FIFTH SECTION

DECISION

Application no. 25564/18 M.A. and Others against Latvia

The European Court of Human Rights (Fifth Section), sitting on 29 March 2022 as a Chamber composed of:

Síofra O’Leary, President, Mārtiņš Mits, Ganna Yudkivska, Lətif Hüseynov, Lado Chanturia, Arnfinn Bårdsen, Kateřina Šimáčková, judges, and Martina Keller, Deputy Section Registrar,

Having regard to the application (no. 25564/18) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by seven Russian nationals, Mr M.A. (“the first applicant”), Ms M.A. (“the second applicant”) and their five children, on 23 May 2018;

the decision to give notice of the application to the Latvian Government (“the Government”);

the decision not to inform the Russian Federation of their right to intervene, having regard to the Court’s findings in I v. Sweden (no. 61204/09, §§ 40-46, 5 September 2013);

the decision not to have the applicants’ names disclosed;

the parties’ observations;

Having deliberated, decides as follows:

THE FACTS

1 . The first and second applicants were born in 1988 and 1994 respectively and their five children were born between 2010 and 2016. They live in France - the first applicant in Lons-le-Saunier and the second applicant and the children in Auxerre. At the time their application was lodged, they were said to be living at a refugee protection centre in Poland. The applicants were represented by Mr M. Matsiushchankau , a Belarusian human rights defender granted leave to represent them pursuant to Rule 36 § 4 (a) of the Rules of Court.

2. The Government were represented by their Agent, Ms K. LÄ«ce.

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4 . The applicants previously lived in Chechnya. The events leading to their departure for Belarus and attempts to enter Poland (in April, June and August-December 2017) and Lithuania (in April and May 2017) are described in M.A. and Others v. Lithuania (no. 59793/17, §§ 7 ‑ 23, 11 December 2018) and M.K. and Others v. Poland (nos. 40503/17 and 2 others, §§ 27-43, 23 July 2020).

5 . On 11 April 2017 the applicants arrived in Belarus, where they – as Russian nationals – could legally stay for ninety days without visas. That period expired on 10 July 2017. The applicants lacked financial resources so were dependent on humanitarian aid provided by a Belarusian human rights organisation (“the Organisation”) in Brest, Belarus.

6. According to the applicants, on 23 November 2017 they travelled by train from Brest to Minsk, Belarus. The second applicant was four months pregnant at the time. The Belarusian police and immigration authorities verified their documents and established that they were staying illegally but allowed them to continue their journey to Indra, Latvia. They warned the applicants that if the Latvian authorities did not “accept” them they would face deportation from Belarus to Russia.

(a) Undisputed events

7. On 24 November 2017, at around 4.10 a.m. (Latvian time, or 5.10 a.m. Belarusian time), the applicants arrived at the railway border crossing point in Indra by train as part of a group of approximately thirty Russian nationals. Most were from Chechnya.

8 . The State Border Guard Service (“SBGS”) issued decisions refusing entry in respect of each applicant on the grounds that they did not have valid visas or residence permits. These were standardised forms indicating each applicant’s name, surname, date of birth, nationality, place of birth and place of residence, as well as the passport number and its validity. It was indicated in the decisions that appeals could be lodged against them “in accordance with the law”. A reference was made to section 20 of the Immigration Law, indicating that “a foreigner must lodge such an appeal with a representation office ( pārstāvniecība ) within ten working days” (contrast the time-limit laid down in domestic law, cited in paragraph 26 below). The decisions were drafted in Latvian and English.

9 . The applicants were requested to sign the decisions but refused. This was attested by the signatures of two border officials who signed as “witnesses”; their identities were not fully disclosed.

10. The applicants were returned to Belarus the same day. They did not appeal against the decisions refusing them entry into Latvia.

(b) Events in dispute

(i) The applicants’ account of events

11 . The applicants orally expressed their wish to apply for international protection as soon as they were approached by Latvian border officials on the train. They could not stay in Belarus any longer; the authorities in Chechnya were looking for the first applicant. They also submitted a written application containing an explicit request for international protection and a brief description of the reasons for seeking asylum prepared by Mr B for them (see paragraph 17 below). The applicants have not provided the Court with a copy of the written application in question but submitted that it had been very similar to the applications they had presented to the Polish and Lithuanian authorities and copies of which they had kept and presented to the Court in applications M.A. and Others v. Lithuania and M.K. and Others v. Poland (both cited above). The border officials ordered the applicants to leave the train and enter a building in Indra. The second applicant did not feel well, stumbled on the stairs and fell to the ground when leaving the train. One border guard gave her water mixed with sugar. He said that it would help her to calm down, and that the applicants’ troubles were behind them and that they should not worry.

