-religious group, which was one of the most persecuted minorities in Syria, both by the Assad regime and by Sunni extremists. 7.     The applicants also stated that although they had resided and studied in Belarus since 2013 (the first and second applicants) and 2015 (the third applicant) they could not remain in that country, as they had recently graduated, their visas had expired and in practice it would be impossible for them to obtain international protection there. 8.     On all occasions on which the applicants presented themselves at the border crossing at Terespol, administrative decisions were issued turning them away from the Polish border on the grounds that they did not have any documents authorising their entry into Poland and that   they had not stated that they were at risk of persecution in their home country but that they were simply trying to emigrate for economic or personal reasons (specifically in order to join their family who lived in Europe or to pursue professional careers outside Belarus). This conclusion was based on the summary official notes from the interviews prepared by the officers of the Border Guard in Polish and not signed by the applicants. The   official notes in question observed that the applicants indicated that the first and the second applicant had recently graduated from their studies in Minsk and were very successful in the field of film-making. They wished to advance their careers in Europe. According to those official notes, the applicants had also indicated that they had family members in the United Kingdom, Germany and France and wanted to visit them and seek their support in starting a life in Europe. 9.     The applicants did not appeal against any of the administrative decisions issued before 20 July 2017. Interim measures indicated by the Court 10.     On 20 July 2017, when the applicants presented themselves at the border crossing in Terespol, their representative submitted a request under Rule 39 of the Rules of Court asking the Court to prevent the applicants’ removal to Belarus. 11 .     On 20 July 2017, at 10.08 a.m. the Court (the duty judge) decided to apply Rule 39 of the Rules of Court, indicating to the Government that the applicants should not be removed to Belarus until 3 August 2017. The Government were informed of the interim measure before the planned time of expulsion. Nevertheless, the applicants were returned to Belarus at 11.25   a.m. The official note prepared by border guards on this occasion stated that, when at the border, the applicants had expressed the wish to enter Poland in order to find a better place to work, to develop professionally and to visit their families who reside in the United Kingdom and Germany. 12 .     On the same day, 20 July 2017, the Helsinki Foundation for Human Rights – a non-governmental organisation with which the applicants’ representative worked – sent a letter to the head of the National Border Guard informing him about the applicants’ allegations that their wishes to lodge applications for international protection had been ignored at the Terespol border crossing and about the interim measure issued by the Court. Developments following the application of an interim measure 13.     On 21 July 2017 the applicants returned to the border checkpoint in Terespol carrying with them a copy of the letter informing their representative of the Court’s decision concerning the interim measure. They submitted that they had expressly stated that they had sought international protection and had showed the border guards copies of the letters summoning the first and the second applicants to serve in the Syrian Army. The applicants alleged that when confronted with the situation of the officers of the Border Guard ignoring their requests for international protection, they had tried to record the course of the interviews on their mobile telephones. However, when the officers conducting the interviews had realised that, they had demanded the applicants’ telephones and erased the recordings. 14 .     The applicants were again turned away and sent back to Belarus. The   Government submitted that in the course of their conversation with the officers of the Border Guard, the applicants had not expressed any need for international protection; rather, they submitted that after having had finished their studies, they no longer had the right to stay in Belarus and wanted to enter Poland in order to travel to the United Kingdom, join their family residing there and continue their professional careers. 15.     On 21 July 2017 the Government requested that the Court reconsider its decision concerning the interim measure indicated under Rule 39 of the Rules of Court. The Government argued that the applicants had never requested international protection, nor had they given any reasons for such protection. 16 .     On 3 August 2017 the Court (the duty judge) decided to extend the interim measure until 8 September 2017 and to clarify that the indication made to the Government on 20 July 2017 – that the applicants should not be removed to Belarus – should be understood in such a way that, when they presented themselves at a Polish border checkpoint, the applicants’ applications for asylum should be received and registered by the Border Guard and forwarded for examination by the competent authorities. Pending examination of their asylum application, the applicants should not be sent back to Belarus. 17.     On 7 September 2017 the Court (the duty judge) decided to extend the interim measure until further notice. 18 .     