For better or for worse? Grand Chamber takes over cases concerning pushbacks at the Belarusian border

Maja Lysienia

For over three years now, crisis at the Belarusian border has been testing national authorities’ commitment to human rights. Since July 2021, Belarus has allowed for, facilitated or forced the irregular entry of third-country nationals to the EU. This new state conduct was quickly labelled as an “instrumentalization of migration”. Poland, Lithuania and Latvia responded with summary removals, denial of access to asylum and even the use of violence. In all three states, laws attempting to legitimize these practices were also adopted (see e.g. here, here and here).

There are over 30 cases “concerning the situation at the Belarusian borders from spring 2021 to summer 2023” pending before the ECtHR. The jurisdiction in three of them: C.O.C.G. and Others v. Lithuania (“C.O.C.G.”), R.A. and Others v. Poland (“R.A.”) and H.M.M. and Others v. Latvia (“H.M.M.”) was relinquished to the Grand Chamber. This article considers whether the upcoming judgments will bring a change in the Court’s jurisprudence and whether it will be for better or for worse from the standpoint of the protection of the third-country nationals’ rights, especially those arising from Article 3 ECHR and Article 4 of the Protocol no. 4.

Three pushback cases

C.O.C.G. concerns four Cuban nationals who irregularly entered Lithuania several times but were pushed back by the Lithuanian forces to Belarus – at gunpoint and in spite of the applicants’ pleadings for asylum and the ECtHR’s interim measure. While the applicants initially arrived at the Lithuanian border of their own will, upon the first pushback, Belarusian authorities forced them to irregularly cross the EU border again.

In H.M.M., twenty-six Iraqi nationals of Kurdish origin suffered repeated pushbacks at the Latvian-Belarusian border despite their attempts to seek asylum. Belarusian forces prevented them from returning to Minsk and pushed them back to Latvia. At some point, the applicants ended up being stranded at the border line for several days – prevented from moving by both Latvian and Belarusian forces.

R.A. pertains to the situation of thirty-two Afghan nationals who were not allowed to enter Poland by the Polish forces but were stopped from returning to Belarus by the Belarusian forces. In consequence, they had to live in the makeshift camp at the border for over 2 months. Their pleadings for asylum and the ECtHR’s interim measures were ignored by Polish authorities. Eventually, some of the applicants tried to enter Poland via the barbed wire fence but were apprehended and pushed back to Belarus.

The applicants’ complaints in these three cases are very similar. They all indicate that their rights guaranteed in Article 3 ECHR and Article 4 of the Protocol no. 4 have been violated by pushing them back to Belarus – which is not a safe third country – without examining their asylum applications. Moreover, they all claim that – due to the continued denial of entry – they were forced to live in harsh conditions in the woods growing at the Belarusian border, i.e. without a proper access to food, water, shelter, or medical assistance – in breach of Articles 2 and 3 ECHR.

Why the Grand Chamber?

Since the relinquishment of these three cases to the Grand Chamber, a question is being repeatedly asked why they were relinquished at all. Such a relinquishment happens in practice rarely, so it should be treated seriously.

According to Article 30 ECHR, there are two reasons to relinquish the Chamber’s jurisdiction directly to the Grand Chamber: when in the case at hand there is a serious question affecting the ECHR’s interpretation, or when the expected Court’s judgment may be inconsistent with its previous jurisprudence. Thus, when the jurisdiction is relinquished to the Grand Chamber under Article 30 ECHR, some important shift in the Court’s caselaw can be anticipated. What change C.O.C.G., H.M.M. and R.A. will bring? Both scenarios – “for better” and “for worse” human rights protection of third-country nationals – seem possible.

For better

The relinquishment of the case under Article 30 ECHR may lead to a rights-affirming jurisprudence (see e.g. Katz and Bosch March). For example, it happened in Hirsi and Others v. Italy which concerned the interception of the three vessels with migrants onboard by the Italian military ship and the applicants’ immediate transfer back to Libya. In 2012, this scenario was a novelty for the ECtHR, and the Court responded by strongly condemning this pushback practice employed at the high seas.

In the context of the pushbacks at the land borders, it would be the most desirable for the Grand Chamber to reverse N.D. and N.T. v. Spain (“N.D. and N.T.”). In this controversial case, concerning the interpretation of Article 4 of the Protocol no. 4, the Grand Chamber introduced a “genuine and effective access to means of legal entry” test and concluded that third-country nationals not using legal pathways of entry despite having such a possibility are acting culpably and can be faulted for being collectively expulsed. This ruling has been widely – and rightly – criticized (inter alia on this blog by Hakiki and Wissing, and elsewhere by Thym, Markard and Bratanova van Harten). However, it seems unlikely for the Court to fully withdraw from the interpretation of Article 4 of the Protocol no. 4 provided for in this judgment. In the following rulings (e.g. A.A. and Others v. North Macedonia, Shahzad v. Hungary or M.H. and Others v. Croatia), the N.D. and N.T. test was applied firmly and broadly to all irregular entrants.