12 . In Indra, the applicants handed over their passports to the border officials. They did not hide the fact that they had no documents authorising entry or hide stamps showing that they had been refused entry into Poland on five occasions and Lithuania on three occasions. The first applicant informed the border officials of their unsuccessful attempts to apply for asylum elsewhere, emphasising that they were seeking asylum, that they could not go back to Belarus owing to the risk of deportation to Russia and that they feared the Belarusian police. The applicants contested the Government’s assertion that they had not been aware that a visa was necessary to enter Latvia (see paragraph 21 below). In 2017 they had attempted to enter the European Union on several occasions so they knew how to lodge an asylum application and that they would not be allowed to enter without a valid document. The applicants were held in the building in Indra for about four hours.

13. The border officials stamped the applicants’ passports with “denied entry” stamps. The applicants refused to sign the decisions refusing them entry (see paragraph 9 above) because they disagreed; they had sought international protection and it had been ignored. The applicants were not issued with copies of those decisions. They were escorted out of the building and taken to Belarus in a car.

14. In support of their assertions, the applicants submitted documents and photographs relating to their previous border-crossing attempts in Poland and Lithuania. They did not submit any documents addressed to the Latvian authorities or any photographs taken in Indra. They did, however, refer to international material, dated 2010-12, indicating that asylum-seekers had difficulties in accessing the asylum procedure in Latvia. They also referred to more recent reports (see paragraph 38 below).

15. In addition, they provided written statements by two members of the Organisation.

16 . One of the founders of the Organisation, Ms A, stated that volunteers had been trained to interview asylum-seekers and fill in the asylum request template that the Organisation had created. According to the Organisation’s database, on 18 April 2017 the applicants had asked for their assistance in applying for international protection in Poland. The Organisation had provided humanitarian aid to the applicants until December 2017, when they had lost contact with them. Ms A also confirmed that Mr B had volunteered for the Organisation from September to December 2017, and that she had supervised his work.

17 . Mr B asserted that the first applicant had approached him in mid-November 2017 and asked him to prepare a request for asylum to be addressed to the Latvian authorities, similar to those that the Organisation had prepared for the Polish and Lithuanian authorities. Mr B had prepared the request in Russian and handed it over in person to the first applicant at the Organisation’s office in Brest. Just like all other requests prepared by the Organisation and him, it had been entitled “request for international protection” ( ходатайство о предоставлении международной защиты ) in large bold letters. It had contained the names, dates of birth and passport numbers of all the family members, as well as a brief description of reasons for seeking asylum (see paragraph 11 above). At the end of November or beginning of December 2017, Mr B had again met the first applicant in Belarus. The first applicant had told him that they had travelled to Latvia by train, had submitted a request for asylum and had asked for asylum but had been returned to Belarus. Lastly, Mr B stated that he had also assisted another Russian national of Chechen origin who had travelled twice to the Latvian-Belarusian border and asked for international protection, but his requests had been ignored and he had been returned to Belarus.

18 . The applicants also referred to an example of a family from Chechnya who had only been admitted to the asylum procedure after their second attempt to enter Latvia through the Indra border crossing point on 30 August 2017 (see paragraphs 31 and 35 below). It was the experience of that family that had encouraged the applicants to apply for asylum in Latvia but they could not do that before November 2017 for lack of financial resources.

(ii) The Government’s account of events

19 . Having examined the facts of the case and the available documents gathered by the domestic authorities, the Government could not confirm that the applicants had submitted a request for asylum either orally or in writing when they travelled to Indra. The Government found no direct or indirect confirmation of the applicants’ allegation in that regard.

20. Two border guards conducted passport control in the train carriage where the applicants were seated and established that twenty-nine Russian nationals, including the applicants, did not have valid visas or residence permits. They asked questions about the purpose of the applicants’ trip, their place of residence and the reasons why they did not have visas and had been refused entry into Poland and Lithuania. Those questions were asked in Russian. According to the stamps in the applicants’ passports, the border guards established that the applicants had previously attempted to enter Poland (on 11 and 19 April 2017, 16 and 20 June 2017 and 13 July 2017) and Lithuania (on 16 April 2017, and 11 and 22 May 2017). The two border guards then called a senior officer, who asked additional questions, but the applicants were unable to provide sufficient information.

21 . All twenty-nine people were transferred from the train to the service building of the Indra border crossing point. Four families with children were placed in separate rooms. The applicants were placed in a room on the second floor and not in rooms intended for asylum-seekers. The senior officer and another border guard conducted individual interviews with all the adults during which they stated that they did not know that visas were required to enter Latvia. No asylum requests were made either orally or in writing. There were no indirect indications that they were seeking asylum either.

