M.A. AND OTHERS v. LATVIA

 
 
 
Communicated on 10 May 2019
 
FIFTH SECTION
Application no. 25564/18
M.A. and Others
against Latvia
lodged on 23 May 2018
STATEMENT OF FACTS
A.  The circumstances of the case
1.  The facts of the case, as submitted by the applicants, may be summarised as follows.
2.  The first applicant was born in 1988 and the second applicant was born in 1994. The other five applicants, their children, were born between 2010 and 2016. The applicants are Russian nationals. According to the latest information received, they are currently staying in Poland, where their asylum applications are under consideration.
3.  The applicants previously lived in the Chechen Republic. The events leading to their departure to Belarus and their attempts to enter Poland and Lithuania are described in M.A. and Others v. Lithuania (no. 59793/17, §§ 7-23, 11 December 2018) and in M.A. and Others v. Poland (no. 42902/17, §§ 1-15, communicated on 3 August 2017, Statement of Facts).
4.  On 24 November 2017 the applicants reached the Latvian border crossing point “Indra” by train as part of a group of approximately 27 asylum seekers. The second applicant was four months pregnant at the time. When officers of the State Border Guard Service (Valsts roberžsardze) boarded the train the applicants asked them for asylum indicating that they could no longer stay in Belarus and that the first applicant was sought by the authorities in Chechnya. They also submitted a written asylum request.
5.  The applicants were taken to a building at the border crossing point where they were held for four hours. While there, they informed a State Border Guard Service officer of their unsuccessful attempts to apply for asylum elsewhere, and emphasised that they were seeking asylum, that they could not go back to Belarus due to the risk of deportation to Russia, and that they feared Belarussian police.
6.  After about four hours the applicants were told that they had been denied entry to Latvia. Their passports were stamped indicating that the entry had been denied due to the absence of a valid visa or another document permitting entry. The applicants were asked to sign a document reiterating the same reason for the denial of entry. The applicants refused to sign that document due to its failure to address their application for international protection. The applicants were not served with a copy of that document. After that, the applicants were taken to Belarus. The other asylum seekers, with whom the applicants had travelled, were also returned to Belarus.
7.  For subsequent developments see M.A. and Others v. Lithuania (cited above, §§ 24-26).
B.  Relevant domestic law
8.  Section 3(1) of the Asylum Law, read in conjunction with sections 37(1) and 40(1) of that Law, provides that an asylum seeker cannot be expelled or extradited to a country where he justly fears persecution on the grounds of race, religion, national or social origin or political views or where he may be subjected to grave harm.
9.  Section 6 of the Asylum Law provides that the application for asylum can be made orally or in writing. It should be made in person with the State Border Guard Service. When the desire to acquire asylum is expressed orally, the State Border Guard Service puts it in writing in the presence of the asylum seeker. When there are indications that a person who presents himself at the border crossing point may wish to seek asylum (for example, he expresses fear of returning to the country of origin), the State Border Guard Service shall provide the possibility to submit such an application.
10.  Section 20 of the Immigration Law provides that a refusal to enter Latvia can be challenged within 30 days and subsequently appealed against before the Administrative Regional Court, which takes the final decision. The appeal against the refusal of entry does not have a suspensive effect.
COMPLAINTS
1.  The applicants complain under Article 3 of the Convention that by returning them to Belarus without reviewing their claims the authorities exposed: (i) the first applicant to a chain of refoulement from Belarus to Russia where he was subsequently tortured while the other applicants sustained uncertainty, anguish and distress, and (ii) the remaining applicants to degrading living conditions in Belarus.
2.  The applicants complain under Article 4 of Protocol No. 4 that they were expelled together with approximately 20 other foreigners and their situation was not reviewed on an individual and genuine basis.
3.  Under Article 13 of the Convention, in conjunction with Article 3 of the Convention and Article 4 of Protocol No. 4, the applicants complain that they did not have an effective remedy against the decisions refusing them entry into Latvia, as an appeal against those decisions would not have suspended their enforcement.
QUESTIONS TO THE PARTIES
1.1.  Having regard to the procedural protection from torture or inhuman or degrading treatment or punishment, was the authorities’ refusal to accept the applicants’ asylum requests and initiate asylum proceedings on 24 November 2017 in breach of Article 3 of the Convention? In particular, before deciding on their return, did the Latvian authorities examine the applicant’s fears and assess the risks they would face if returned to Belarus (see M.A. and Others v. Lithuania, no. 59793/17, §§ 102-115, 11 December 2018; see also Paposhvili v. Belgium [GC], no. 41738/10, §§ 184-85, 13 December 2016; and Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, §§ 146-47, ECHR 2012).
 
1.2.  What safeguards are in place to ensure that asylum applications submitted at the Latvian border are properly registered and transferred to the competent authorities for examination, as required by domestic law?
 
1.3.  In the light of the information provided by the applicants, was there a risk that they would be subjected to treatment in breach of Article 3 of the Convention if they were to be returned to Belarus? Was there such a risk if they were to be further returned to Russia (see M.A. and Others v. Lithuania, cited above, §§ 64-65 and 113, and I.K. v. Austria, no. 2964/12, §§ 34-55, 28 March 2013)?
 
2.  Were the applicants, aliens in the respondent State, expelled collectively, in breach of Article 4 of Protocol No. 4? Reference is made to the applicants’ allegation that they were returned to Belarus together with approximately twenty other asylum seekers and that no examination of their personal circumstances was carried out (see Hirsi Jamaa and Others, cited above, §§ 174 and 177)?
 
3.1.  Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 3 of the Convention and Article 4 of Protocol No. 4, as required by Article 13 of the Convention?
 
3.2.  Were the applicants served copies of the decisions to deny them entry into Latvia on 24 November 2017 and informed of the possibility to appeal against those decisions?
 
3.3.  Can an appeal against the decision of the State Border Guard Service denying the applicants entry into Latvia be considered an effective domestic remedy, in view of the fact that it does not have automatic suspensive effect (see M.A. and Others v. Lithuania, cited above, §§ 83-86 and 119, and De Souza Ribeiro v. France [GC], no. 22689/07, § 82, ECHR 2012)?
 
The Government are requested to provide the Court with information on all asylum requests submitted at the Latvian border crossing point “Indra” on 24 November 2017, including the procedures followed with respect to those requests and the decisions taken.
The Government are further requested to provide the Court with information on all decisions refusing entry in Latvia, taken at the border crossing “Indra” on 24 November 2017.

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