While the full reversal of the N.D. and N.T. test seems improbable, C.O.C.G., H.M.M. and R.A. give the ECtHR the opportunity to adapt it to the novel circumstances of these cases. Firstly, the Grand Chamber may conclude that the applicants’ behaviour is not a culpable conduct mentioned in N.D. and N.T. because some of the applicants’ irregular entries to these countries were forced by the Belarusian authorities – directly by threats and violence, or indirectly by denying a possibility to leave the border area. Lithuania, Latvia and Poland were fully aware of the Belarusian forces’ actions, but continuously denied access to their territory. The applicants were then – against their will – engaged into a politically-motivated “inhumane ‘ping-pong game’” between the EU Member States on the one side and Belarus on the other.  In those circumstances, the lack of an individual expulsion decision should not be attributed to “the applicant’s own conduct” (N.D. and N.T., §200) but rather to the political decisions of the states involved.

Second, even if the Court will consider the applicants’ conduct to be (partly) culpable, it should determine that they had no genuine and effective access to means of legal entry. In all three states, in response to the actions of Belarus but also before the crisis, access to asylum (and consequently to the state’s territory) was significantly limited, if not made non-existent, both in law and in practice (see e.g. here, here and here).

Lastly, the Grand Chamber may at least infer that there were cogent reasons not to use the legal pathways of entry because the applicants were prevented from leaving the border area or forced to cross the EU border irregularly by the Belarusian forces. However, the latter would require adapting the conditions for the cogent reasons to be established to new – and unpredictable in 2020 – circumstances of the crisis at the Belarusian border.

With respect to Article 3 ECHR, the Grand Chamber can confirm that the absolute nature of the protection arising from this provision applies irrespective of the manner of entry to the country. In Sherov and Others v. Poland (§48), concerning denying entry to asylum seekers at the official border checkpoint, the court stated clearly that “in order to fulfil their procedural obligations under Article 3 of the Convention the Polish authorities should either have allowed the applicants to remain in Polish territory pending the examination of their asylum application or, before sending them back to Ukraine, they should have examined whether that State was safe for the applicants and whether they would have access to an adequate asylum procedure there”. A similar conclusion was reached in D v. Bulgaria concerning an irregular entry.

In the cases at hand, Lithuania, Latvia and Poland not only ignored the applicants’ pleadings for asylum, but also did not examine whether Belarus was safe for them and whether it offered access to adequate asylum proceedings. The lack of such an examination, in itself, constitutes a violation of Article 3 ECHR. However, in the circumstances of the discussed three pushback cases this conclusion is supported by many reports documenting the ill-treatment of third-country nationals in Belarus (see e.g. here, here and here) and the defectiveness of the Belarusian asylum system (e.g. M.K. and Others v. Poland and here).

The Grand Chamber can also push the states to undertake necessary measures to protect the life and limb of migrants crossing borders – even those entering their territory irregularly. In all three cases, the applicants allege that – due to the actions of Poland, Latvia and Lithuania on the one side and Belarus on the other – they were stranded at the Belarusian border in inhuman and degrading conditions, risking their life. As I explained elsewhere, in this regard, the Court can be tempted to focus only on Article 3 ECHR. However, while the applicants in C.O.C.G., H.M.M. and R.A. survived, many other migrants died at the Belarusian border (according to the recent report, over 140 persons). It shows that the risk of losing life by the applicants was real. As reaffirmed recently in Daraibou v. Croatia (§86), “Article 2 of the Convention may come into play even if a person whose right to life was allegedly breached did not die”. The Grand Chamber’s judgment confirming that states should not – in the context of the border management as in any other –  take actions that put migrant’s life at risk, even if an applicant eventually lived, would be a truly welcomed, rights-affirming addition to the ECtHR’s jurisprudence on border deaths (at the land borders, M.H. and Others v. Croatia and Alhowais v. Hungary).   

For worse

The upcoming Grand Chamber’s rulings could also bring about a restrictive interpretation. In the recent years, many Grand Chamber judgments were not quite favorable for asylum seekers and migrants (e.g. Savran v. Denmark, M.N. and Others v. Belgium, N.D. and N.T., and Ilias and Ahmed v. Hungary). Thus, the “for worse” scenario cannot be excluded.

The Grand Chamber may decide to interpret the N.D. and N.T. test even more restrictively than hitherto. It may choose to ignore the fact that some of the applicants’ entries to Poland, Latvia and Lithuania were forced – directly or indirectly – by Belarus and entirely fault the applicants for these irregular entries. It may also set a very high threshold for showing that the applicants had no means of legal entry or cogent reasons not to use them. As regards the latter, as recently noticed by Bosch March (and similarly here), the Grand Chamber may also conclude that Lithuania, Poland and Latvia were not “’directly responsible’ for the lack of use of the means of legal entry into its territory” because the applicants were forced to cross that border irregularly by the Belarusian forces. Thus, essentially, the Belarusians should be held accountable for the human rights violations at the Belarusian-EU border. However, Belarus is not a party to the ECHR. More importantly, Poland, Latvia and Lithuania should not avoid their responsibility only due to the involvement of the other state in the human rights violations. They should be held accountable for their own response to the Belarusians’ actions.