22. Information on the asylum procedure and about a SBGS hotline was available in the building of the Indra border crossing point, including in Russian.

23. In general, the majority of Russian nationals who entered Latvia did so for business, tourism, and family reasons and Russian nationals were not considered to be part of a risk group who would seek asylum in Latvia. The influx of Russian nationals usually increased significantly during November and December owing to the holiday season. The Government also pointed to regional differences in asylum flows and the specifics of border controls that had to be taken into account. They submitted that some Russian nationals had been previously convicted in Latvia for trafficking goods or people across the border. Also, in many cases, concerns about persecution and risks of ill-treatment were not confirmed and people left the country to travel onwards to Western Europe without awaiting final decisions in the context of the asylum procedure.

24 . In support of their assertions, the Government did not submit any documents attesting to the content of the interviews held by the border officials with the applicants or any other reports. However, they submitted the decisions refusing entry in respect of each applicant (see paragraph 8 above) and twenty-two other Russian nationals who had been on the same train. They also submitted statements taken from by two train conductors, whose identity was not fully disclosed – their full names had been obscured; only their initials could be identified. According to them, thirty-five Russian nationals – without Schengen visas – had boarded the train in Minsk. There had been no grounds to refuse them boarding the train as they had had travel documents. Belarusian border officials had removed six people from the train at another station before the Latvian border.

25 . The subsequent events have been described in M.K. and Others v. Poland (cited above, §§ 44-51) and M.A. and Others v. Lithuania (cited above, §§ 22-26). In particular, the first applicant was summoned to the Brest police station and informed that he and his family had to leave Belarus or they would be deported. The applicants left Belarus and travelled to Smolensk, Russia, where the first applicant was immediately detained by the police and later transferred to Grozny in Chechnya. In February 2018 the first applicant was released from detention. He alleged that he had been beaten by detention facility staff and provided photographs of significant bruises on his body. The applicants were eventually admitted to Poland and were placed in a refugee reception centre. On 18 May 2018 they voluntarily left that centre and travelled to Germany (see M.K. and Others v. Poland , cited above, § 49), that is, several days before the present application was lodged.

26 . Section 20 of the Immigration Law ( Imigrācijas likums ) provides as follows:

“(1) A foreigner has the right to contest before a representation office a decision refusing entry into the Republic of Latvia within 30 days after the decision is taken.

(2) The application referred to in [subsection 1] shall be examined by the head of the State Border Guard Service or an official authorised by him or her.

(3) A decision on the contested administrative act may be appealed against to the Administrative District Court in accordance with the procedures laid down in law. The court’s ruling shall be final and not amenable to appeal.

(4) Contesting and appealing against the decision referred to in [subsection 1] shall not suspend operation thereof.”

27 . Section 6 of the Asylum Law ( Patvēruma likums ), which took effect on 19 January 2016, provides as follows:

“(1) A person is entitled to express the wish to acquire refugee or alternative status orally or in writing.

(2) A person shall submit an application for the granting of refugee or alternative status in person to the State Border Guard [Service]:

1) at a border-crossing point or border-crossing transit zone before entering the Republic of Latvia;

2) at any unit of the State Border Guard [Service], if the person is in the Republic of Latvia.

(3) An oral request to acquire refugee or alternative status shall be drawn up by the State Border Guard Service in writing, in the presence of the asylum-seeker.

...

(5) If there are indications that a third-country national or stateless person who is at a border-crossing point or border-crossing transit zone at the external border of the Republic of Latvia ... may wish to acquire refugee or alternative status (is afraid to return to the country of origin or there are other circumstances pointing to the need for international protection), the State Border Guard [Service] ... shall provide him or her with information regarding the possibility of doing so.

...”

28. In accordance with section 7(1) of the Asylum Law after receipt of an application or reception of an asylum-seeker in accordance with Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013, the SBGS shall (i) register the asylum-seeker’s application within no later than three or – if a large number of applications has been submitted – ten working days after its receipt, (ii) take fingerprints of each asylum-seeker who is at least 14 years of age in order to verify his or her identity, and (iii) identify the asylum-seeker and ascertain his or her nationality.

29. On 12 January 2011 the SBGS and United Nations High Commissioner for Refugees (UNHCR) Representation for the Nordic and Baltic countries signed a Memorandum of Understanding on the modalities of mutual cooperation to support the access of asylum-seekers to the territory and asylum procedures of Latvia. According to that Memorandum, representatives of the UNHCR Representation and the SBGS meet at least twice a year to discuss questions in relation to the implementation of the Memorandum.

