The newly published monitoring report by Lithuanian Red Cross on application of the Dublin Regulation notes a consistent court practice imposing limitations on liberty of asylum seekers who moved to another EU Member State seeking efficient asylum procedures but were returned to Lithuania. Such practices may amount to arbitrary detention in violation of the right to liberty and security established by Article 5 of the ECHR.
The latest ECtHR application T.M.N. against Lithuania 957/23, communicated to the Government on 6 February 2024, questions the legality of deprivation of liberty of an asylum seeker who after 12 months detention for the purposes of processing her asylum application and without final decision taken to this regard by then attempted to seek justice in another European country. She was apprehended, sentenced and after having served the sentence detained for another 3 months in foreigners registration center. She has been recognised as a victim of sexual violence, minor and diagnosed with an autoimmune illness. None of these individual aspects were taken into consideration by the national administrative and judicial authorities. We appreciate the support of Human Rights Monitoring Institute in bringing this case to the court.
If the one and only reason to restrict someone’s freedom is the intention to preventively restrain the person from moving to another country or punishing him for such intention without a due process, such restriction would fall under the definition of arbitrary detention. In legal terms the arbitrariness arise where the order to detain and the execution of the detention did not genuinely conform to the purpose of the restrictions permitted by the relevant sub-paragraph of Article 5 § 1 of the ECHR.
The amended provision of Article 140-8 of the Law on the Legal Status of Foreigners establishes clear obligation to take into consideration vulnerability of the foreigner when deciding upon detention in the context of migration procedures. Strict time limits for such detention are imposed. Every person, whose freedom has been limited without legal basis has a direct and enforceable right to compensation before the national courts (Article 5 § 5).
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