Published on 23 May 2022

FIFTH SECTION

Application no. 42165/21 H.M.M. and Others against Latvia lodged on 20 August 2021 communicated on 3 May 2022

SUBJECT MATTER OF THE CASE

The application concerns events in the vicinity of the Latvian ‑ Belorussian border starting from 10 August 2021 and allegedly continuing as regards some of the applicants. The applicants are twenty ‑ six Iraqi nationals of Kurdish origin. Sixteen of them are no longer on Latvian territory and have been removed to Iraq by the Latvian authorities. Seven applicants are held in an accommodation centre for detained foreigners in Daugavpils in Latvia. One applicant is in Germany where he has requested international protection. The whereabouts of two applicants are unknown.

According to the applicants, on 10 August 2021 they crossed the Latvian ‑ Belorussian border on foot and on the same day were pushed back by the Latvian authorities to Belarus, which was not a safe third country. The applicants’ requests for asylum were not registered and reviewed by the Latvian authorities. As the Belorussian authorities did not allow them to enter Belarus, the applicants were stranded on the border in a forest area for some two weeks.

On 20 August 2021 eleven applicants (six adults and five children) were allowed to enter Latvia on humanitarian grounds. On an unspecified later date, the Latvian authorities took other applicants to a large tent located on Latvian territory, where they spent various periods of time (from several weeks to several months). During that period, they were allegedly pushed back again several times to the territory of Belarus where they were not allowed to enter or, if they entered, were pushed back to Latvia. On each occasion, upon their return to Latvia, the Latvian authorities took them back to the tent. The pushbacks to Belarus continued until some of the applicants were allegedly forced to agree to be removed to Iraq. Those applicants who so agreed were allowed to enter Latvia and, one or two weeks later, were removed to Iraq without their asylum claims having been registered and reviewed by the Latvian authorities.

The applicants complain that in August 2021 they were returned to the Latvian ‑ Belorussian border zone without their asylum claims having been registered and reviewed by the Latvian authorities and that they did not have access to basic amenities such as food, water, shelter, or medical assistance in that zone. Furthermore, a number of the applicants claim that between August and December 2021 they suffered frequent pushbacks from Latvia to Belarus which was not a safe third country and that the conditions in the tent in Latvia were inadequate – it was crowded and basic amenities were lacking. Some of the applicants claim to have been beaten by the guards and to have had their personal belonging taken and their phones destroyed. They rely on Article 3, taken alone and in conjunction with Article 13 of the Convention. They also rely on Article 4 of Protocol No. 4 to the Convention, taken alone and in conjunction with Article 13 of the Convention.

Some applicants also complain under Article 5 §§ 1 and 4 about their detention in the Daugavpils accommodation centre. One applicant appealed unsuccessfully against his detention there.

QUESTIONS TO THE PARTIES

In relation to applicants nos. 1 – 26

1. Were the applicants within the jurisdiction of Latvia, within the meaning of Article 1 of the Convention, during all the time when the events complained of unfolded? Are all of the events complained of imputable to the Latvian authorities?

2. Having regard to the procedural protection from torture or inhuman or degrading treatment or punishment, was the domestic authorities’ refusal to examine the applicants’ requests for international protection in breach of Article 3 of the Convention? In particular, did the Latvian authorities consider the applicants’ claims that they would be exposed, directly or as a result of refoulement, to a risk of being subjected to ill-treatment if returned to Belarus?

3. Did the Latvian authorities act in breach of their duties stemming from Article 3 of the Convention in that the material and sanitary conditions in which the applicants lived when stranded near the Latvian-Belorussian border for approximately two weeks in August 2021 were allegedly inadequate? In particular, did the applicants have access to basic amenities such as food, water, adequate medical care, and appropriate shelter and clothing given the weather conditions?

4. Did the Latvian authorities act in breach of their duties stemming from Article 3 of the Convention in that the material and sanitary conditions in the tent in which the applicants were held on the Latvian territory for different periods of time since August 2021 were allegedly inadequate? In particular, did the applicants have access to basic amenities such as food, water, adequate medical care, and appropriate shelter and clothing given the weather conditions?

5. Were the applicants, aliens in the respondent State, expelled collectively, in breach of Article 4 of Protocol No. 4? Reference is made to the applicants’ allegation that the officials did not allow them access to the asylum procedure in Latvia and held them, firstly, on the Latvian-Belorussian border and, subsequently, on the Latvian territory from where they were returned back to Belarus and/or Iraq without examination of their personal circumstances.

6. Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 3 of the Convention and Article 4 of Protocol No. 4, as required by Article 13 of the Convention?

In relation to applicants nos. 1 – 11

7. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention in respect of their complaints under Article 5 of the Convention?

8. Were the applicants deprived of their liberty in the accommodation centre for detained foreigners in Daugavpils in breach of Article 5 § 1 of the Convention? In particular:

(a) Did the deprivation of liberty fall within one of the exceptions under this provision?

(b) Was their deprivation of liberty “in accordance with a procedure prescribed by law”?

(c) As regards the applicant children, was their deprivation of liberty compatible with the requirements of Article 5 § 1 of the Convention in view of their vulnerability?

9. Did the applicants have at their disposal an effective and accessible procedure by which they could challenge the lawfulness of their deprivation of liberty, as required by Article 5 § 4 of the Convention? In particular, were the applicant children able to exercise this right?

In relation to applicants nos. 1 – 26

10. The Government are requested to submit all documents pertaining to the applicants’ complaints – their applications to various domestic authorities, any replies issued by those authorities, transcripts of interviews held with the applicants, decisions authorising their detention and minutes of hearings held in that connection.

11. The parties are requested to provide information about the relevant political and geographical context in which the alleged events took place.

12. The applicants are requested to provide specific information about their arrival at the Latvian-Belorussian border in August 2021. In particular, how did they arrive at the border, why were certain parts of the border (and not border crossings) chosen, and why were they congregating with others from that time in August 2021 onwards?

List of applicants

No.

Name Surname

Year of birth

Nationality

1.H.M.M.

1990Iraqi

2.A.R.O.

1993Iraqi

3.S.H.M.

2017Iraqi

4.Z.H.M.

2019Iraqi

5.H.A.A.

1993Iraqi

6.S.A.A.

1992Iraqi

7.M.H.A.

2020Iraqi

8.M.K.M.

1992Iraqi

9.N.J.M.

1998Iraqi

10.S.M.K.

2018Iraqi

11.B.M.K.

2020Iraqi

12.A.M.A.

1996Iraqi

13.F.F.A.

1989Iraqi

14.Z.A.Y.

1995Iraqi

15.A.J.A.

1991Iraqi

16.A.S.B.

1996Iraqi

17.R.A.H.

1987Iraqi

18.J.R.M.

1983Iraqi

19.N.R.M.

1985Iraqi

20.H.S.N.

1986Iraqi

21.N.A.S.

1998Iraqi

22.K.S.S.

1990Iraqi

23.Y.Y.A.

1973Iraqi

24.Y.R.H.

1982Iraqi

25.R.Y.Y.

2002Iraqi

26.R.Y.Y.

2010Iraqi