30 . The Government submitted minutes of a meeting held on 2 March 2018 between representatives of the SBGS and UNHCR. The meeting was aimed at seeking practical solutions in relation to, among other things, applications lodged at the border, in particular by asylum-seekers from Russia transiting Belarus. A representative of UNHCR confirmed that no claims had been made against Latvia in that regard, but that they had to discuss practical issues: the acceptance of such applications at the border and admission to the asylum procedure. A representative of the SBGS replied that those principles were well known in Latvia. The SBGS planned to review the practice to ensure compliance with international standards in relation to asylum-seekers.

31 . Both parties discussed the case of the Russian family who had only been admitted to the asylum procedure after their second attempt to enter Latvia on 30 August 2017 (see paragraph 18 above).

32 . In addition, the SBGS submitted monthly statistical reports to UNHCR. According to the report for the period from 1 to 30 November 2017, 136 people (including thirty-nine Russian nationals) had been refused entry into Latvia. Ninety-eight had attempted to enter Latvia through three border crossing points in the Daugavpils area (including thirty-one people through Indra); all had been returned to their country of departure. No applications for asylum had been registered at any border crossing points in the Daugavpils area (including Indra).

33 . According to the Government, twenty-four Russian nationals had applied for asylum in Latvia in 2016. Three applications had been received at the border, and twenty-one within the territory of Latvia (by people who had entered the Schengen area with a valid visa or temporary residence permit).

34. Following an examination of those applications: (i) four people were granted refugee status; (ii) three people received a residence permit and the asylum procedure was discontinued; (iii) five people left the asylum centre and the asylum procedure was discontinued; (iv) three people were transferred to another State to have their applications examined; and (v) nine people were refused international protection in Latvia.

35 . According to the Government, twenty-six Russian nationals had applied for asylum in Latvia in 2017. Fifteen applications had been received at the border (including seven at the Indra border crossing point on 30 August 2017) and eleven within the territory of Latvia (by people who had entered the Schengen area with a valid visa or temporary residence permit).

36 . Following an examination of those applications: (i) six people were granted refugee status; (ii) one person left the asylum centre and the asylum procedure was discontinued; (iii) three people were transferred to another State to have their applications examined; and (iv) sixteen people were refused international protection.

37 . In 2015, during the second cycle of the Universal Periodic Review in respect of Latvia, UNHCR provided the following submissions to the Office of the High Commissioner for Human Rights:

III. KEY PROTECTION ISSUES, CHALLENGES AND RECOMMENDATIONS

“ Issue 1: Admission to the territory and access to asylum procedures

As [a] result of the implementation of the Memorandum of Understanding on border monitoring activities, concluded by the SBG[S] and UNHCR in 2011, the identification of persons in need of international protection at the border-crossing points (BCPs) has improved in Latvia. The capacitated border guards increasingly register asylum applications at the BCPs, and ensure that they are referred to the central determining authority, the OCMA [Office of Citizenship and Migration Affairs]. Nevertheless, some concerns with access to the territory remain. UNHCR has been notified of instances where asylum applications were registered by [the] SBG[S] only after an individual had explicitly expressed his/her wish to apply for asylum. In this regard, UNHCR notes that a wish to apply for protection does not need to be expressed in any particular form and that the word ‘asylum’ does not need to be used expressly; instead the defining element is the expression of fear of return. Therefore, where there are indications that third-country nationals or stateless persons at border-crossing points, including in transit zones, may wish to make an application for international protection, the representatives of the SBG[S] need to provide them with information on the possibility to do so and register their asylum application without delay. If an expression can be construed as a wish to apply for protection, the border officials should refer the applicant to the central determining authority.

The aforementioned incidents have highlighted the necessity to continue building the capacity of the Latvian border guards to proactively identify persons, in particular those with specific needs, such as victims of torture and trauma, who would like to seek international protection, and to ensure that they have access to the territory and to the asylum procedure. This is a requirement under the EU recast Asylum Procedure Directive , and an essential element to prevent refoul[e]ment. Enhanced training for border guards and immigration personnel was also recommended by Canada during the 1st cycle UPR, which enjoyed the support of Latvia.

UNHCR is also concerned that currently the SBG[S] is responsible for conducting all types of interviews with asylum-seekers. UNHCR is aware that the new draft Asylum Law foresees that the competence for conducting personal interviews in the accelerated and regular procedures will be handed over from the SBG[S] to the OCMA. The same draft law seems to retain the responsibility of the SBG[S] to conduct the initial/screening interviews with asylum-seekers at the admissibility stage. ... UNHCR is of the view that a central determining authority (the OCMA in Latvia) should be responsible for interviewing applicants for international protection at both the admissibility stage and in accelerated or regular procedures operated within the country or at borders. The central determining authority has the necessary experience, knowledge of the grounds for international protection and access to updated country of origin information.

