Published on 5 June 2023

SECOND SECTION

Application no. 27915/22 S.M.H. against Lithuania lodged on 8 June 2022 communicated on 17 May 2023

SUBJECT MATTER OF THE CASE

The application concerns retention of an asylum seeker, the conditions in relevant facilities and the existence of effective domestic remedies.

The applicant is an Iraqi national. On 25 July 2021 he was apprehended by Lithuanian border guards near the Lithuanian-Belarussian border and lodged an asylum application.

On 25 July 2021 the applicant was placed in a migrants’ camp in Druskininkai, on 30 July 2021 he was transferred to another camp in Rūdninkai, and on 25 September 2021 to the Foreigners’ Registration Centre in Kybartai. At the time of the lodging of the present application (on 8 June 2022) the applicant was still living in the latter facility. On 7 October 2022 the applicant informed the Court that he now lived in Germany.

The applicant complains about the conditions at the Foreigners’ Registration Centre in Kybartai. He submits that that facility is a former prison and that it has not been adapted to accommodate asylum seekers. He also complains that he was deprived of his liberty without any justification or individualised assessment of his circumstances, and that the first official decision to deprive him of his liberty was presented to him only on 10 February 2022. He further submits that he did not have a practical and effective possibility to lodge any complaints regarding his situation because he could not afford to hire a lawyer. Moreover, his phone had been taken away and he could not contact the lawyer provided by the State; in any event, State-provided lawyers did not respond to his messages and did not conduct in-person meetings in order to assess the individual needs of each asylum seeker, thereby making the legal assistance ineffective. The applicant raises these complaints under Articles 3 and 5 of the Convention.

QUESTIONS TO THE PARTIES

1. Did the material conditions in which the applicant was placed at the Foreigners’ Registration Centre in Kybartai amount to inhuman or degrading treatment, contrary to Article 3 of the Convention? The parties are asked to indicate the date of the end of the applicant’s stay in that facility.

2. Did the applicant have an effective remedy, within the meaning of Article 13 of the Convention, in respect of his complaint under Article 3 concerning the material conditions at the Foreigners’ Registration Centre in Kybartai (see Neshkov and Others v. Bulgaria , nos. 36925/10 and 5 others, § 181, 27 January 2015)?

3. Was the applicant deprived of his liberty, within the meaning of Article 5 § 1 of the Convention, during the period from 25 July 2021 to 8 June 2022 (the day of the lodging of the present application) and any subsequent periods (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)?

4. 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 (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) 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 v. Italy [GC], no. 16483/12, §§ 128-31, 15 December 2016, and the cases cited therein)?

(c) In order to ensure procedural fairness under Article 5 § 4 of the Convention, was it essential, in the circumstances of the present case, for the applicant to have effective assistance of a lawyer (see Černák v. Slovakia , no. 36997/08, § 78, 17 December 2013, and the case-law cited therein)? If so, did he have an effective access to free legal assistance?