M.A. and Others v. Poland (Application no. 42902/17) Third Party Intervention: The AIRE Centre, ICJ, DCR, and ECRE

I. A Contracting Party has the duty to protect Convention rights when it exercises effective authority or control over persons, including where persons are present extraterritorially. Where individuals are subject to police activities at the border, whether such activities are the prevention of entry or the prevention of making, registering or lodging a claim for asylum or expulsion from the border area, these individuals are under the de facto control, and thus the jurisdiction of the relevant State. Positive and negative obligations are triggered under the Convention where a State exercises its jurisdiction.
 

II. The effectiveness of the right of individual petition under Article 34 of the Convention requires Contracting Parties (i) to ensure that the Court can consider the application under its normal procedure and/or (ii) to refrain from actions which would prevent the Court from doing so. Where interim measures are indicated by the Court, conformity with Article 34 necessitates States’ strict compliance with the measure in order to preserve and protect the rights of the parties. Where a measure is indicated to prevent irreparable harm in the case of absolute and non-derogable Convention rights, including the right to freedom from torture and inhuman or degrading treatment or punishment, there is a particular imperative to comply. Noncompliance with or disrespect for an interim measure amounts to a violation of Article 34.
 

III. The interveners submit that where interim measures are imposed by the Court which relate to or directly affect children, there is a heavy onus on the State to act in a manner that ensures the children’s well-being, care, safety and protection, which is in addition to the binding requirements of the measure as per its formulation, letter, spirit and purpose. In light of the child’s best interests, the State is required to be especially diligent when complying with an interim measure, providing appropriate protective measures where necessary.