Although the Latvian legislation envisages a right to appeal any administrative decision or action, including refusal of entry and rejection of an asylum application at the border or in the transit zone, it is very difficult for applicants to exercise this right in practice due to the lack of access to free legal counselling and/or assistance at the Latvian BCPs. Persons who apply for asylum at BCPs/transit zones are thus limited in their access to an effective remedy before a court against the decision taken at the border. Therefore, there is a necessity to introduce additional procedural safeguards in the national legislation in order to ensure access to an effective remedy in case of denial of access to the territory.

Recommendations :

UNHCR recommends that the Government of Latvia:

38 . Having considered the sixth periodic report of Latvia at its meetings held on 20 and 21 November 2019, the United Nations Committee against Torture (CAT) on 5 December 2019 adopted the following conclusions and recommendations (CAT/C/LVA/CO/6):

“ The State party should :

(a) Abide by its obligations under article 3 of the Convention and ensure that, in practice, no one may be expelled, returned or extradited to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture or ill-treatment;

(b) Ensure that procedural safeguards against refoulement are in place and that all persons in need of international protection receive appropriate treatment at all stages, including at border crossings, and can benefit promptly from free legal aid, in particular in case of appeal against refusal of entry or registration; and ensure that appeals against decisions concerning asylum have suspensive effect.”

COMPLAINTS

39. The applicants raised various complaints under Article 3 of the Convention and Article 4 of Protocol No. 4 to the Convention, taken alone and in conjunction with Article 13 of the Convention.

THE LAW

40. The applicants complained that they were returned to Belarus on 24 November 2017 without their asylum claims and, therefore, their fears of ill-treatment in Russia and of degrading conditions in Belarus, having been reviewed by the Latvian authorities. The first applicant stated that as a result he had been exposed to a chain of refoulement from Belarus to Russia, where he had subsequently been tortured, while the other applicants had suffered uncertainty, anguish and distress. Lastly, they complained that they had not been afforded an effective remedy under Latvian law with regard to those complaints.

41. They relied on Articles 3 and 13 of the Convention, which read as follows:

Article 3 (prohibition of torture)

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 13 (right to an effective remedy)

“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.”

42 . The Government raised several objections as regards the alleged abuse of the right of application, untrue statements, and non-exhaustion of domestic remedies.

43 . The applicants disagreed.

44. The Court does not consider it necessary to address all the Government’s objections because the applicants’ complaints are in any event inadmissible for the following reasons.

45. The Court has summarised the general principles concerning its case-law under Article 3 of the Convention in its judgments in the cases of Ilias and Ahmed v. Hungary ([GC], no. 47287/15, §§ 124-41, 21 November 2019), M.K. and Others v. Poland (cited above, §§ 166-73), and M.A. and Others v. Lithuania (cited above, §§ 102-04).

46. 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 has 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 (see, as a recent example, D.A. and Others v. Poland , no. 51246/17, § 57, 8 July 2021). In a situation where a Contracting State seeks to remove the asylum seeker to a third country without examining the asylum request on the merits, the main issue to be determined is whether or not the individual will have access to an adequate asylum procedure in the receiving third country (see Ilias and Ahmed , cited above, §§ 130-31).

47. The Court notes, at the outset, that the parties agreed that the applicants had been on the train in question, that Latvian border officials had asked them to leave the train, and that they had spent several hours in the building at the Indra border crossing point. The applicants’ entry had been refused because they did not have valid visas.

48. The major disagreement between the parties in the present case was whether the applicants had actually applied to the Latvian authorities for asylum. The applicants insisted that they had done so orally and in writing, while the Government submitted that they had not made any asylum claims or expressed any fears.

49. In assessing the evidence, on which to base the decision as to whether there has been a violation of Article 3, the Court adopts the standard of proof “beyond reasonable doubt” and such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Khlaifia and Others v. Italy [GC], no. 16483/12, § 168, 15 December 2016, and the references cited therein).