On 20 October 2017, when submitting their observations on the admissibility and merits of the case, the Government again requested that the Court lift the interim measure indicated under Rule 39 of the Rules of Court. They cited the same reasons as those cited in their previous request. On 22 February 2018 the President of the Section refused their request. The applicants’ appeals against the refusal-of-entry decisions of 20 and 21 June 2017 19.     On 25 July 2017 the applicants lodged appeals against the decisions refusing them entry to Poland issued on 20 and 21 June 2017. 20.     On 15 September 2017 the head of the National Border Guard upheld those decisions. He stated, inter alia , that under domestic law an interview with a foreigner who did not have documents allowing him or her to cross the Polish border was to be held by an officer of the Border Guard without the participation of other persons and aimed to identify the reasons for the foreigner’s arrival at the border. The head of the National Border Guard indicated that, during their interviews, the applicants had not expressed any wish to apply for international protection, but instead cited only professional and personal reasons for their wish to travel to Poland. He   stressed that, had the applicants expressed a wish to apply for international protection, their applications would have been received. However, in the absence of such statement on their part, the officers of the Border Guard could not have presumed that the applicants were asylum ‑ seekers. When referring to the interim measure indicated by the Court, the head of the National Border Guard stated that it was impossible to remove from Polish territory a person who had not legally crossed a border in the first place and that domestic law provided no basis for allowing the applicants to enter Poland, even despite the interim measure. 21.     The applicants lodged appeals with the Warsaw Regional Administrative Court ( Wojewódzki Sąd Administracyjny w Warszawie ). The appeals referred only to the decisions upholding the refusal-of-entry decisions issued on 21 June 2017. 22.     On 7 March 2018 the Warsaw Regional Administrative Court quashed the decisions of the head of the National Border Guard and the head of the Terespol Unit of the Border Guard issued on 15 September 2017 and 21 July 2017 respectively. 23 .     The Warsaw Regional Administrative Court stressed that the procedure of refusal of entry to a foreigner, in which only an official note is prepared by the officers of the Border Guard, was a specific summary procedure that may be conducted only in very clear cases and only when it did not violate the provisions relating to the right to asylum and international protection. It indicated that in the applicants’ cases the official notes were very brief, did not contain information about the languages spoken by the applicants, the presence of an interpreter or the questions asked by the border guards. The Warsaw Regional Administrative Court noted that the brevity of the notes had to be contrasted with the fact that the applicants presented photographs of themselves carrying written declarations that they wished to apply for international protection and – in the case of the first and second applicants – copies of their conscription orders summoning them to join the Syrian military, repeated statements of the applicants and their representative throughout the proceedings indicating the wish to apply for international protection, as well as the content of the interim measure issued in their case by the Court. It held that all these circumstances did not allow it to be determined without any doubt that the applicants, when present at the Polish border, had indeed expressed the wish to apply for international protection, but they made it highly probable. 24 .     Moreover, in the domestic court’s opinion, the sole fact that the applicants had an interim measure granted by the Court should have indicated to the border guards that their case demanded more thorough examination. Consequently, it held that the applicants should have been more thoroughly interviewed by officers of the Border Guard and that their interviews should have been recorded in the form of detailed minutes. In the court’s opinion, the summary official notes prepared by the border guards were insufficient for establishing whether the applicants had indeed expressed the wish to lodge applications for international protection. 25.     The Warsaw Regional Administrative Court also discontinued the proceedings concerning the refusal of entry into Poland as the applicants were no longer at the Polish-Belarusian border. 26.     The applicants’ representative lodged cassation appeals against the judgments of 7 March 2018. He argued that the Warsaw Regional Administrative Court should have held that the applicants had indeed lodged applications for international protection. He also questioned the decision to discontinue the proceedings. 27 .     On 14 December 2018 the Supreme Administrative Court ( Naczelny   Sąd Administracyjny ) dismissed the cassation appeals. It relied on the same reasons as the court of first instance. It reiterated that the officers of the Border Guard had failed to review properly the applicants’ case and that the official note prepared by them was insufficient to issue a refusal-of-entry decision. It also stressed that, as the decision had been immediately executed, the proceedings had to be discontinued and – if the applicants attempted to enter Poland again – new administrative proceedings should be initiated. RELEVANT LEGAL FRAMEWORK AND PRACTICE 28.     The relevant domestic law and practice concerning granting international protection to aliens and the refusal-of-entry procedure, including reports concerning situation at the border checkpoint in Terespol, are set out in the Court’s judgment in the case of M.K. and Others v.   