Published on 26 February 2024
SECOND SECTION
Application no. 957/23
T.M.N.
against Lithuania
lodged on 27 December 2022
communicated on 7 February 2024
SUBJECT MATTER OF THE CASE
The application concerns deprivation of liberty of an asylum seeker.
The applicant is a national of the Democratic Republic of the Congo. On 5 July 2021 she was apprehended by Lithuanian border guards near the Lithuanian-Belarussian border and lodged an asylum application. She submitted, inter alia, that she was a minor (born in 2005) and that she had been raped by her stepfather. During the applicant’s initial registration, the State Border Guard Service (hereinafter “the SBGS”) indicated that she was to be considered vulnerable by virtue of being an unaccompanied minor.
On 4 November 2021 the Migration Department rejected the applicant’s asylum application. She lodged an appeal against that decision. The Court has not been informed of any further decisions taken in the asylum proceedings.
It appears that from July 2021 to July 2022 the applicant was placed in various aliens’ reception facilities without the right to leave them; under domestic law, that measure was considered as “temporary accommodation without the right to freedom of movement”. On an unspecified date she was formally admitted to Lithuania. On 25 July 2022 restrictions on her freedom of movement were lifted and she was allowed to reside in a place of her choice.
On 29 August 2022 the applicant was apprehended by the border authorities while trying to travel from Lithuania to Poland using another person’s identity documents. It appears that she was convicted and given a sentence of detention, which she served from 22 to 28 September 2022.
On 30 September 2022 the District Court of the Vilnius Region granted the request lodged by the SBGS to order an alternative to detention and to place the applicant at the Foreigners’ Registration Centre in Pabradė (hereinafter “the Pabradė FRC”) without the right to leave it until 29 December 2022. The applicant lodged an appeal against that decision. She submitted that domestic law allowed detaining asylum seekers for no longer than 12 months and that in her case that period had already been exceeded. She further submitted that she was a minor and a victim of sexual violence and that she had been diagnosed with thyrotoxicosis.
On 3 November 2022 the Supreme Administrative Court dismissed the applicant’s appeal. It found that there was no indication that she might pose a risk to national security or public order. However, when she had previously been allowed to live in a place of her choice, she had attempted to leave Lithuania. Moreover, an age assessment had been carried out and it had determined that the applicant was older than 23 years of age. Accordingly, the court considered that, without restrictions on her freedom of movement, she might attempt to leave the country before her asylum claim was examined. It noted that the applicant had been recognised to be a vulnerable person and that she required constant psychological and social assistance. However, such assistance, as well as the necessary medical treatment, was being provided to her at the Pabradė FRC.
The applicant submits that the measure imposed on her, although considered as an alternative to detention under domestic law, in fact amounts to detention, in view of the nature and degree of the applicable restrictions. She submits that her detention has already exceeded the maximum duration of 12 months provided in domestic law with regard to asylum seekers and that the Lithuanian authorities failed to examine her asylum application during that time. She states that she attempted to leave Lithuania seeking effective asylum protection and medical assistance and should not be punished for that by arbitrary restrictions; she contends that her detention is arbitrary because it does not genuinely correspond to its stated purpose. Lastly, she submits that she is not provided with the necessary medical care in detention, that her health has worsened and that the authorities have failed to provide her with adequate protection having regard to her vulnerability. She raises those complaints under Article 5 of the Convention.
QUESTIONS TO THE PARTIES
1. Was the applicant deprived of her liberty, within the meaning of Article 5 § 1 of the Convention, during the period from 30 September to 29 December 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 her liberty:
(a) Was the deprivation of liberty “in accordance with a procedure prescribed by law”, as required under Article 5 § 1 of the Convention (see Saadi v. the United Kingdom [GC], no. 13229/03, § 67, ECHR 2008)? The Court refers, in particular, to the applicant’s submission that her deprivation of liberty exceeded the maximum duration provided in domestic law with regard to asylum seekers.
(b) Did the deprivation of liberty fall within any of the exceptions set out in sub-paragraphs (a) to (f) of Article 5 § 1 of the Convention? The Court refers, in particular, to the fact that during the period at issue the applicant had already been formally admitted to Lithuania (see, mutatis mutandis, Suso Musa v. Malta, no. 42337/12, § 97, 23 July 2013).
(c) When ordering the deprivation of liberty, did the domestic authorities have due regard to the applicant’s vulnerability, such as her age, her allegations of previous sexual abuse and her health (see Yoh-Ekale Mwanje v. Belgium, no. 10486/10, § 124, 20 December 2011; Thimothawes v. Belgium, no. 39061/11, § 79, 4 April 2017; M.H. and Others v. Croatia, nos. 15670/18 and 43115/18, §§ 236-37, 18 November 2021; and, mutatis mutandis, M.A. v. Italy, no. 70583/17, § 41, 31 August 2023)? In particular, the parties are asked to inform the Court how the applicant’s age was assessed and provide copies of any relevant documents.