50 . The Court has also stated that the distribution of the burden of proof and the level of persuasion necessary for reaching a particular conclusion are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. In the context of expulsion of migrants, the Court has previously stated that where the absence of identification and personalised treatment by the authorities of the respondent State is at the very core of an applicant’s complaint, it is essential to ascertain whether the applicant has furnished prima facie evidence in support of his or her version of events. If that is the case, the burden of proof should shift to the Government (see N.D. and N.T. v. Spain [GC], nos. 8675/15 and 8697/15, § 85, 13 February 2020; and, more recently, Shahzad v. Hungary , no. 12625/17, § 35, 8 July 2021, and M.H. and Others v. Croatia , nos. 15670/18 and 43115/18, § 268, 18 November 2021). The Court considers that these principles in so far as they relate to assessment of the evidence and burden of proof are applicable in the case at hand.

51. It is in principle for the applicants to adduce evidence that they asked the Latvian authorities for asylum and that they invoked before them the existence of a risk of ill-treatment in case of return to Belarus, from where they had entered Latvia. As the applicants did not claim that the Latvian authorities had failed to identify them, the burden of proof does not automatically shift to the Government (compare and contrast N.D. and N.T. v. Spain , cited above, §§ 86-88).

52. The Court observes that the applicants provided a generally clear, specific and coherent description of the events that took place on 24 November 2017. The applicants arrived at the official railway border crossing point in Indra by train as part of a larger group of Russian nationals; most of them were from Chechnya (see paragraph 8 above). The applicants presented themselves to the Latvian border officials – who had boarded the train at Indra – provided their identity documents, did not hide the fact that they had no visas or documents authorising them entry into Latvia and asked for international protection orally and in writing. According to the applicants, they could not stay in Belarus any longer; the authorities in Chechnya were looking for the first applicant. In their further discussions with the Latvian border officials, the applicants emphasised that they wished to seek asylum in Latvia, that they could not go back to Belarus owing to the risk of deportation to Russia (see paragraphs 11-18 above).

53 . However, in contrast to their previous cases against Poland and Lithuania, in the present case the applicants did not submit any evidence of having applied to the Latvian authorities for asylum in Indra. They did not submit a copy of their asylum request (compare M.K. and Others v. Poland , nos. 40503/17 and 2 others, § 175, 23 July 2020, where the applicants submitted a copy of their request to the Court). Nor did they submit any photographs taken on the Latvian-Belarusian border (compare M.A. and Others v. Lithuania , no. 59793/17 §§ 110, 11 December 2018, where the applicants submitted a copy of their request and also a photograph taken by them on the border). There is no indication that they referred to “azul” – a word often used by Chechen asylum-seekers to mean “asylum” (compare M.A. and Others v. Lithuania , cited above, § 108, where the applicants wrote down “azul” on the decisions refusing them entry). Such absence of documentary evidence is particularly striking given that the applicants were represented by the same representative (see paragraph 1 above) as in their cases against Lithuania and Poland (see M.A. and Others v. Lithuania , § 2, and M.K. and Others v. Poland , § 2, both cited above). Their representative was extensively involved in communicating with the Court, including making several requests on behalf of the applicants under Rule 39 of the Rules of Court, some of which were granted (see M.K. and Others v. Poland , cited above, §§ 32, 41 and 47). The Court also notes that the applicants presented themselves at the Latvian border on only one occasion (compare M.K. and Others v. Poland , § 175, and M.A. and Others v. Lithuania , § 111, both cited above, which concerned multiple unsuccessful attempts to enter).

54. Moreover, Ms A submitted that, according to their database, the Organisation had been requested to prepare an asylum request for the Polish authorities (see paragraph 16 above). In the absence of any further evidence, the Court does not find the statement by Mr B – that he had drafted a similar request for the Latvian authorities – credible, as Ms A, who supervised all his work, did not confirm that this was the case. Even assuming that Mr B did help the applicants to prepare such a request, there is no evidence that they actually handed it over or asked the Latvian authorities for asylum orally. If Mr B did indeed prepare the request for asylum, the applicants did not provide a convincing explanation as to why they were unable to submit a copy of that document to the Court. As established above (see paragraph 53), they were able to submit copies of similar requests and other documentary evidence (such as photographs) in their previous cases against Lithuania and Poland. The Court notes that the applicants, who received assistance from a non-governmental organisation in Belarus and who were represented by a human-rights defender before the Court, did not explain what unsurmountable practical difficulties they had encountered in obtaining a copy of their request to the Latvian authorities or in obtaining other documentary evidence in that regard and submitting it to the Court in the present case.

55. Although UNHCR have expressed some concerns about the identification of asylum-seekers on the Latvian border, their concerns related to a period prior to the entry into force of the Asylum Law and, in any event, more than two years prior to the events under consideration (see paragraphs 27 and 37 above). During the meeting of 2 March 2018, UNHCR confirmed that no claims had been made against Latvia in that regard (see paragraph 30 above). Accordingly, the Court is not persuaded that the applicants’ account of events is corroborated by the available international material (compare Kebe and Others v. Ukraine , no. 12552/12, § 105, 12 January 2017). Moreover, the information provided by the Government demonstrates that some asylum applications from Russian nationals were accepted at the border in 2016 ‑ 17, including at the Indra border crossing point (see paragraphs 33 and 35 above).

