Pending ECHR rulings on legality of pushbacks policy in Lithuania, Latvia and Poland at the border with Belarus, the Supreme Administrative Court of Lithuania affirmed in case No eA-820-552/2025 the right to seek international protection and confirmed the right to redress. The burden of proof shifted to the border authorities.
In his claim, supported by Human Rights Monitoring Institute and Sienos Grupė applicant claimed non-pecuniary damage primarily caused by refusal to enter the territory of the Republic of Lithuania and his return to Belarus on 23 October 2023. On that day he and a group of people were stopped by border officials in the territory of the Republic of Lithuania and pushed back into Belarusian territory. The border representatives explained that they noticed fourteen persons, including the applicant, who had cut through a physical barrier and crossed the state border from the Republic of Belarus into the territory of the Republic of Lithuania at a place not designated for that purpose. As there were no signs indicating that the applicant needed urgent medical assistance, he was provided with water, food, warm clothes, footwear, and hygiene products, but he was not allowed to enter the territory of the Republic of Lithuania. The applicant claimed that, in contested decision, the court of first instance failed to take into account the fact that his suffering was directly related to the unlawful actions of officials in forcibly returning him to the Republic of Belarus without assessing the weather conditions and widely known cases of abuse by Belarusian border guards (see the ECtHR judgment of 4 April 2024 in the case of Sherov and Others v. Poland (application No. 54029/17)), nor did it take into account the case law of the Court of Justice of the European Union (hereinafter also referred to as the CJEU) (see ECJ judgment of 25 June 2020 in Case C-36/20 PPU). The applicant underlined that he was forcibly turned back four times by Lithuanian officials and the court’s contested decision does not dispute the injuries he suffered on the border between Lithuania and the Republic of Belarus, therefore, there is no dispute that on 23 October 2023, the officials improperly assessed the applicant’s individual need for assistance, as the applicant had serious health problems, which is evidenced by the fact that he was hospitalized the very next day. In the applicant’s opinion, by refusing to grant him the opportunity to seek asylum in the territory of the Republic of Lithuania and by directing the applicant to a life-threatening natural conditions, the officials violated his rights under Article 18 of the Charter of Fundamental Rights of the European Union, the provisions of the Asylum Procedures Directive 2013/32 and the ECHR.
In this game changing decision the panel of judges acknowledges that the applicant is the weaker party in the dispute, therefore all ambiguities should be interpreted in his favor, including the question of evidence regarding his factual request for international protection (62). By reference (63) to the CJEU judgments of 29 May 2024 in Case C-392/22, 14 May 2020 C-924/19 and C-925/19 as well as of 22 June 2023, C-823/21, the Supreme Court established that border officers acted unlawfully by forcibly removing the applicant from the territory of the Republic of Lithuania and failing to give him a real opportunity to submit an asylum application (64).
The Court further established (67) that when the applicant was admitted to the medical facility on 26 October 2023, frostbite of the feet and ankles was diagnosed, therefore it must be acknowledged that the applicant suffered damage to his health, physical pain, and negative experiences. Although the applicant himself is partly to blame for these consequences, having chosen to enter the territory of the European Union illegally during the cold season, as well as the officials of the neighboring authoritarian state, who also forcibly ordered him to attempt to cross the border many times and did not allow him to return to his place of residence, the actions of the border officers, who forcefuly removed the applicant from the territory of the Republic of Lithuania on 23 October 2023, forcing him to endure the cold in the forest for several more days, also contributed to some extent to the increase in this damage.
The Court considered (68) that in the case under review, all conditions for public liability have been proven – unlawful actions, non-pecuniary damage, and a causal link between the actions and the damage – and therefore the question of how the damage suffered should be compensated must be decided. It was established however that (69) there is no evidence in the case that the violation found caused the applicant negative legal consequences that could be considered non-pecuniary damage within the meaning of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The violation of the applicant’s rights that has been established cannot be regarded as having objectively caused negative consequences (suffering, etc.) of such a degree that they could be compensated by monetary satisfaction.
By relying on international law the Court set aside the provisions on Lithuanian law on legal status of foreigners and overturned the prevalent „instrumentalisation“ narative claiming that the Lithuanian national legal regulations followed by the border officers are designed to protect the interests and national security of the Lithuanian state from the instrumentalised migration carried out by the Belarusian ruling regime, which is not related to the persecution of foreigners deliberately pushed into Lithuania by Belarusian border guards.
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