Published on 19 December 2022

SECOND SECTION

Application no. 31050/22 M.H. against Lithuania lodged on 10 June 2022 communicated on 28 November 2022

SUBJECT MATTER OF THE CASE

The application concerns deprivation of liberty of an asylum seeker.

The applicant is an Iraqi national. On 2 August 2021 he was apprehended by Lithuanian border guards near the Lithuanian-Belarussian border. He lodged an asylum application, stating that he feared persecution in his country of origin on the grounds of his sexual orientation.

At that time, an emergency situation had been declared in Lithuania because of a mass influx of aliens. According to the relevant provisions of the Law on the Legal Status of Aliens, aliens who were present in border checkpoints or transit zones were not considered as being on the territory of Lithuania, until a separate decision was adopted to that effect. Asylum seekers were to be “temporarily accommodated” in border checkpoints or reception centres, without granting them freedom of movement on the territory of Lithuania.

On 2 August 2021 the applicant was placed in the Padvarionys border checkpoint, on 27 September 2021 he was transferred to the Foreigners’ Registration Centre in Medininkai, and on 15 December 2021 to the Foreigners’ Registration Centre in Pabradė. During his stay in those facilities, he was not allowed to leave their premises, save for specific purposes, such as medical appointments or court hearings, and on such occasions he had to be accompanied by an officer. He was not presented with a written decision regarding his placement in any of the above facilities and, in the absence of any formal decision taken in his respect, he was not entitled to State-guaranteed legal aid.

In December 2021, with the help of a non-governmental organisation, the applicant lodged a complaint with the Vilnius District Court, submitting that he was being detained without a court order and asking to be released. On 2 February 2022 the court dismissed the complaint, finding that the applicant was not detained within the meaning of domestic law and that his temporary accommodation was in line with the law. On 3 March 2022 the Supreme Administrative Court dismissed the appeal lodged by the applicant. It found that the applicant had since been formally admitted to the Lithuanian territory (see below), therefore, the situation had been resolved. Accordingly, the applicant was no longer seeking to defend his rights but merely to establish the existence or lawfulness of certain facts; however, complaints of this type were outside the remit of administrative courts.

On 25 January 2022 the Migration Department adopted a decision to admit the applicant to the Lithuanian territory and to accommodate him at the Foreigners’ Registration Centre in Pabradė, without granting him freedom of movement on the territory of Lithuania.

The applicant lodged a complaint with the Vilnius District Court, asking it to annul the above decision and to lift restrictions on his freedom of movement. On 4 May 2022 the court dismissed his complaint. It found that the applicant had since been granted refugee status (see below), therefore, the subject matter of the dispute had ceased to exist. The applicant states that he was not notified of the decision to grant him refugee status prior to that date.

The applicant did not appeal against the Vilnius District Court’s decision of 4 May 2022. He submits that such an appeal had no prospects of success, in the light of the Supreme Administrative Court’s reasoning in the decision of 3 March 2022 (see above) and its decisions in similar cases.

On 21 April 2022 the Migration Department granted the applicant refugee status and a residence permit. He was officially notified of that decision on 6 May 2022. On 9 May 2022 he was transferred to the Refugees’ Reception Centre in Rukla and his freedom of movement was no longer restricted.

The applicant submits that he is not contesting the fact that he entered Lithuania in an irregular manner and that his detention for the initial 48 hours was therefore justified. However, he states that from 4 August 2021 to 9 May 2022 he was de facto deprived of his liberty without any justification or assessment of his vulnerability (he is homosexual, he suffers from epileptic seizures and has psychological problems) and without an effective possibility to challenge it. He raises these complaints under Article 5 §§ 1, 2 and 4 of the Convention.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of his liberty, within the meaning of Article 5 § 1 of the Convention, during the period from 4 August 2021 to 9 May 2022 (see Ilias and Ahmed v. Hungary [GC], no. 47287/15, §§ 211 ‑ 17, 21 November 2019, and, mutatis mutandis , R.R. and Others v. Hungary , no. 36037/17, §§ 74-83, 2 March 2021)?

2. Without prejudice to the answer to the previous question and assuming that the applicant was deprived of his liberty: ‑

(a) Was the deprivation of liberty in line with the requirements of Article 5 § 1 (f) of the Convention during the entire period (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) When ordering the deprivation of liberty, did the authorities carry out an assessment of the applicant’s vulnerability, in particular, his sexual orientation and his physical and mental health (see, mutatis mutandis , O.M. v. Hungary , no. 9912/15, § 53, 5 July 2016, and Yoh-Ekale Mwanje v. Belgium , no. 10486/10, § 124, 20 December 2011)?

(c) Was the applicant 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)?

(d) Did the applicant 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)?

When answering the above questions, the parties are asked to address separately the periods from 4 August 2021 to 25 January 2022 (when the applicant was formally admitted to the Lithuanian territory), from 25 January to 21 April 2022 (when the applicant was granted refugee status) and from 21 April to 9 May 2022 (when the applicant’s freedom of movement was no longer restricted).

3. Did the applicant exhaust the effective domestic remedies with regard to his complaint concerning the period from 25 January to 9 May 2022? The parties are asked to substantiate their submissions regarding the effectiveness of domestic remedies by providing examples of relevant domestic case-law.