Poland (nos. 40503/17, 42902/17 and 43643/17, §§ 67-117, 23 July 2020). THE LAW ADMISSIBILITY The issue of jurisdiction under Article 1 of the Convention 29.     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 30.     In their submission to the Court, the Government pointed out that the present case was of a specific character as it involved decisions to refuse entry into Poland issued by the border authorities at 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. 31.     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 effective control by the authorities of the Contracting Party was exercised. They also 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. They further submitted that under both international law and European Union law 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. The third-party intervener 32.     The United Nations High Commissioner for Refugees (“the   UNHCR”) submitted that the obligation of non ‑ refoulement applied wherever the State exercised its jurisdiction, including at the border. The Court’s assessment 33.     The Court notes that it has already addressed the issue of the State’s jurisdiction over the applicants, who presented themselves to border control at the land border checkpoints (see M.A. and Others v. Lithuania , no.   59793/17, § 70, 11 December 2018), including at the Terespol border crossing on the Polish-Belarusian border (see M.K. and Others v. Poland , cited above, §§ 126-131). In the latter judgment, the Court pointed out that the railway border checkpoint in Terespol was placed on the border with the neighbouring state and was operated by the relevant units of the Polish Border Guard. It further noted that all procedures followed at this checkpoint in respect of border checks, granting or refusing the applicants entry into Poland and accepting for review their applications for international protection, were conducted exclusively by officials of the Polish State and were regulated by domestic and EU law. The Court therefore established 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 , cited above, § 70, and M.K. and Others v. Poland , cited above, § 132). 34.     The Court sees no reason to depart from these findings in the present case. 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 35.     The Government submitted that the application was inadmissible due to the non-exhaustion of domestic remedies. The parties’ submissions 36.     The Government submitted that the applicants had failed to appeal against three out of five decisions refusing them entry into Poland and had lodged their applications when their appeals against the remaining two decisions had still been pending. They indicated that appealing against those decisions to the head of the National Border Guard 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. The Government relied upon examples of judgments of the Warsaw Regional Administrative Court in which the decisions concerning refusal of entry to Poland were 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 applicants’ situation. 37.     The applicants submitted that the right to lodge an appeal against the decision refusing them entry did not constitute an effective remedy. They   stressed that the decision concerning the refusal to grant them entry was immediately enforceable and that an appeal against it would not have suspensive effect. Consequently, even if they had lodged such appeals, they would have been returned to Belarus and exposed to the risk of chain ‑ refoulement to Syria. They also argued 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. The Court’s assessment 38.     The Court has held in numerous previous cases that where an applicant seeks to prevent his or her removal from a Contracting State, alleging that such a removal would place him or her at risk of treatment contrary to Article 3 of the Convention or Article 4 of Protocol No.   4 to the Convention, a remedy will only be effective if it has automatic suspensive effect (see, among other authorities, Čonka v. Belgium , no. 51564/99, §§   81 ‑ 83, ECHR 2002-I; Hirsi Jamaa and Others v. Italy [GC], no.   27765/09, § 199, ECHR 2012; Gebremedhin [Gaberamadhien] v.   France , no. 25389/05, § 66, ECHR 2007 ‑ II; M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 293, ECHR 2011; and A.E.A. v. Greece , no.   39034/12, § 69, 15   March 2018). 39.     It is undisputed that in the present case the applicants had the possibility to lodge an appeal against each of the decisions concerning refusal of entry within fourteen days of the moment when they were informed of those decisions. However, under Polish law such appeals would not have had automatic suspensive effect on the return process (see M.K. and Others v. Poland , cited above, § 74). It follows that the applicants had no 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). 40 .     As 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, the Court considers that the sole fact that an appeal against the decision on refusal of entry would not have had automatic suspensive effect (and, in consequence, could not have prevented the applicants from being returned to Belarus) is sufficient to establish that this appeal – and any further appeals to the administrative court that could have been brought subsequently – did not constitute an effective remedy within the meaning of the Convention. Consequently, the Court does not deem it necessary to consider the remainder of the applicants’ arguments concerning the accessibility and effectiveness of those appeals. 41.     Accordingly, the Court dismisses the Government’s objection concerning non-exhaustion of domestic remedies. Conclusion on admissibility 42.     