56 . Having in mind that the level of persuasion necessary for reaching a conclusion is linked to the specificity of the facts (see paragraph 50 above) and taking into account (i) the applicants’ previous attempts to be admitted to the asylum procedure in Poland and Lithuania, their capacity to submit documentary evidence in relation to those previous border-crossing attempts in the two cases against those States, (ii) their failure to convincingly explain why they had not been able to submit similar documentary evidence in the present case, and (iii) the lack of international material corroborating their allegations concerning admission to the asylum procedure in Indra – the Court considers that the applicants have not provided prima facie evidence of having applied to the Latvian authorities for asylum on 24 November 2017. Their assertions in that regard presented to the Court have been adequately refuted by the Government. Accordingly, the Court is not persuaded that the applicants applied to the Latvian authorities for asylum on 24 November 2017.

57 . It follows that the applicants’ complaints under Articles 3 and 13 are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

58. The applicants also alleged that they had been subjected to a collective expulsion and that they had not had an effective remedy in that regard.

59. They relied on Article 4 of Protocol No. 4 to the Convention and Article 13 of the Convention, which read as follows:

Article 4 of Protocol No. 4 (prohibition of collective expulsion of aliens)

“Collective expulsion of aliens is prohibited.”

Article 13 (right to an effective remedy)

“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.”

60. The Government raised similar objections (see paragraph 42 above). In any event, the present case differed from Hirsi Jamaa and Others v. Italy ([GC], no. 27765/09, ECHR 2012), as the applicants and other foreigners in the present case had been identified. They had been transferred to waiting rooms at the Indra border crossing point, their kinship and age had been determined, and they had been separated into family groups based on kinship. The adults had been interviewed about their personal circumstances individually, and each family had been in a separate waiting room. The interviews had been held in Russian. Thus, the applicants had had the possibility to submit arguments against their expulsion. Similarly, as in Khlaifia and Others v. Italy ([GC], no. 16483/12, 15 December 2016) the standardised nature of the decisions refusing entry could be explained by the fact that the applicants had had no valid travel documents and had not stated that they feared ill-treatment upon return. The decisions refusing entry had been drafted using the standard form for refusal of entry in line with the Immigration Law and the Schengen Borders Code.

61. The applicants disagreed. In any event, they reiterated that arguments against their removal had been ignored and that their individual situation had not been examined despite their vulnerability. Unlike the applicants in the case of N.D. and N.T. v. Spain , they had not crossed the land border in an unauthorised manner. It remained unclear whether they could have effectively applied for admission to Latvia at its border with Belarus or at Latvia’s diplomatic missions and consulates abroad (the applicants relied, by contrast, on N.D. and N.T. v. Spain , cited above, §§ 213-17 and 212).

62. The Court does not consider it necessary to address the Government’s objections because the applicants’ complaints are in any event inadmissible for the following reasons.

63. The Court has established that the applicants did not prove that they had applied to the Latvian authorities for asylum on 24 November 2017 and that their complaints under Articles 3 and 13 of the Convention in that regard are manifestly ill-founded (see paragraphs 56 ‑ 57 above). However, the Court has interpreted the term “expulsion” in the generic meaning in current use (“to drive away from a place”) (see Khlaifia and Others , § 243, and Hirsi Jamaa and Others , § 174, both cited above), as referring to any forcible removal of an alien from a State’s territory, irrespective of the lawfulness of the person’s stay, the length of time he or she has spent in the territory, the location in which he or she was apprehended, his or her status as a migrant or an asylum-seeker and his or her conduct when crossing the border (see N.D. and N.T. v. Spain , cited above, § 185). It has also applied Article 4 of Protocol No. 4 to those who were apprehended in an attempt to cross a national border by land and were immediately removed from the State’s territory by border guards (ibid., § 187). Consequently, the Court cannot dismiss the applicants’ complaint under Article 4 of Protocol No. 4 merely because they did not prove that they had applied to the Latvian authorities for asylum on 24 November 2017. The Court considers that the removal of the applicants from Latvia to Belarus amounted to “expulsion” within the meaning of Article 4 of Protocol No. 4.

