Landmark case in the European Court of Human Rights

21/02/25

Last week, the Grand Chamber of the European Court of Human Rights heard the case C.O.C.G. and Others v. Lithuania. It also heard related cases against Poland and Latvia.

The cases concern the widespread practice of ‘push-backs’ or summary removals of asylum-seekers at the EU’s external border. Push-backs occur when a State expels an asylum-seeker from its territory to a third State without considering whether the individual faces ill-treatment in the receiving state or whether they will be returned by that receiving state to their country of origin from which they are fleeing persecution (refoulement).

The Applicants in all three cases were pushed back into Belarus. The three cases concern the legality of pushbacks under the European Convention on Human Rights (“ECHR”). There is overwhelming evidence of the risk of ill-treatment and refoulment in Belarus.  Reports of reputable NGOs such as Amnesty International and Human Rights Watch record that asylum-seekers are routinely subjected to torture and ill-treatment at the hands of the Belarusian authorities, including beatings with chains and iron batons. In addition, the Court has previously found that Belarus lacks an effective refugee status determination procedure, which exposes asylum-seekers to the risk of refoulement.

Lithuania, Latvia, and Poland all argue that pushbacks are necessary since migrants are being ‘instrumentalised’ by Belarus and Russia as a tool of warfare against the EU and the Council of Europe. The claim is that Belarus is forcing migrants to seek asylum in the EU so as to put strain on the EU’s asylum-systems, and to de-stabilise its labour markets and economies. The third-party intervener, the Republic of Finland, also makes a similar argument about asylum-seekers from Russia. The instrumentalization argument, in essence, is that the threats from Russia and Belarus are so extra-ordinary so as to justify derogation from the ordinary protection afforded to asylum-seekers.

The Court will have to consider a number of questions under the ECHR:

1. Does Article 3 on the prohibition on torture and inhumane and degrading treatment allow States to expel asylum-seekers without an assessment of the risk of refoulement in Belarus because of the so-called ‘instrumentalization’ of migrants?
2. What is the proper interpretation and application of Article 4 Protocol 4’s prohibition on the collective expulsion of aliens? In that regard, the Court is required to clarify its judgment in ND and NT v Spain, in which it ruled that, in certain circumstances, States enjoy the right to expel individuals without assessing their asylum claims.
3. Does the instrumentalization of migrants amount to a public emergency threatening the life of the nation within the meaning of Article 15?

The Court’s ruling will have far-reaching implications, including on immigration control in Europe; the interpretation of positive obligations under the Convention; the identification of ‘lex specialis’ under international law; the law on the burden of proof in ill-treatment cases; and any limitations on the principle of non-refoulement.