Assessing the intrinsic unlawfulness of pushbacks

A case concerning the pushbacks of four Cuban nationals from Lithuania into Belarus in the spring of 2022 has been exceptionally referred to the highest chamber of the European Court of Human Rights, together with cases against Poland and Latvia. All three cases concern pushbacks to Belarus in a context which spurred a debate on the “instrumentalization” of refugees. The referral indicates that the Grand Chamber intends to issue a landmark decision on this case. In the specific case of C.O.C.G. and others, the applicants explain how they were ill-treated, unlawfully detained and repeatedly pushed back from Lithuania to Belarus. ECCHR entered the proceedings by submitting a third party intervention to the Court in September 2024. The written submission assesses pushback practices against international and European human rights standards bringing together reports by various human rights bodies which unanimously define state pushbacks as intrinsically unlawful and conducive to grave human rights violations.

After taking part in anti-government protests, four Cuban nationals feared for their safety and headed to Belarus from where they repeatedly attempted to cross the border into Lithuania in April 2022. They were humiliated and pushed back at gunpoint by Lithuanian border guards who also ignored an interim decision published by the European Court of Human Rights ordering that they should not be sent back to Belarus. Instead, the group was prevented from applying for asylum, were given no options to legally challenge their pushback and were later unlawfully detained. The case asserts violations of articles 2, 3, 5, 13 and 34 and article 4, protocol 4. They are represented by lawyer, Daria Sartori from the Rule 39 Initiative.

ECCHR’s written submission in the case assesses international and regional legal standards and reports from human rights institutions, looking at the relevant minimum safeguards and establishing that pushbacks can never be lawful. Allowing states to handle people informally without record leads to numerous, grave human rights violations, such as torture, inhuman and degrading treatment, refoulement, violations of the right to life, enforced disappearances, and arbitrary and inhuman detention.

As larger numbers of people on the move began arriving to seek asylum in Lithuania from Belarus in 2021, Lithuania announced a state of emergency and adopted laws breaching their international and EU law obligations. These reforms subjected asylum-seekers arriving at the border either to mass pushbacks, or to automatic and unchallengeable detention.

COCG v Lithuania is one of three cases involving pushbacks into Belarus which were referred to the Grand Chamber in April 2024 while over 30 cases are pending before the Court against Lithuania, Latvia and Poland addressing the situation at the Belarusian borders from spring 2021 to summer 2023. 

The referral indicates that the Grand Chamber intends to issue a landmark decision on this case. Its consideration together with R.A. v. Poland and H.M.M. v Latvia points towards a judgment that may define the way the Court addresses the narrative of “instrumentalisation” within its non-refoulement jurisprudence. This could further impact on the recent inclusion of “instrumentalisation” within the reformed Common European Asylum System as a justification for further derogations from the EU’s human rights obligations.