ECtHR - M.A. and Others v. Lithuania (no. 59793/17), 11 December 2018

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Country of Applicant: 
Russia
Date of Decision: 
11-12-2018
Citation: 
M.A. and Others v. Lithuania (no. 59793/17), 11 December 2018
Court Name: 
European Court of Human Rights (Fourth Section)
Headnote: 

The ECtHR ruled that failure to allow a Russian family with five children to submit asylum applications on the Lithuanian border and their removal to Belarus amounted to a violation of Article 3 ECHR. 

Facts: 

This case concerns M.A, his partner and their children, who are all Russian nationals. The applicant claimed that whilst living in the Chechen Republic, he was tortured by the Russian security services after refusing to become an informer. Therefore, in April 2017 the applicants left their home in the Chechen Republic and travelled to Belarus with the intention of seeking asylum in Poland.  

On 16 April 2017, the family first tried to cross the border between Lithuania and Belarus. Their entry was refused on grounds that they did not have valid visas or residence permits, although they claimed that they had told the border guards in Russian that they were seeking asylum. They also wrote the word “azul’” that is often used by Chechen asylum seekers to mean “asylum” on the refusal decisions.

On 11 May 2017, the applicant again tried to cross the border between Lithuania and Belarus. They again claimed to have told guards that they were seeking international protection and asylum and that the first applicant had been tortured in Chechnya. However, asylum proceedings were not initiated. They were again refused entry on the same basis as before.

On 22 May 2017, the applicants arrived at the railway border checkpoint in Vilnius. Here they gave the border guards a written asylum application in Russian, prepared by a Belarussian human rights organisation. However, again the applicants were refused entry and asylum proceedings were not initiated.

On all three occasions, the decisions for refusal of entry were given in Lithuanian or English, languages that the applicants did not understand. The applicants did not appeal against any of the three refusal of entry decisions.

The family’s legal stay in Belarus expired on 10 July 2017 and they returned to Russia. Soon after their return, the first applicant was detained, and reported to have been beaten.

 In January 2018, the second applicant and the children managed to submit asylum applications in Poland and were admitted to a refugee reception centre. Following his release, the first applicant joined his partner and children in the centre after submitting his own asylum application in March 2018.

The applicants submitted that by failing to initiate asylum proceedings and returning them to Belarus, the Lithuanian authorities exposed them to a real risk of torture or inhuman treatment in Russia, in violation of Article 3. In addition, the applicants complained that they had not had an effective remedy against the decisions refusing them entry into Lithuania, in violation of Article 13.

Decision & Reasoning: 

With regard to the applicants’ complaint under Article 3, the Court began by reiterating that although contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens, the expulsion of an alien may give rise to an issue under Article 3.

In the circumstances of this case, the central question to be answered is not whether the applicants faced a real risk of ill-treatment in Chechnya, but whether the Lithuanian authorities carried out an adequate assessment of the applicants’ claim that they would be at such a risk before returning them to Belarus on the three occasions.

The government and the applicants disagreed on whether the applicants had actually submitted asylum applications at the border. Here, the Court notes that on all three occasions, the applicants did not attempt to hide the fact that they did not have visas or other documents giving them the right to enter into Lithuania, behaviour consistent with their claim that the purpose of their presence at the border was to claim asylum.  

Further, during their first attempt to enter Lithuaina, the applicants had written the word “azul”, meaning asylum, on all seven decision forms which they had been given to sign. The Court reiterated that neither Lithuanian nor international law required asylum applications to be lodged in a specific form and emphasised the importance of ensuring adequate interpretation for asylum-seekers at the border.

The Court also noted that the UNHCR has previously commented that it has some concerns regarding access to the territory and asylum procedure in Lithuania, which is consistent with the applicants’ claims.

The Court was satisfied that  the applicants did submit asylum applications but the Lithuanian border guards did not accept and forward these applications for examination and status determination, as required by domestic law . Furthermore, the Court found that there was not any assessment at all of whether it was safe to return the applicants (a family with five very young children) to Belarus. Belarus is not a Contracting Party to the European Convention on Human Rights and, according to publicly available information, cannot be assumed to be a safe third country for Chechen asylum seekers.

Therefore, the Court held that the failure to allow the applicants to submit asylum applications and their removal to Belarus on 16 April, 11 May and 22 May 2017, in the absence of any examination of their claim that they would face a real risk of return to Chechnya and ill‑treatment there, amounted to a violation of Article 3 of the Convention.

Concerning the complaint under article 13, the applicants complained that they had not had an effective remedy against the decisions refusing them entry into Lithuania.

The applicants had not appealed against the decisions refusing them entry to Lithuania. However, the Court found that, whether successful or not, an appeal would not have had automatic suspensive effect, meaning that it would not have prevented their return to Belarus pending the result of their appeal. Therefore, in line with the Court’s established case-law, such an appeal could not be considered an effective remedy.

Outcome: 

Application granted (violation of Articles 3 and 13).

The Court also held that Lithuania was to pay the applicants, collectively, 22,000 euros (EUR) in respect of non-pecuniary damage.

Observations/Comments: 

(CONCURRING OPINION OF JUDGE PINTO DE ALBUQUERQUE

In his concurring opinion, Judge Albuquerque expands on the respondent State’s exercise of jurisdiction at its land borders and its obligation to protect the Convention rights of those asylum-seekers who come under its jurisdiction, and, in particular, asylum-seekers’ right of access to the international protection procedure.

 

Other sources cited: 

Babajanov v. Turkey, no. 49867/08, 10 May 2016

Amerkhanov v. Turkey, no. 16026/12, 5 June 2018

Batyrkhairov v. Turkey, no. 69929/12, 5 June 2018

M.O. v. Switzerland, no. 41282/16, 20 June 2017

Regulation (EU) 2016/399 (“the Schengen Border Code”) Articles: 3; 4; 14; 16 

Authentic Language: 
English
State Party: 
Lithuania