Published on 19 December 2022

SECOND SECTION

Application no. 17764/22 C.O.C.G. and Others against Lithuania lodged on 8 April 2022 communicated on 2 December 2022

SUBJECT MATTER OF THE CASE

The application concerns summary returns (pushbacks) from Lithuania to Belarus and deprivation of liberty of asylum seekers.

The applicants are four Cuban nationals (see appended list). They submit that in July 2021 they took part in peaceful anti-government protests in their country of origin, which led to arrests and ill-treatment of numerous protesters. They left Cuba on various dates between August and December 2021, fearing for their safety. They travelled to Russia and stayed there until 30 March 2022. On the latter date, they travelled to Belarus, with the intention of crossing into Lithuania and seeking asylum there.

The applicants state that, on several occasions between 31 March and 6 April 2022, they attempted to cross the Belarussian-Lithuanian border on foot, but each time Lithuanian border guards pushed them back, at gunpoint, into the Belarussian territory, without giving them an opportunity to submit asylum applications. The border guards yelled at the applicants, pushed them and threatened them with violence, including the use of an electroshock device. After being refused entry into Lithuania, the applicants stayed in the forest near the border, for fear of being ill-treated by Belarussian border guards. They were cold and did not have sufficient food or any access to medical assistance.

On 8 April 2022 the applicants crossed the Belarussian-Lithuanian border and contacted Lithuanian volunteers who helped them lodge a request for interim measures with the Court. On the same day, the Court granted their request and notified the Lithuanian Government, under Rule 39 of the Rules of Court, that the applicants should not be expelled from Lithuania until 6 May 2022. The volunteers contacted the border authorities, informing them about the Court’s decision, and they sent a copy of that decision to the applicants by text message. The applicants were apprehended by border guards that night and taken to a border checkpoint, but the following morning the guards drove them to the border area and pushed them to Belarus. The border authorities later stated that, at that time, they had been unable to verify the accuracy of the information about the interim measures ordered by the Court.

The applicants entered Lithuanian territory again on an unspecified later date and were apprehended by border guards on 13 April 2022. They lodged asylum applications; the asylum proceedings are still pending. On 15 April 2022 the applicants were placed at the Foreigners’ Registration Centre in Medininkai, without the right to leave its premises.

On 4 May 2022 the Court lifted the interim measure.

The applicants complain under Articles 2 and 3 of the Convention that on several occasions they were pushed back to Belarus, which is not a safe third country, without being given an opportunity to request asylum in Lithuania; under Article 3 that, during each pushback, the Lithuanian border guards humiliated them, threatened them with violence and failed to provide them with humanitarian and medical assistance; under Article 4 of Protocol No. 4 that they were subjected to collective expulsion, without an examination of their individual situation and without having a genuine and effective access to means of legal entry; under Article 34 that the Lithuanian authorities failed to comply with the interim measure indicated by the Court; under Article 13 that they did not have an effective remedy in respect of any of the aforementioned complaints; under Article 5 § 1 that they were detained without any individualised assessment of their circumstances; under Article 5 § 2 that they were not informed of the grounds for their detention; and under Article 5 § 4 that they could not challenge their detention because the Law on the Legal Status of Aliens provides for automatic detention of asylum seekers.

QUESTIONS TO THE PARTIES

1. Were the applicants present on the Lithuanian territory at any time during the period from 31 March to 6 April 2022? If so, did they have a possibility to lodge asylum applications on each such occasion?

2. Were the applicants subjected to treatment contrary to Article 3 of the Convention at the hands of Lithuanian border guards? The Court refers, in particular, to the applicants’ submissions that the border guards verbally humiliated them, threatened them with physical violence, including the use of an electroshock device, and did not provide them with humanitarian or medical assistance.

3. Were the applicants subjected to summary returns (pushbacks) to Belarus? If so, did the Lithuanian authorities comply with their obligations under Article 3 of the Convention? The Court refers, in particular, to the following:

(a) the applicants’ submission that Belarus does not have a functioning asylum system and thus they were at risk of being returned to their country of origin (see Ilias and Ahmed v. Hungary [GC], no. 47287/15, §§ 134 and 141, 21 November 2019, and, mutatis mutandis , M.A. and Others v. Lithuania , no. 59793/17, § 113, 11 December 2018);

(b) the applicants’ submission that they were at risk of being ill-treated by Belarussian border guards and thus they did not have any other option than to stay in the forest.

4. Were the applicants subjected to collective expulsion of aliens, contrary to Article 4 of Protocol No. 4 to the Convention? In particular, did they have a genuine and effective access to means of legal entry into Lithuania (see N.D. and N.T. v. Spain [GC], nos. 8675/15 and 8697/15, §§ 193-201, 13 February 2020, and the cases cited therein)?

5. Did the applicants have an effective remedy, within the meaning of Article 13 of the Convention, in respect of:

(a) their complaint under Article 3 of the Convention concerning ill-treatment at the hands of Lithuanian border guards;

(b) their complaints under Article 3 of the Convention and Article 4 of Protocol No. 4 to the Convention concerning summary returns and collective expulsion to Belarus (see M.A. and Others , cited above, §§ 83-86 and 119, and M.K. and Others v. Poland , nos. 40503/17 and 2 others, §§ 219-20, 23 July 2020)?

6. Did the Lithuanian authorities comply with the interim measure, indicated by the Court on 8 April 2022 in accordance with Rule 39 of the Rules of Court, not to remove the applicants, as required under Article 34 of the Convention (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 128, ECHR 2005-I, and M.K. and Others , cited above, §§ 229-34)?

7. Were the applicants deprived of their liberty, within the meaning of Article 5 § 1 of the Convention, following their apprehension by Lithuanian border guards on 13 April 2022 (see Ilias and Ahmed , cited above, §§ 211-17, and, mutatis mutandis , R.R. and Others v. Hungary , no. 36037/17, §§ 76-83, 2 March 2021)?

8. Without prejudice to the answer to the previous question and assuming that the applicants were deprived of their liberty:

(a) Was the deprivation of liberty in line with the requirements of Article 5 § 1 (f) of the Convention (see Z.A. and Others v. Russia [GC], nos. 61411/15 and 3 others, § 162, 21 November 2019, and M.H. and Others v. Croatia , nos. 15670/18 and 43115/18, §§ 229-35, 18 November 2021, and the cases cited therein)?

(b) Were the applicants informed of the reasons for the deprivation of liberty in accordance with the requirements of Article 5 § 2 of the Convention (see Khlaifia and Others v. Italy [GC], no. 16483/12, § 115, 15 December 2016)?

(c) Did the applicants have a possibility to have the lawfulness of the deprivation of liberty reviewed by a court, as required under Article 5 § 4 of the Convention (see Khlaifia and Others , §§ 128-31, and R.R. and Others , § 97, both cited above)? The Court refers, in particular, to the applicants’ submission that the Law on the Legal Status of Aliens provides for automatic detention of asylum seekers. The parties are asked to provide examples of relevant domestic case-law.

The parties are asked to inform the Court about any changes in the applicants’ legal status in Lithuania and to provide copies of all relevant decisions.

APPENDIX

No.

Applicant’s Name

Year of birth

Nationality

Place of residence

1.C.O.C.G.

1991Cuban

Medininkai, Lithuania

2.S.R.H.P.

1992Cuban

Medininkai, Lithuania

3.D.G.C.

1995Cuban

Medininkai, Lithuania

4.Y.R.B.

2000Cuban

Medininkai, Lithuania