In 2021, Lithuania declared a state-level emergency due to the massive influx of irregular migrants crossing the Belarusian border. Initially framed as a temporary and necessary response to an unprecedented migration crisis, the emergency regime remains in force nearly five years later. This raises an important legal and constitutional question: is the continued application of the emergency regime still based on necessity, or has it evolved into a broad instrument of administrative discretion? ReLex lawyer Emilija Švobaitė takes a closer look in her second commentary for Teise.Pro.
Emergency Measures: Temporary Exception or Permanent Governance Tool?
Under Lithuanian constitutional principles, extraordinary legal regimes are intended to be temporary, proportionate, and linked to a clearly identifiable threat. However, practice has demonstrated how emergency frameworks may gradually become long-term governance mechanisms without sufficiently defined review standards.
As analyzed by Emilija Švobaitė, Lithuanian legislation does not establish clear periodic review obligations or objective criteria for terminating a state-level emergency once the initial threat subsides. While the legal framework formally requires that the threat continue to exist, the practical threshold for maintaining the emergency has become increasingly abstract.
By 2024, none of the previously established quantitative indicators of a “mass influx” of migrants were met. Nevertheless, the emergency regime remained in place based on a qualitative assessment — namely, the assumption that neighboring states could continue organizing irregular migration flows against Lithuania. Such reasoning creates the possibility of maintaining emergency powers indefinitely, even in the absence of objectively measurable conditions.
Human Rights Concerns During Crisis Management
The migration crisis prompted several legal and administrative measures that significantly affected the rights of asylum seekers and migrants. These included restrictions on access to asylum procedures, border pushbacks, expanded detention practices, and limitations on procedural safeguards.
In Case C-72/22 PPU, the Court of Justice of the European Union (CJEU) concluded that the Lithuanian government failed to sufficiently demonstrate how certain restrictions genuinely contributed to the protection of public order or national security. The Court reiterated that general references to security concerns cannot automatically justify departures from EU law and fundamental rights standards.
Particular criticism has also been directed at Lithuania’s detention practices. Although national legislation referred to the measure as “accommodation without the right to freely move,” both the Lithuanian Constitutional Court and the CJEU emphasized that such restrictions may effectively amount to detention in substance, regardless of terminology.
Beyond Migration: A Rule of Law Debate
The broader issue extends beyond migration policy itself. At its core, the debate concerns the limits of executive power during times of crisis and the safeguards necessary in a democratic legal order. Many recently communicated ECtHR cases, including M.H. v. Lithuania (31050/22), C.O.C.G. and others v. Lithuania (17764/22), K.A. v. Lithuania (39943/22), S.M.H. v. Lithuania (27915/22), A.S. and others v. Lithuania (44205/21), T.M.N. v. Lithuania (957/23), D.I. and others v. Lithuania (Peticijos Nr. 27534/23), bring up this issue and many more await the clarification from the Court.
The Lithuanian Constitutional Court has consistently held that restrictions on fundamental rights must be established by law and comply with the principle of proportionality. However, when such restrictions are tied to a prolonged and potentially indefinite emergency regime, concerns arise regarding the balance between executive discretion and democratic oversight.
The EU Migration Pact May Reshape National Emergency Practices
The EU Migration and Asylum Pact, expected to become fully applicable in 2026, introduces a new “crisis regulation” framework that may significantly limit unilateral emergency measures adopted by member states.
Under the new system, derogations from standard asylum procedures will require stronger involvement from EU institutions, including oversight by the European Commission and the Council of the European Union. Crisis measures will need to meet clearly defined legal conditions and temporal limitations.
As a result, Lithuania may soon face increasing pressure to reassess its current model of prolonged emergency governance in the field of migration.
Conclusion
Crises require swift and effective state action. Yet in a rule-of-law system, extraordinary powers cannot become a permanent governance model. The prolonged application of emergency regimes without clearly defined review mechanisms risks transforming exceptional measures into ordinary administrative practice.
The Lithuanian migration emergency illustrates a broader challenge faced across Europe: how to balance national security, migration management, and the protection of constitutional rights without allowing emergency governance to erode democratic legal safeguards.
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