Communicated on 11 October 2017

FOURTH SECTION

Application no. 59793/17 M.A. and Others against Lithuania lodged on 25 July 2017

STATEMENT OF FACTS

The applicants, Mr M.A. (“the first applicant”), Ms M.A. (“the second applicant”) and their children, are Russian nationals who currently reside in Belarus. The Court decided that the applicants ’ identities should not be disclosed to the public (Rule 47 § 4). They are represented before the Court by Mr M. Matsiushchankau , a Belarusian human-rights activist.

A. The circumstances of the case

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

The applicants lived in the Chechen Republic. In 2005-06 the first applicant started having problems with the Russian security service ‑ according to him, that happened because his relatives had participated in the second Chechen war. Officers of the district police came to his home and questioned him at a police station, and his home was raided by armed people wearing masks. In 2009 he decided to leave the Chechen Republic and applied for international protection in Poland, and later moved to Austria. However, in 2010 he had to return to the Chechen Republic. There he started working in the State security system, where he participated in counter-terrorism operations and provided security to the highest officials of the Chechen Republic. He quit that job in October 2015, but before that happened he and his mother had been asked if he had been planning to join illegal armed groups in Syria. In February 2017 he was taken to the headquarters of the department at which he worked and asked to become an informer; he refused. In March 2017 two police officers came to his home and forcefully took him to a police station, where he was again asked to become an informer and again refused. Afterwards he was tortured – he was given electric shocks and beaten on the kidneys, head and other parts of his body. After that he agreed to become an informer and was released after five days of detention. The first applicant submits that after the torture he started suffering from health problems, such as pain in the kidneys and problems with memory.

In April 2017 the applicants left the Chechen Republic and went to Belarus with the aim of crossing into Poland. They submit that they attempted to lodge asylum applications several times on the Polish border but each time the border guards refused to accept their applications and returned them to Belarus (see the Court ’ s Statement of facts and Questions to the parties in M.A. and Others v. Poland , no. 42902/17, 3 August 2017).

On 16 April 2017 the applicants arrived at the Medininkai checkpoint on the border between Lithuania and Belarus. They asked the Lithuanian border guards for asylum but asylum proceedings were not initiated. The applicants were denied entry into Lithuania on the grounds that they did not have valid visas or residence permits; their passports were stamped but it appears that they were not served with a written decision to deny them entry or to refuse to accept their asylum applications. The applicants were returned to Belarus.

On 11 May 2017 the applicants arrived at the Kena checkpoint on the border between Lithuania and Belarus. They again asked for asylum but asylum proceedings were not initiated and they were denied entry into Lithuania on the same grounds as before. It appears that they were again not served with a written decision to deny them entry or to refuse to accept their asylum applications. After spending about four hours in detention, the applicants were returned to Belarus.

On 22 May 2017 the applicants arrived at the railway border checkpoint in Vilnius. They submitted a written asylum application, prepared by their lawyer, to the Lithuanian border guards (a copy of that application was provided to the Court). However, asylum proceedings were not initiated. The State Border Guard Service (hereinafter “the SBGS”) issued a decision in respect of each of the applicants, denying them entry into Lithuania on the grounds that they did not have valid visas or residence permits; the decisions indicated that an appeal against those decisions could be lodged with the Vilnius Regional Administrative Court within fourteen days. The first and the second applicants confirmed by their signatures that they had received copies of the decisions. After spending about seven hours in detention, at around 7 a.m. on 23 May 2017 the applicants were returned to Belarus.

The applicants did not appeal against any of the decisions taken by the SBGS.

Subsequently the applicants again attempted to lodge asylum applications in Poland, without success. On 16 June 2017 the Court decided to apply Rule 39 of the Rules of Court, indicating to the Polish Government that the applicants should not be removed to Belarus. However, it appears that the applicants were removed (see the Court ’ s Statement of facts and Questions to the parties in M.A. and Others v. Poland , cited above).

At the time when the applicants submitted their application to the Court (25 July 2017), they were staying in Belarus and had overstayed the period during which Russian nationals were allowed to legally stay there without registration (ninety days in a calendar year). The applicants submit that in Belarus they risk being returned to their country of origin.

B. Relevant domestic law

Article 2 § 18 3 of the Law on the Legal Status of Aliens (hereinafter “the Aliens Law”) defines an asylum application as a request to be granted asylum in the Republic of Lithuania, expressed by an alien in any form. Article 2 § 20 defines an asylum seeker as an alien who has submitted an asylum application in line with the requirements set out in the Aliens Law and a final decision in respect of that application has not yet been taken.

Article 65 provides that aliens have the right to seek and obtain asylum in Lithuania in line with the requirements set out in the Aliens Law. When there are indications that an alien who is in detention or at a border checkpoint or in the transit zone may wish to seek asylum, he or she must be informed in a language that he or she understands about such a right and the applicable procedures.

