The following is based on a communication written by the UN Special Rapporteur on Human Rights Defenders and other UN experts to the Government of Poland on 24 January 2022. The communication remained confidential for 60 days before being made public. The Government responded on 22 March 2022 but denies responsibility for harassing human rights defenders at the border.
This is a shorter version of the original communication.
BACKGROUND
Topic: alleged attacks, short-term detentions, stop and search, harassment, and ill-treatment of human rights defenders who provide humanitarian assistance to migrants and asylum-seekers and monitor their human rights situation near the Poland-Belarus border, as well as the alleged lack of legal basis for the actions of the military.
Mr. Jakub Sypiański is a human rights defender and a volunteer interpreter assisting migrants and asylum-seekers.
Mr. Maciej Moskwa is a human rights defender and a photojournalist.
Mr. Maciej Nabrdalik is a human rights defender and a photojournalist.
Ms. Olivia Kortas is a woman human rights defender and a journalist.
Mr. Christoph Kürbel is a human rights defender and a journalist.
We previously wrote to the Greek Government regarding the alleged denial of access to assistance and protection of migrants stranded at the border between Poland and Belarus and subject to dire living conditions in the communication sent on 3 September 2021 (UA POL 5/2021). We thank the Government for the response dated 27 September 2021. However, we remain concerned given the new allegations outlined below.
ALLEGATIONS
Since August 2021, thousands of migrants from the Middle East and other regions have arrived in Belarus and attempted to enter Poland by foot, often through non-official crossing points in the forests, in harsh and life-threatening conditions. Polish border guards, police and army officers have reportedly forced the migrants back into the forests on the Belarusian side. As a result, thousands of migrants are reportedly in the forests now, without adequate shelter, food, clean water, sanitation facilities, warm clothes, and access to medical care. This includes pregnant women, families with young children, and people who are elderly or have disabilities. Reportedly, at least 19 persons have died in the forests, including two children.
On 2 September 2021, the President of Poland declared a 30-day state of emergency covering 183 localities in Podlaskie Voivodeship and Lubelskie Voivodeship, along the border with Belarus. The state of emergency was extended by 60 days on 30 September 2021. Restrictions included a ban on staying in the area covered by the state of emergency for non-residents, the prohibition of recording and photographing certain objects and areas , and limited access to public information on activities carried out in the area. On 2 December 2021, the state of exception expired but elements were introduced into ordinary legislation – a new Article 12a in the 1990 Protection of the State Border Act, in force as of 1 December 2021, effectively providing for a “permanent state of exception”. A ministerial decree from 30 November 2021 – in force until 1 March 2022 – further prohibits non-residents from entering the same 183 localities.
Since August 2021, thousands of Polish soldiers have been reportedly assisting border guards in securing the border. Among other assistance, they reportedly carry out short-term detentions, identification, and searches of people believed to be either migrants or human rights defenders helping them, including in areas located outside of the state of emergency zone. According to Article 11b of the Act of 12 October 1990 on the Border Guard (Ustawa z dnia 12 października 1990 r. o Straży Granicznej), assistance of the armed forces to border guards must be authorised by a decree of the President based on the request of the Prime Minister. In urgent cases, the Minister of Defence may decide to provide assistance, but an immediate decree of the President must approve his decision for it to be lawful. However, the armed forces reportedly have been acting based on a classified decision of the Minister of Defence, making the scope of their powers unclear. A decree it reportedly yet to be adopted. In addition to the above, the following allegations have been brought to our attention:
Stop and search of Jakub Sypiański
At midnight on 26 November 2021, Mr. Jakub Sypiański was driving home. About four kilometres from Michalowo in Podlaskie Voivodeship (in a place reportedly located outside the state of emergency zone), an unmarked civilian car reportedly pulled alongside him after following him for some time. Several armed men in military uniforms reportedly got out of the car and demanded Mr. Sypiański to open the window. When he did, they allegedly forcibly opened the door, took the keys out of the ignition, and tried to pull him out of the car, grabbing him by his legs, but were unable to because of the seatbelt.
Then, about four to seven armed and uniformed officers reportedly surrounded the car. They allegedly did not identify themselves or explained the reason for stopping Mr. Sypiański. They asked him whether he was going to the refugee meeting place and threatened him. They also reportedly opened the trunk with the keys they had taken away.
Both the uniformed individuals and Mr. Sypiański called border guards and police. However, upon arrival, the border guard and the police reportedly refused to document the alleged attack on Mr. Sypiański and did not question the uniformed individuals.
