DISSENTING OPINION OF JUDGE EICKE

1. The circumstances of this case demonstrate, in my view, a most egregious disregard by the respondent State for and violation of both

(a) the fundamental principle of refoulement as protected not only by EU law (see §§ 83, 84 and 91 of the judgment) and the 1951 Geneva Convention (see §§ 93 and 94) but also, importantly for this Court, by Article 3 of the Convention as reinforced by Article 4 of Protocol No 4; and

(b) the obligations undertaken by all States Parties to the Convention “by virtue of Article 34 of the Convention ... to refrain from any act or omission that may hinder the effective exercise of an individual applicant’s right of application [including] ... to comply with interim measures” under Rule 39 of the Rules of Court ( Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 128, ECHR 2005 ‑ I).

2. I, therefore, fully agree with the finding of a violation of Articles 3, Article 4 of Protocol No 4, Article 13 read in conjunction with both these Articles as well as the finding that Poland has failed to discharge its obligations under Article 34 of the Convention.

3. My only point of disagreement with the other members of the Chamber arises in relation to the approach taken to the assessment of non-pecuniary damages under Article 41 of the Convention in two of the three joined cases.

4. In paragraph 210 of the judgment, in the context of Article 4 of Protocol No 4, the Court concludes that “the decisions ... in the applicants’ cases were not taken with proper regard to the individual situation of each of the applicants”. Unfortunately, in my view, this criticism can also levelled at the approach taken by the majority to the award of non-pecuniary damages under Article 41 in relation to applications nos. 42902/17 ( M.A. and Others v. Poland ) and 43643/17 ( M.K. and Others v. Poland ).

5. To make the same award of EUR 34,000 in respect of both (a) the single individual applicant in application no. 40503/17 ( M.K. v. Poland ), as well as (b) the multiple, individual, applicants in those two applications appears to me to be not only fundamentally inconsistent with a victim ‑ oriented approach to the question of just satisfaction, as required by Article 41 of the Convention and reflected in some the Court’s case-law as well as inter alia the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (as adopted and proclaimed by General Assembly resolution 60/147 of 16 December 2005), but also to be inconsistent with the “equitable basis” on which the awards are said to have been made (see paragraph 246 of the judgment). After all, the Court has made clear that the concept of “equity” as applied by it as a “guiding principle” in the context of Article 41 “above all involves flexibility and an objective consideration of what is just, fair and reasonable in all the circumstances of the case, including not only the position of the applicant but the overall context in which the breach occurred” (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 224, ECHR 2009).

6. Looking at the facts of these two applications, as set out in the judgment, as compared with those of Mr M.K.’s application (no. 40503/17), it is difficult to see how the position of the individuals or the overall context in which the violations of their Convention rights occurred, could be said to be sufficiently different to warrant a significantly different approach to the compensation of the non-pecuniary damage they suffered; and importantly no such difference has been identified by the majority. In fact, in paragraph 118 the Court justified the joinder of these three applications “[i]n accordance with Rule 42 § 1 of the Rules of Court” on the basis that “they concern similar facts and raise identical legal issues under the Convention”. Without more, the apparent reductions in the awards to the individual victims in these two applications fails in fully achieving “to give recognition to the fact that moral damage occurred as a result of a breach of a fundamental human right and reflect in the broadest of terms the severity of the damage” (see Molla Sali v. Greece (just satisfaction) [GC], no. 20452/14, § 33, 18 June 2020, and Sargsyan v. Azerbaijan (just satisfaction) [GC], no. 40167/06 § 39, 12 December 2017).

7. The applicants in application no. 42902/17 ( M.A. and Others v. Poland ) are:

(a) Mr M.A., referred to in the relevant parts of the judgment as “the first applicant”;

(b) Mrs M.A., his wife, referred to in the relevant parts of the judgment as “the second applicant”; and

(c) their five minor children.

8. The Court’s summary of the relevant facts (see paragraphs 26-51) describes how all seven applicants had not only repeatedly sought (and, in violation of Poland’s obligations under the Convention not received) an individualised consideration of their application(s) for protection by the Polish authorities from inter alia refoulement to a risk of treatment contrary to Article 3 in Chechnya but also how the consequences (and circumstances) of the repeated failure of the Polish authorities to comply with their obligations under the Convention were also (at times very) different between the first applicant and the second applicant (and the children). After all, the evidence suggests that, having been rejected at the border yet again on 12 December 2017, for the first applicant the very risk of chain- refoulement advanced by the applicants materialised and he was told by the Belarusian authorities to leave the country, was immediately on return detained by the Russian authorities and was returned to Chechnya (see paragraphs 40, 45 and 46). By contrast, the second applicant, having slipped and fallen on the way to catch the train back to Belarus, was taken to hospital in Poland but, in breach of the interim measure indicated by this Court under Rule 39, again not admitted for assessment of her international protection claim but removed from Poland on 14 December 2017. Having made one further unsuccessful attempt to apply for protection at the border, the second applicant and the children were finally admitted for substantive consideration of their applications on 7 January 2018. By contrast, the first applicant was not able to return to the Polish border to renew his application for protection and to re-join his wife and family until 20 March 2018.