Article 69 §§ 1, 3 and 5 provide that an institution to which an asylum application has been submitted must, inter alia , note the date, time and location of the submission of such an application, interview the asylum seekers and assess whether they have any special needs, obtain their identity and travel documents, take their fingerprints, inspect their belongings, and within twenty-four hours forward all that information to the Migration Department.

Article 76 §§ 1 and 6 provide that the decision on whether to examine an asylum application on the merits is taken by the Migration Department within forty-eight hours of the submission of an asylum application.

Article 8 § 2 provides that a decision to deny an alien entry into Lithuania is taken by the SBGS but that such a decision cannot be taken with regard to an alien who has submitted an asylum application. Article 5 § 3 provides that when an alien submits an asylum application at a border checkpoint, the decision whether to allow him or her to enter into Lithuania is taken by the Migration Department.

Article 130 § 1 provides that an alien cannot be removed to a country in which there is a risk to his or her life or liberty, or where he or she may be persecuted on the grounds of his or her race, religion, nationality, membership of a social group, or political beliefs, or from which he or she may be removed to another such country. Article 130 § 2 provides that an alien cannot be removed to a country in which he or she may be subjected to torture or cruel, inhuman or degrading treatment or punishment.

Article 138 provides that decisions taken in accordance with the Aliens Law can be appealed against to a regional administrative court within fourteen days. Article 5 § 5 provides that aliens have the right to remain in the territory of Lithuania, and asylum seekers have the right to remain at the border checkpoint, during the time allowed for such an appeal.

Article 139 § 1 provides that when an appeal is lodged, the impugned decision is suspended in the following instances: (1) the decision was to revoke an alien ’ s residence permit; (2) the decision was to decline to examine an asylum application submitted by an alien who had arrived in Lithuania from a safe third country; (3) the decision was to reject an asylum application (with some exceptions). Article 139 § 2 provides that in other instances an administrative court may order interim measures and suspend the impugned decision.

COMPLAINTS

The applicants complain under Article 3 of the Convention that the Lithuanian authorities exposed them to a real risk of torture or inhuman treatment in Russia. They submit that Lithuanian border guards refused to accept their asylum applications and to initiate asylum proceedings. The applicants were returned to Belarus, which has no functioning international protection mechanism and thus there is a high risk that they will be returned to Russia, where they would face the risk of torture or inhuman treatment.

They also complain under Article 13 of the Convention, in conjunction with Article 3, that they did not have an effective remedy against the decisions to deny them entry into Lithuania. They submit that an appeal to the Vilnius Regional Administrative Court has no suspensive effect and does not guarantee a prompt decision, and thus cannot be considered an effective remedy.

QUESTIONS TO THE PARTIES

1. Having regard to the procedural protection from torture and inhuman or degrading treatment, was the authorities ’ refusal to accept the applicants ’ asylum applications and to initiate asylum proceedings on three occasions (16 April, 11 May and 22 May 2017) in breach of Article 3 of the Convention? In particular, before deciding on their return, did the Lithuanian authorities consider the applicants ’ claim that the return to Belarus would expose them to the risk of being returned to Russia, where they would face the risk of torture or inhuman treatment (see Jabari v. Turkey , no. 40035/98, §§ 38-39, ECHR 2000 ‑ VIII; Shamayev and Others v. Georgia and Russia , no. 36378/02, § 448, ECHR 2005 ‑ III; and De Souza Ribeiro v. France [GC], no. 22689/07, § 82, ECHR 2012)?

2. What safeguards are in place to ensure that asylum applications submitted at the Lithuanian border are properly registered and transferred to competent authorities for examination, as required by domestic law?

3. In the light of the information provided by the applicants, would they face a risk of being subjected to treatment in breach of Article 3 of the Convention if returned to Russia (see Bajsultanov v. Austria , no. 54131/10, §§ 38-50, 12 June 2012; I.K. v. Austria , no. 2964/12 , §§ 34 ‑ 55, 28 March 2013; and I v. Sweden , no. 61204/09, §§ 27-39, 5 September 2013)?

4. Did the applicants have at their disposal an effective domestic remedy for their complaint under Article 3, as required by Article 13 of the Convention? In particular, can an appeal against the decision of the State Border Guard Service denying the applicants entry into Lithuania be considered an effective domestic remedy, in view of the fact that it does not have automatic suspensive effect (see ÄŒonka v. Belgium , no. 51564/99, § 79, ECHR 2002 ‑ I; Gebremedhin [ Gaberamadhien ] v. France , no. 25389/05, § 58, ECHR 2007 ‑ II ; and Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 200, ECHR 2012)?

5. Were the applicants served copies of the decisions to deny them entry into Lithuania on 16 April and 11 May 2017 and informed of the possibility to appeal against those decisions?

The Government are requested to inform the Court of cases where individuals who had been denied entry into Lithuania appealed against those decisions to administrative courts – they are requested to provide any available statistics of such appeals and their outcomes, as well as examples of courts ’ decisions.