On 26 November 2021, the Territorial Defence Forces (a subdivision of the armed forces) reportedly admitted that the uniformed individuals were their officers. On 3 December 2021, Mr. Sypiański filed a formal complaint against their actions; as of now, the status of the complaint is unclear.
Stop and search of three photojournalists
On 16 November 2021, Mr. Maciej Moskwa, Mr. Maciej Nabrdalik, and a Czech photojournalist drove together to the village of Wiejki near Michalowo, Podlaskie Voivodeship, to document the human rights situation of migrants at the border.
Around 4 pm, they photographed the outside of the military camp near Wiejki. The area was reportedly located outside the state of emergency zone, and photographing was not banned. Before photographing the camp, the journalists introduced themselves to the soldiers guarding its main gate and informed them of their intentions.
On their way back to Michalowo, around 4:10 pm, the journalists’ car was reportedly stopped by the armed soldier who had previously spoken with them at the gate. Then, at least eight more armed soldiers in balaclavas reportedly surrounded the car and demanded that the journalists get out of it.
The soldiers reportedly did not identify themselves, nor did they explain the legal basis of their actions or react to the reminders about the press status. The soldiers reportedly used offensive language and repeatedly threatened the journalists, also using implied death threats against them.
The soldiers reportedly demanded the journalists to stand separately, to take off their jackets despite the cold weather, and to put their arms above their heads. The soldiers allegedly searched the journalists and tightly handcuffed them for about an hour. Reportedly, Mr. Moskwa’s handcuffs were applied incorrectly, causing severe pain and blood marks. A military officer, who appeared to be a commander, reportedly commented on this by saying that “it should hurt”.
The soldiers also reportedly searched the car, removed the equipment and personal belongings, and viewed the content in the cameras, even though the journalists had warned that they contained material covered by source confidentiality. Another military officer, who also appeared to be a commander, reportedly demanded the journalists to identify the equipment and asked about their work, including about the migrants and asylum-seekers who appeared in the photos. The soldiers reportedly also read out and photographed the content of received messages on the journalists’ phones and the numbers of people who contacted them during the stop and search.
About an hour after the apprehension, police arrived but reportedly stayed inside their car while the journalists remained handcuffed. Once the handcuffs were removed, the police exited the car. Despite the journalists’ repeated requests, they reportedly refused to document the search and handcuffing, and to identify the military officers involved. They also allegedly viewed the content in the cameras.
The journalists were eventually freed, after being held for about 1.5 hours, however, Mr. Moskwa allegedly did not understand Polish and was not provided an interpreter for the entire duration of the stop and search. In an interview on 20 November 2021, the Minister of Defence publicly encouraged the soldiers for the incident. An online smear campaign was reportedly started against the journalists following this statement by the Minister of Defence.
On 23 November 2021, Mr. Moskwa and Mr. Nabrdalik filed a complaint regarding the short-term detention and search with the district court; its status is unclear.
Stop and search of a documentary-making group
On 30 November 2021, Ms. Olivia Kortas and Mr. Christoph Kürbel were filming a documentary about the situation of migrants in the forest near the village of Narewka, Podlaskie Voivodeship, on assignment by the YouTube Channel “Y-Kollektiv” by the public German broadcaster. Two local Polish residents were helping the journalists. Around 12:50 pm, four armed soldiers of the Territorial Defence Forces reportedly stopped the four of them outside the state of emergency zone.
The soldiers reportedly checked their IDs. The four of them were then reportedly accompanied to the road behind which the state of emergency zone began but did not cross it. Twelve armed soldiers reportedly surrounded them, demanded that they stop filming,
put the camera on the ground, and stay in line, keeping their hands outside their pockets. Ms. Kortas took a screenshot of the map showing their location. One of the soldiers reportedly shouted at her to put her phone away and demanded that she hand it over, which she refused to do due to the lack of legal basis. Approximately half an hour later, the border guard officers came by and let them
leave.
CONCERNS
In the communication we expressed our concern as to the alleged attacks, short-term detentions, searches, harassment, and ill-treatment of human rights defenders and journalists helping migrants and asylum-seekers near the Poland-Belarus border and documenting their human rights situation, as well as the alleged lack of legal basis for the actions of the military. In this regard, we are seriously concerned by the restricted access of journalists and human rights defenders to the border area, where the migrants and asylum-seekers are, to report on the situation and possible human rights violations, and to provide assistance. This concern is compounded by the formalisation of these restrictions through the implementation of the amendment to the Protection of the State Border Act. We are also deeply concerned about the physical and mental integrity of all the migrants
and asylum-seekers currently stranded at the border, who are allegedly subjected to dire
conditions in the forest, which may amount to cruel, inhuman or degrading treatment.