9. The applicants in application no. 43643/17 ( M.K. and Others v. Poland – see paragraphs 52-66 of the judgment) are

(d) Mr M.K., referred to in the relevant parts of the judgment as “the first applicant”;

(e) Mrs Z.T., his wife, referred to in the relevant parts of the judgment as “the second applicant”; and

(f) their three minor children.

While it does not appear that these applicants were separated as a result of the actions of the Polish authorities, it appears from the evidence that the first and second applicant clearly had different and individual, while interconnected, claims for protection (see paragraph 55). The first applicant’s claim is based on the fact that he was “kidnapped, detained and tortured ... because of his alleged participation in the disappearance of ... a relative of people close to Ramzan Kadyrov” which led the applicants to make an unsuccessful application for asylum in Austria. The second applicant’s claim is based not only on her association with her husband but also on the fact that, the first applicant having gone into hiding after their deportation back to Russia, she was personally “harassed, threatened and questioned about her husband”, “kidnapped and detained for twenty-four hours, during which she had been interrogated and threatened with sexual violence”. As a result of their separate experiences, it appears that they have each been identified as torture victims and, as such, as suffering from post-traumatic stress disorder.

10. From the above it seems clear that each of the above applicants, just like Mr M.K. in application no. 40503/17, had different (and separate) experiences on which they base their claim for international protection and/or different (and separate) experiences at the hands of the Polish authorities when asking for an individualised assessment of that protection claim. It was in relation to these individualised experiences of the different (adult) applicants that the Court found serious violations of their respective Convention rights.

11. Article 41 of the Convention, of course, requires the Court to “afford just satisfaction to the injured party” and, consequently, requires an assessment of the non-pecuniary damage suffered by each “injured party”; this reflects the victim-oriented approach now so widely recognised. The fact that these applicants happened to be members of the same family whose applications happened to have been lodged together and registered by the Court under a single application number cannot, per se , detract from this obligation or from the fact that each of these two application numbers covered multiple applicants each of whom was a direct victim (an “injured party”) of the violations alleged (and ultimately found): see, mutates mutandis , Catan and Others v. the Republic of Moldova and Russia [GC], nos. 43370/04 and 2 others, § 166, ECHR 2012 (extracts), where the Court awarded non-pecuniary damages to each individual victim of a violation of Article 2 of Protocol No. 1 to the Convention (identified by name in an annex to the judgment) despite or irrespective of the fact that they happened to be members of the same family and/or their complaint was registered by the Court under a single application number; but contrast Selim Yıldırım and Others v. Turkey , no. 56154/00, § 94, 19 October 2006, in which, in the context of a finding of a violation of Article 2 of the Convention, a single joint award was made to close relatives in respect of the persons presumed disappeared.

12. As a consequence, taking the award of EUR 34,000 made to Mr M.K. as the reference point (reflecting accurately the Court’s approach to an average award of non-pecuniary damages for a finding of a number of violations including a substantive violation of the prohibition of inhuman or degrading treatment under Article 3 as adjusted in relation to Poland), it would have been necessary and appropriate to have awarded the same amount of non-pecuniary damages to both the adult applicants in each of these two applications.

13. The position of the children in each of the two families in relation to any non-pecuniary damages each of them has suffered may appear more difficult in light of the absence of detailed information relevant to either their claim(s) or their personal experiences. However, there can be no doubt that the children were also direct victims of the breaches of the Convention found by the Court and that they will inevitably have suffered, separately and personally, “evident trauma, whether physical or psychological, pain and suffering, distress, anxiety, frustration, feelings of injustice or humiliation, prolonged uncertainty, disruption to life, or real loss of opportunity” (see Varnava and Others , cited above, § 224, and Molla Sali , cited above, § 33) as a result of the violations found so as to justify an award of non-pecuniary damages. In light of the Court’s rather formulaic approach to assessing non-pecuniary damages (having consistently held that it is not “the Court’s role to function akin to a domestic tort mechanism court in apportioning fault and compensatory damages between civil parties”: ibid), it would, in my view, therefore have been equally appropriate (and necessary) to make an award of EUR 34,000 in relation to each of the children.