ECHR judgment of December 11, 2018 in the case of “M.A. and others (M.A. and Others) against Lithuania” (application No. 59793/17).
In 2017, complainants were assisted in preparing a application. Subsequently, the application was communicated to Lithuania.
The case has successfully considered the application of the applicants against the refusal of the border authorities to accept asylum applications. The case has violated articles 3 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
The applicants in the case were a family of seven citizens of the Russian Federation who had previously lived in the Chechen Republic. The applicants complained to the European Court that between April and May 2007, they tried to apply for asylum three times, but each time the Lithuanian border authorities refused to accept these requests and returned the applicants to the Republic of Belarus. Subsequently, the applicants were able to apply for asylum, and they were admitted to the refugee reception center in Poland to wait there for a decision.
QUESTIONS OF RIGHT
Regarding compliance with Article 3 of the Convention. The applicants claimed that they were threatened with torture on the territory of the Chechen Republic and that the Republic of Belarus cannot be considered a safe third country. The main disagreement between the parties was whether the fact of asylum applications for asylum had actually occurred at the border. In each of the three cases when the applicants applied to the border guards, they presented identity documents and did not try to hide the fact that they did not have visas or other documents giving them the right to enter Lithuania. The behavior of the applicants was consistent with their claim that the purpose of their arrival at the Lithuanian border was to apply for asylum.
(a) The first attempt made on April 16, 2017. The applicants claimed that they had first expressed a desire to receive protection from the border guards verbally. This argument was disputed by the Lithuanian authorities. At the same time, it was not disputed that the claimants wrote the word “azul” in Cyrillic (a word commonly used to refer to asylum), often used by Chechen applicants requesting political asylum to refer to “asylum” on the spot to sign on each of the seven decisions that they were denied entry to Lithuania. The corresponding checkpoint was located on the border with the Republic of Belarus, where Russian is one of the official languages. Even assuming that none of the border guards at the checkpoint spoke Russian, the European Court cannot agree with the argument of the Lithuanian authorities that the applicants “did not in any way express their desire for asylum”, since to understand the oral petitions of the applicants in Russian. The word “azul”, which was contained in seven decisions on the refusal of applicants to enter Lithuania, should have served as a sufficient indication to the border guards that the applicants had applied for asylum.
(b) The second attempt, made on May 22, 2017, the applicants submitted to the European Court a copy of the written application for asylum and a photo of it together with train tickets from Minsk to Vilnius. The complainants claimed that the photo was taken at the border checkpoint and that the request was submitted to the border guards. The authorities did not dispute the fact of the authenticity of the asylum application or photograph, as well as the applicants' allegation that this photo was taken at the border checkpoint. In such circumstances, there were no grounds to doubt the applicants' claim that on May 22, 2017 they had filed a written application for asylum at the Vilnius railway border checkpoint.
(c) The third attempt made on May 11, 2017. In the present case, the European Court did not have direct evidence that the applicants had requested asylum. The applicants insisted that they did it verbally, and the authorities contested that statement. The Lithuanian authorities also indicated that the applicants had not written the word “azul” or any similar word on the decisions to refuse them entry. In the opinion of the European Court, the applicants cannot be reproached for failing to submit in writing their asylum applications for decisions to refuse their entry, since the applications were submitted in writing, but were left without consideration. The European Court also noted that the information provided by the applicants, such as the date and time of their arrival at the border checkpoint, was consistent with the data contained in the official reports of the border guards, and the arguments of the applicants who tried to apply for asylum at this checkpoint paragraph, were similar to their arguments in two other attempts, which the European Court on the basis of the available documents found to be credible. In such circumstances, the Court also accepted as credible the applicants' statement that on 11 May 2017 they verbally informed the border guards at the checkpoint about the need to provide them with asylum.
Accordingly, the European Court acknowledged that the applicants had applied for asylum orally or in writing while on the border of Lithuania on April 16, 11 and 22 May 2017. However, the border guards did not accept these petitions and did not send them to the competent authority. checking and resolving the issue of their status, as required by Lithuanian law. In addition, in none of the three cases in the reports of the border guards sent to their senior officers did not mention the applicants' desire to seek asylum, the use of the word "azul" in the decisions, or the written application for asylum. Neither these reports nor any other documents submitted to the European Court contained any indication that the border guards tried to find out the reason for the applicants' arrival at the border without valid travel documents if they did not submit asylum applications. It does not appear that any assessment was made as to whether it was safe to return the applicants (seven with five minor children) to the Republic of Belarus, which is not a party to the Convention, and according to publicly available information it cannot be assumed that it is “safe third country "for those who arrived from the Chechen Republic and applied for political asylum.
As a result, the applicants were returned to the Republic of Belarus without a proper assessment of their asylum applications. Consequently, it was obvious that measures that, according to the Lithuanian authorities, constituted adequate safeguards against the arbitrary expulsion of persons who applied for political asylum, such as the supervision of border guards by higher-level officers or the monitoring of borders by non-governmental organizations, were not effective in the applicants case.
In the case of a violation of the requirements of Article 3 of the Convention (it was adopted by four votes "for" with three - "against").
The European Court also ruled by four votes in favor, with three votes against, that there had been a violation of Article 13 of the Convention, since the appeal to the administrative court of the refusal of entry was not an effective domestic remedy within the meaning of the Convention.
In application of Article 41 of the Convention. The Court awarded the applicants jointly EUR 22,000 in respect of non-pecuniary damage, the claim for pecuniary damage was rejected.