The Court further notes that the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds and must therefore be declared admissible. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 43.     The applicants complained that they had been exposed to the risk of torture or inhuman or degrading treatment in Syria as a result of having been returned to Belarus, from where they would probably be sent back to Russia, and then to Syria, 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.” 44 .     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 Syria, 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 made at the border were bluntly disregarded and the fact that they were denied the procedure to which they were entitled by 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 Syria The parties’ submissions (a)    The applicants 45.     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 paragraphs 49-50 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 checkpoint at Terespol had violated those provisions. 46.     The applicants reiterated that each time 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 the risk posed by their return to Syria and by the fact that they had no genuine chance of applying for international protection in Belarus or – if sent there – in Russia. 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 disregarded their statements. 47.     The applicants alleged that their return to Belarus had put them at risk of being deported to Russia and, subsequently, to Syria owing to the fact that neither Belarus nor Russia were safe countries for refugees from Syria. They cited a number of reports indicating that asylum seekers were routinely expelled from both those countries. 48.     The applicants submitted that the ongoing military conflict in Syria placed them at serious risk of treatment contrary to Article 3 of the Convention. They indicated in particular that the first and the second applicants had received conscription orders summoning them to join the Syrian military. As they had not complied with the orders, they were at risk of penalty for desertion. They indicated that persons who refused to serve in the Syrian army were subject to detention, ill-treatment and torture. The   applicants also indicated that they were part of the Druze religious group which was persecuted by both Assad’s regime and the Sunni extremists. (b)    The Government 49 .     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. The Government explained that foreigners who presented themselves at the Polish-Belarusian border were subjected to the verification of their documents. If they did not fulfil the conditions for entry, they were directed to the second line of border control, where detailed interviews were carried out by officers of the Border Guard. This interview 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 in search of such protection, the application in this regard was accepted and forwarded to the relevant authority for review and the foreigner was directed to a 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. 50 .     The Government emphasised that the above-mentioned procedure had its basis in the Schengen Borders Code and that the officers of the Border Guard complied with it because Poland is a member of the European Union. 51.     Referring to the circumstances of the present case, the Government stated that on each occasion when the applicants had arrived at the border checkpoint at Terespol they had been interviewed by officers of the Border Guard. The Government submitted that at no point did any of the applicants give reasons that would have justified the granting of international protection. As a result, no applications in this regard had been received from them. 52.     The Government further stressed that all the applicants had arrived in Belarus four years (the first and the second applicant) and two years (the   third applicant) before lodging their applications with the Court. The   applicants had not, in their oral statements 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. On the contrary, the Government submitted that – according to the applicants’ own statements – they continued to reside in Belarus during the proceedings before the Court and were not subject to any ill-treatment. Third-party intervener 53 .     The UNHCR submitted that, although Polish law provided for standards of protection of the rights of asylum-seekers in line with relevant international law, in practice a significant number of asylum-seekers at Terespol border crossing were arbitrarily deprived of access to a fair and efficient asylum procedure and returned to Belarus. The third-party intervener noted that, at the relevant time, the UNHCR had not been granted access to the Terespol transit zone where pre-screening interviews of potential asylum-seekers took place. However, in the period from May 2016 to September 2017, the UNHCR registered 182 telephone calls in which the persons concerned alleged that they had expressed an intention to seek international protection at the Polish-Belarusian border at Terespol but were nonetheless denied access to the procedure and summarily returned to Belarus. Moreover, from March 2016 to September 2017 the UNHCR received written statements, interventions and queries concerning 96 further cases of such denial of access to asylum procedure. The third-party intervener also indicated that 275 similar incidents that had allegedly taken place in 2016 and 2017 had been reported by their partner organisation. 54.     