In a recent ReLex case Supreme Administrative Court of Lithuania affirmed that when deciding on the restriction of a person’s freedom of movement courts must examine individually each case and must give reasons for its decision, taking into account precisely all the factual circumstances characterising those threats and the requirements of the legislation, inter alia, international obligations.
In the case A-3982-821/2022 the court was deciding the legality of detention of an asylum seeker. The foreigner has been recognised as a threat to public order or society in accordance with the Description of the Procedure for Verification of Data on the Foreigner to Determine Whether the Foreigner Poses a Threat to Public Order or Society, Preparation of a Conclusion on the Threat to Public Order or Society, and the Procedure for Consultation on the Issuance of a Visa, adopted by the Commissioner-General of the Lithuanian Police in 2015, Paragraph 12. (6), according to which an alien constitutes a threat to public order or society if it is established that a person has been searched in the Schengen Information System and/or the Interpol database of a foreign state as a suspect, accused or convicted of a criminal offence, or that alerts have been entered in the Interpol database indicating that the person has committed or may commit criminal offences, or an alert on a specific check of the person has been entered in the Schengen Information System. In the present case, an alert has been entered in the Interpol database for the foreigner, but the specific circumstances are not disclosed. The competent authorities of the State have also not provided any additional information in this respect. (Para 66).
The court held in its ruling of 11 November 2022 that notwithstanding the presumptive nature of the threat to public order or society posed by a person in the aforementioned legislation, the competent authority deciding on the restriction of a person’s freedom of movement must examine individually each of the documents to which the assessment of the threat to public order or society is related and must give reasons for its decision, taking into account precisely all the factual circumstances characterising those threats and the requirements of the legislation, inter alia, international obligations. This requires a comprehensive assessment of the circumstances of the case in question.
As regards the obligation to fully investigate the facts of the individual case and the prohibition of automatic adoption of an administrative decision, the court referred, mutatis mutandis, to CJEU jurisprudence in Case C-369/17 judgment of 13 September 2018, judgment of the Grand Chamber of the CJEU of 2 May 2018 in Joined Cases C-331/16 and C-366/16, judgment of the CJEU of 24 June 2015 in Case C-373/13, judgment of the CJEU of 22 September 2022 in Case C-159/21.
As noted by ReLex managing partner Rytis Satkauskas, representing client’s interests in this case, this also correlates to the recent CJEU case C-159/21, where it was established that the competent authority of an EU Member State cannot rely on the ground for exclusion laid down in Article 17(1)(b) of Directive 2011/95, which relates to the commission by the applicant for international protection of a ‘serious crime’, until that authority has undertaken, for each individual case, an assessment of the specific facts within its knowledge including seriousness of the crime in question requiring a full investigation into all the circumstances of the individual case concerned (judgment of 2 April 2020, Commission v Republic of Poland and Others (Temporary mechanism for the relocation of applicants for international protection), C‑715/17, C‑718/17 and C‑719/17, EU:C:2020:257, paragraph 154) (para 92).
In the said case before the Supreme Administrative Court of Lithuania, Chamber of Judges decided that the conclusion of the administrative authorities, that the foreigner is recognised as a threat to public order or society, cannot be considered to be essential and to exclude the possibility of applying to the foreigner an alternative measure to detention without restrictions on movement. It was noted, that the competent authorities of the State did not provide any additional evidence in this respect to substantiate that the alert issued in respect of the person concerned in the present case did not lead to an automatic assessment.
This case also relates with similar attempts to question Interpol notice elsewhere. A recent claim in US courts against Interpol was considered in case El Omari v. Interpol 2d Cir 2022. Here a plaintiff brought an action against Interpol, charging negligent infliction of emotional distress and violation of his right to due process of law , after Interpol refused to delete a so-called “red notice” identifying plaintiff as a convicted criminal in the United Arab Emirates (“UAE”). In this case The court granted Interpol’s motion to dismiss for lack of subject matter jurisdiction, holding that Interpol is a protected organization under the International Organizations Immunities Act (“IOIA”), 22 U.S.C. §§ 288-288l, and thus enjoys the same immunity from suit normally enjoyed by foreign sovereigns.