Pushbacks legalisation is incompatible with the principles of a democratic society

April 27, 2023

This week Parliament passed and the President signed amendments of the Law on the State Border and its Protection, which legalise pushbacks on people who cross or attempt to cross the border. In principle, the practice established in August 3, 2021 of discouraging people from crossing the border when they attempt to cross the border at places not designated for that purpose, and collectively returning them back to Belarus once they have crossed the border and are on Lithuanian territory, without any safeguards against violation of the principle of non-refoulement or the possibility of defending oneself against such forced pushbacks, now will be enshrined in law.

Individual assessment does not work

Although the law foresees that this practice will be applied on an individual basis, it remains unclear whether individual reasoned administrative decisions will be taken in the case of pushbacks. Moreover, although the pushbacks provisions of the law would not apply to persons fleeing military aggression, armed conflict and/or persecution, as well as to persons seeking to enter Lithuania for humanitarian purposes, there is no approved procedure for such an individual assessment and it is not yet known how such assessment will take place in practice.

It is important to note that currently, people fleeing military aggression and/or persecution can still apply for asylum even after crossing the border irregularly, but in practice, this exemption is only applied to Belarusian and Russian citizens, while people from other regions are collectively deported back to Belarus without being given the opportunity to apply for asylum (Monitoring Report of the Lithuanian Red Cross for 2022, VSAT 2022 statistics).

Since the beginning of the practice, more than 20,000 reversals and pushbacks have been recorded. In 2022, there were more than 11,000 such cases. But in 2022 the State Border Guard Service accepted only 206 asylum applications from persons who irregularly crossed the Lithuanian-Belarusian border. The majority of applications (159) were received from citizens of Belarus. In some cases, people from other countries have been allowed to apply for asylum on the grounds of a medical emergency or because they were subject of interim protection measures imposed by the European Court of Human Rights. It is not known how many people have been allowed to apply for asylum because of their vulnerability (unaccompanied minors, single mothers or fathers with children, people with disabilities, elderly people, etc.), but the overall statistics of the State Border Guard Service suggest that at least by 2022 no such cases have been recorded.

Although there are numerous testimonies from people who have experienced pushbacks about violence, other forms of coercion, humiliation and even treatment amounting to torture by Belarusian officials, there is currently no individual assessment of whether the return to Belarus would expose them to torture, inhuman and degrading treatment. It is important to note that Article 3 of the UN Convention against Torture (UNCAT) and Article 3 of the European Convention on Human Rights prohibits the return or expulssion of persons to a country where they would be at risk of such treatment.

Serious obstacles to applying for asylum at designated places

While the Government says that it is possible to submit asylum applications at international border checkpoints, monitoring by the Lithuanian Red Cross shows that people seeking to submit applications at these checkpoints face serious obstacles as they have to pass through Belarusian border controls. Moreover, even when people manage to reach the Lithuanian border crossing point, there have been cases where their asylum applications have not been registered and the people themselves have been returned to Belarus.

When applying for asylum at the Lithuanian Embassy in Belarus, people face ineffective asylum procedures and a real risk of being returned to their countries of origin, as their stay in Belarus is time-limited and the Migration Department delays in processing these applications. In 2022, 27 asylum applications were lodged at the Embassy in Belarus; in 2023, only 6 of them were still pending, 9 had been discontinued, and 12 had “attempting to contact” status. At least one case has been recorded where an asylum seeker who applied at an embassy was deported from Belarus without receiving a decision from the Migration Department. Moreover, the acceptance of an application at the embassy does not provide the person with documentation necessary to enter Lithuania and exercise his/her rights as an asylum seeker.

Pushbacks trample inherent human dignity

Considering all together, it can be said, that effective access to asylum procedures does not currently exist in Lithuania, and the newly adopted law not only fails to address this problem, but also legitimises it. Although the law provides an exception to the exclusion of persons fleeing persecution, as defined in the UN Convention relating to the Status of Refugees, the current practice of the State Border Guard Service in applying a similar exception, raises serious doubts, as to whether the principle of non-refoulement enshrined in international refugee law will be ensured in practice without discrimination.

While States have the right to manage and control migration, the measures taken must be consistent with fundamental human rights and the protection of inherent human dignity. Pushing people across the border, including vulnerable people, such as families with children, when people spend weeks or even months in the forest, any time of the year, without shelter, food or water, poses a real threat to their health and life. The state’s policy of deterrence, by treating migrants and refugees exclusively as a threat to national security, essentially renders these people as helpless objects to be pushed across borders. Such policies and practices are neither in line with Lithuania’s international obligations nor with the principles of a democratic society, which is based, above all, on respect for fundamental human rights and the inherent dignity of every person.

Photo: Valda Kalnina, EURACTIV.