The UNHCR stressed that the interviews with potential asylum ‑ seekers were very brief and conducted in circumstances that did not allow sufficient consideration for confidentiality and privacy of the persons interviewed. They also did not provide sufficient procedural guarantees. The   UNHCR indicated that, despite its mandate to supervise the application of the provisions of the 1951 Geneva Convention relating to the Status of Refugees at the relevant time, neither its employees nor any representatives of non-governmental organisations had been allowed access to the area at the Terespol border crossing, where the second line of border control took place. The UNHCR’s representatives could only observe this area from a   distance, through a glass wall. 55.     The UNHCR further submitted that the principle of non-refoulement prevented the states from returning a person who presented themselves at the border claiming to be at risk or fearing return to his or her country of origin or any other country. They stressed that the state must assess, prior to   the removal and subject to procedural safeguards, the appropriateness of the removal of each person individually. The third-party intervener submitted that in their assessment, the Polish authorities had routinely failed to adhere to this standard at the Terespol border crossing. The Court’s assessment (a)    General principles 56.     The Court has recently summarised general principles concerning its case-law under Article 3 of the Convention as it relates to persons seeking protection against expulsion in its judgments in cases Ilias and Ahmed v.   Hungary ([GC], no. 47287/15, § 124, 21 November 2019, and M.K. and Others v. Poland , cited above, §§ 166-173. 57.     The Court has in particular 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)). It reiterated that 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. 58.     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; M.K. and Others v. Poland , cited above, § 171). 59.     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 were made to the relevant authorities of that country (see Ilias and Ahmed , cited above, §   131 and M.K. and Others , cited above, § 172). 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 (see Ilias and Ahmed , cited above, §   134 and M.K. and Others , cited above, § 173). (b)    Application of the above principles to the present case 60.     The Court notes first of all that the Government disputed whether the applicants, when presenting themselves on a number of 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. In this context the Court notes that it had already established in its judgment on the case of M.K. and Others that, at the relevant time, a systemic practice of misrepresenting statements given by asylum-seekers in the official notes drafted by the officers of the Border Guard existed at the border checkpoints between Poland and Belarus ( M.K. and Others v. Poland , cited above, §   174). The existence of such a practice is further substantiated by the submissions presented in the present case by the United Nations High Commissioner for Refugees (see paragraph 53 above) and by the judgments of the domestic administrative courts that held that the officers of the Border Guard had not conducted sufficient evidentiary proceedings in the applicants’ cases (in particular by failing to conduct and properly record the interviews with the applicants – see paragraphs 23-24 and 27 above). 61 .     In addition to that, the applicants’ account of the statements that they gave at the border is also corroborated by documents presented by them to the Court at all stages of the proceedings, especially written statements that they wished to apply for international protection and conscription orders summoning the first and the second applicants to join the Syrian military, carried by them 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 return them to Belarus. 62.     In any event, the Court points to the fact that the applicants’ letter indicating their wish to apply for international protection, which comprised at least a general account of the reasons for their fear of persecution, was sent to the Government at the time when they were informed by the Court of the application of an interim measure in the applicants’ case – namely, on 20   June 2017 (see paragraph 11 above). Information about the applicants’ claims was also subsequently submitted directly to the Border Guard by the non-governmental organisation working with the applicants’ representative (see paragraph 12 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 the applicants’ situation. 63 .     Accordingly, the Court cannot accept the Government’s argument that the applicants had presented no evidence whatsoever that they were at risk of being subjected to treatment in violation of Article   3. The applicants indicated individual circumstances that – in their opinion – substantiated their applications for international protection and produced relevant 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 ”. 64 .     The Court is 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 Syria 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 that 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 (see M.K. and Others v. Poland , cited above, § 178). 65.     The Court furthermore notes the respondent Government’s argument that by refusing the applicants entry into Poland, it acted in accordance with the legal obligations incumbent on them arising from Poland’s membership in the European Union. 66.     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 M.K. and Others v. Poland , cited above, §§ 78-84). Those provisions (i) are clearly aimed at providing all asylum-seekers effective access to the proper procedure by which their claims