A.S. AND OTHERS v. LITHUANIA

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Published on 17 July 2023

SECOND SECTION

Application no. 44205/21
A.S. and Others against Lithuania
lodged on 7 September 2021
communicated on 28 June 2023

SUBJECT MATTER OF THE CASE

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

The applicants are five Afghan nationals (see appended list).

The applicants submit that they are westernised and educated Afghan nationals: two of them are high school students, one is a journalist who had previously received threats from the Taliban, and two other applicants are English language teachers. Three of the applicants belong to the Hazara ethnic group.

Following the seizure of power by the Taliban in August 2021, the applicants fled Afghanistan, fearing possible torture and/or execution. They travelled to Russia and then to Belarus.

On 29 August 2021 the applicants arrived at the Belarussian side of the Belarussian-Lithuanian border, with the intention of crossing into Lithuania and seeking asylum there.

The applicants state that, on several occasions between 29 August and 14 September 2021, they attempted to cross the Belarussian-Lithuanian border on foot, but each time Lithuanian border guards pushed them back into the Belarussian territory, without giving them an opportunity to submit asylum applications. 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.

On an unspecified date in September 2021 the applicants crossed the Belarussian-Lithuanian border and contacted a lawyer in Lithuania who helped them lodge a request for interim measures with the Court.

On 8 September 2021 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 29 September 2021. On 9 September 2021 the applicants’ lawyer contacted the Lithuanian authorities, informing them about the Court’s decision. The lawyer also informed the Lithuanian authorities about the applicants’ location. The applicants then were apprehended by Lithuanian border guards, who informed the lawyer that the applicants would be returned to Belarus. The applicants’ lawyer immediately contacted the Agent of the Government of the Republic of Lithuania about the imminent violation of the Court’s interim measure, yet the Agent refused to intervene. The applicants were removed to Belarus, where they spent a night in the forest, and soon were arrested by the Belarussian border guards.

On 11 September 2021, after having been interrogated by the Belarussian border guards, the applicants were pushed into Lithuanian territory. The applicants’ lawyer notified the Lithuanian authorities of the applicants’ location and on 14 September 2021 the applicants were apprehended and brought to the Adutiškis frontier station of the State Border Guard Service, where their asylum applications were eventually accepted and registered.

The applicants are awaiting the outcome of the asylum proceedings, which are still pending. They do not enjoy freedom of movement within the territory of Lithuania.

On 28 September 2021 the Court lifted the interim measure.

The applicants complain under Articles 2 and 3 of the Convention that on six occasions they were pushed back to Belarus, which is not a safe third country, without being given an opportunity to request asylum in Lithuania. They further complain under Articles 2 and 3 that, during the pushbacks, refusing to accept their asylum requests for examination, the Lithuanian border guards put the applicants in a life-threatening situation, as they were stranded in the border area, going back and forth without food, drinking water and shelter and had to sleep in a forest in the cold under open sky. Relying on Article 4 of Protocol No. 4 they claim 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. They also complain under Article 34 that the Lithuanian authorities failed to comply with the interim measure indicated by the Court. Relying on Article 13 they finally claim that they did not have an effective remedy in respect of any of the aforementioned complaints.

QUESTIONS TO THE PARTIES

1. Were the applicants present on the Lithuanian territory at any time during the period from 29 August 2021 to 14 September 2021? 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 did not provide them with humanitarian 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 September 2021 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)?

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.

No.

Applicant’s Name

Year of birth

Nationality

Place of residence

S.A.N.

1993

Afghan