The applicants may also face some difficulties in proving that they asked for asylum at the border. As noticed by Baranowska, states tend to argue that no asylum claims were voiced at the border and the ECtHR regularly requires from the applicants “more than prima facie evidence” in the border cases. For example, in M.A. and Others v. Lithuania (“M.A.”), the Court found Article 3 ECHR violated relying on the extensive evidence: official documents, photos and reliable reports. In M.K. and Others v. Poland (“M.K.”), a similar abundance of evidence was also pertinent to finding that Article 4 of the Protocol no. 4 was breached. Meanwhile, in M.A. and Others v. Latvia (“M.A.”), concerning the same applicants as in the two abovementioned cases, the lack of evidence showing that they had asked for asylum at the Latvian border was decisive for considering the application manifestly ill‑founded. 

The Grand Chamber may be attracted to the idea of relying on these three rulings in the upcoming judgments. However, it must be noted that the factual circumstances of these cases are much different. M.A., M.K., and M.A. concern the decisions on a refusal of entry issued at the official border crossings. C.O.C.G., H.M.M. and R.A. pertain to the crisis at the Belarusian border where irregular entries were often not registered, no decisions were issued, and asylum applications were ignored (also in accordance with national law). Moreover, documents and phones of the persons crossing the Belarusian border were regularly destroyed or taken away. In those circumstances, asking for similar proofs as in M.A., M.K. and M.A. may be asking for the impossible. Prima facie evidence should be considered enough (as stated in e.g. M.H. and Others v. Croatia, §268).

Lastly, Poland, Lithuania and Latvia may argue before the ECtHR that the “hybrid war” started by Belarus created security threats that justified the three states’ actions. However, none of these EU Member States used a possibility provided for in Article 15 ECHR to derogate from their obligations. Moreover, the derogation is not allowed as regards Article 3 ECHR. The ECtHR is adamant in confirming the absolute character of the latter provision even in the most difficult circumstances, but the “national security” argument can be taken into account by the Grand Chamber under Article 4 of the Protocol no. 4. It already played a role in the N.D. and N.T. ruling where creating “a clearly disruptive situation which is difficult to control and endangers public safety” was considered of importance in the assessment of the “applicant’s own conduct” (§201). However, in contrast to N.D. and N.T., the applicants in C.O.C.G., H.M.M. and R.A. were engaged in the events at the border to some extent against their will and they have strong claims that their rights guaranteed in Article 3 ECHR were violated. Meanwhile, “Article 4 of Protocol No. 4, (…) is aimed at maintaining the possibility, (…) to assert a risk of treatment which is incompatible with the Convention – and in particular with Article 3” (N.D. and N.T., §198).

Hopeful conclusion

Considering the recent Grand Chamber’s judgments, especially N.D. and N.T., it may seem overly optimistic to hope for the rights-affirming judgments in C.O.C.G., H.M.M. and R.A. However, there are some reasons to remain positive.

First, the crisis at the Belarusian border has been particularly well researched and documented by domestic human rights institutions, reputable national and international NGOs, as well as regional and international bodies. Accordingly, pushback practices and inhuman treatment of third-country nationals crossing the Lithuanian, Latvian and Polish border are a well-known fact that is confirmed in multiple credible reports. They should be duly considered by the Court.

Second, the Lithuanian, Latvian and Polish response to the crisis at the Belarusian border has been overwhelmingly assessed as violating human rights, including the ECHR, on a national (e.g. an unanimous judicial response in Poland), European (e.g. CJEU’s judgment in case C‑72/22 PPU concerning Lithuania, the most recent CPT’s reports on Poland and Latvia) and international level (e.g. UN Special Rapporteur on Human Rights of Migrants, UN High Commissioner for Human Rights). Finding no violation of Article 3 ECHR and Article 4 of the Protocol no. 4 in C.O.C.G., H.M.M. and R.A. would be in direct conflict with these judgments and reports.

Third, the rights-affirming interpretation of the Convention, in the context of the border management in general and the crisis at the Belarusian border in particular, is possible. The “for better” scenario can easily be based on the well-established jurisprudence of the Court – even on the controversial N.D. and N.T. 

Lastly, if the Court opts for the “for worse” scenario in C.O.C.G., H.M.M. and R.A., in practice it will only give a push for states to engage even more in pushback practices. Meanwhile, the Council of Europe (CoE) increasingly calls for the halt of pushbacks at the European borders (see here, here and here). The Grand Chamber should corroborate the CoE’s consistent approach rather than give states more arguments supporting their deterrence strategies.

C.O.C.G., H.M.M. and R.A. will be an important test for the Court. It can pass it with flying colors by clearly and firmly showing that human rights of third-country nationals must be protected also at the European borders. Only time will tell whether the ECtHR will take this chance to advance human rights protection of asylum seekers and migrants coming to Europe.

Acknowledgements

The author is grateful for the helpful critical engagement to Aleksandra Ancite-Jepifánova and other reviewers of this paper. This research was supported by the nccr – on the move funded by the Swiss National Science Foundation grant 51NF40-205605.