64. The Court has recently summarised general principles concerning its case-law under Article 4 of Protocol No. 4 to the Convention in the case of N.D. and N.T. v. Spain (cited above, §§ 166‑88 and 193-01). In particular, the fact that a number of aliens are subject to similar decisions does not in itself lead to the conclusion that there is a collective expulsion, if each person concerned has been given the opportunity to put arguments against his or her expulsion to the competent authorities on an individual basis (see Khlaifia and Others , cited above, § 239; M.A. v. Cyprus , no. 41872/10, §§ 246 and 254, ECHR 2013 (extracts); Sultani v. France , no. 45223/05, § 81, ECHR 2007 ‑ IV (extracts); and Hirsi Jamaa and Others , cited above, § 184). However, Article 4 of Protocol No. 4 does not guarantee the right to an individual interview in all circumstances, as the requirements of this provision may be satisfied where each alien has a genuine and effective possibility of submitting arguments against his or her expulsion, and where those arguments are examined in an appropriate manner by the authorities of the respondent State (see Khlaifia and Others , cited above, § 248).

65. The Court has held that the applicant’s own conduct is a relevant factor in 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 lack of an individual expulsion decision can be attributed to the applicant’s own conduct (see Khlaifia and Others , § 240, and Hirsi Jamaa and Others , § 184, both cited above; see also M.A. v. Cyprus , cited above, § 247; Berisha and Haljiti v. the former Yugoslav Republic of Macedonia (dec.), no. 18670/03, 16 June 2005; and Dritsas and Others v. Italy (dec.), no. 2344/02, 1 February 2011). In the last two cases, it was the lack of active cooperation with the available procedure for conducting an individual examination of the applicants’ circumstances which prompted the Court to find that the Government could not be held responsible for the fact that no such examination was carried out.

66. In a different factual context, the Court will take account of whether in the circumstances of the particular case the respondent State provided genuine and effective access to means of legal entry, in particular border procedures. Where the respondent State provided such access but an applicant did not make use of it, the Court will consider, in the context in issue and without prejudice to the application of Articles 2 and 3, whether there were cogent reasons not to do so which were based on objective facts for which the respondent State was responsible (see N.D. and N.T. v. Spain , cited above, § 201).

67. In the present case, it is uncontested that the applicants’ identity was established by the SBGS officials on 24 November 2017 at the Indra border crossing point. Their nationality was also established and their kinship and age determined, enabling them all to be placed together in the same room. The Court notes that the parties disagreed as to whether the applicants had been afforded a genuine and effective possibility of submitting arguments against their expulsion. They also disagreed as to the content of the applicants’ discussions and – what the Government claimed to have been – individual interviews – with the border guards. Be that as it may, the Court observes that the applicants did have several discussions or interviews with the border guards on the train and in the building of the Indra border crossing point, including with a senior officer. As the applicants remained there for several hours and they were placed in a separate room, they were given sufficient opportunity to submit their arguments to the national authorities on an individual basis. There were no communication barriers as the discussions or interviews were held in Russian, which the applicants understood. Even assuming that the applicants might have encountered some practical difficulties in explaining their situation to the officials in view of the second applicant feeling ill on the train (see paragraph 11 above), the Court is of the view that during the period that followed – which was not insignificant – the applicants had the possibility of drawing the attention of the national authorities to any circumstance likely to affect their status and entitling them to remain in Latvia.

68. The Court can accept the Government’s argument that the standardised nature of the decisions refusing entry could be explained by the fact that the applicants did not have valid visas allowing them to enter Latvia and, accordingly, the European Union. In the decisions it was clearly stated that the applicants’ entry was refused because they did not have valid visas or residence permits (see paragraph 8 above). Nor did the applicants prove that they had raised any arguments relating to their fear of ill ‑ treatment upon return (see paragraphs 56-57 above). They had a possibility of expressing their disagreement when asked to sign the decisions refusing entry, but they did not do so (see paragraph 9 above).

69. In the above circumstances, the Court considers that the simultaneous removal of all the applicants does not lead to the conclusion that their expulsion was “collective” within the meaning of Article 4 of Protocol No. 4 to the Convention. It follows that this part of the application is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

70. As regards the applicants’ complaint under Article 13, the Court reiterates that a complaint may only be made under that provision in connection with a substantive claim which is “arguable” (see, among other authorities, Boyle and Rice v. the United Kingdom , 27 April 1988, § 52, Series A no. 131). The Court has found above that the applicants’ complaint under Article 4 of Protocol No. 4 is manifestly ill-founded. It finds that that claim cannot be said to be “arguable” within the meaning of the Court’s case-law.

71. It follows that this part of the application must also be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, by a majority,

Declares the application inadmissible.

Done in English and notified in writing on 5 May 2022.

Martina Keller Síofra O’Leary Deputy Registrar President