A.R. v Latvia, A.Z. v Latvia, and S.A. v Latvia: Torture, life endangerment, and refoulement in Latvia-Belarus borderlands

On 10 August 2021, Latvia introduced a state of emergency following a surge in ‘irregular’ entry of migrants through Belarus. The emergency legislation (Order No. 518 of the Cabinet of Ministers of the Republic of Latvia on the Declaration of Emergency Situation) blocked migrants from accessing asylum procedures in four Latvian regions adjacent to Belarus, except at border checkpoints and at the Daugavpils migrant detention centre (to which migrants’ access is blocked), effectively legalising refoulement to Belarus.

This legislation is manifestly unlawful under EU and international law. The European Commission has however thus far failed to act in line with its responsibility to respond to Latvia’s systemic breaches of EU law in the context of its border operations.

Approximately 250 people suffered abuses similar to those experienced by the applicants at the Latvia-Belarus border from the summer of 2021 until February 2022 (and beyond), and a number of cases (e.g., H.M.M. and Ors v Latvia) are currently pending before the European Court of Human Rights. The majority of those who were contained in the forest by Latvian forces and routinely turned back by Belarussian authorities come from Kurdish and Yazidi communities in Iraq. The situation at the border has significantly worsened since December 2022, leading to several confirmed and scores of alleged deaths.

The violence along the EU-Belarus border is emblematic of the EU’s “lawless laws” of migration control, given the scale of EU law breaches that the Commission and other EU actors have persistently failed to respond to. It is also exemplary of the differential treatment afforded to migrants at other parts of the EU border with Belarus in Poland.

A.Z., A.R., and S.A. all left Iraq to escape persecution and sought to enter the European Union’s territory to apply for international protection. S.A. arrived in Belarus on 12 August 2021, A.R. on 20 October 2021, and A.Z. on 1 November 2021. They experienced similar patterns of violence, arbitrary detention, enforced disappearance, and ‘pushbacks’, along with many others whose experiences are detailed in their complaints.

A detailed account of the facts of each case is available on the domestic proceedings’ case page.

Between October 2022 and March 2023, A.R., A.Z., and S.A. filed complaints with the Latvian Public Prosecutor, asking the Prosecutor to investigate their ill-treatment, identify and hold to account those responsible for it. In all three instances, the Public Prosecutor tasked the Internal Security Bureau—an institution under the supervision of the Minister for the Interior, which also oversees the State Border Guard Service, one of the alleged perpetrators of ill‐treatment—to examine the complaints.

The Internal Security Bureau refused to initiate criminal investigations into the applicants’ alleged ill-treatment. A.R., A.Z., and S.A. each respectively appealed the Internal Security Bureau’s decision in their cases before the Public Prosecutor, and each of their appeals was respectively dismissed. The Public Prosecutor’s decisions are not subject to appeal. With all domestic remedies having been exhausted, the applicants proceeded to bring their case before the European Court of Human Rights.

The three cases argue that A.R., A.Z., and S.A. were exposed to violations of their right to life, of the prohibition of torture, of their right to an effective remedy, and of the prohibition of discrimination.

The cases submit that Latvian authorities directly subjected A.R., A.Z., and S.A. to life-endangering conditions that violated the prohibition of the use of force and may have led to their arbitrary killing. It further submits that by subjecting them to incommunicado detention and abandoning them, together with other migrants, in the wilderness in extreme temperatures Latvia failed to take measures to mitigate the risk to the applicants’ lives and physical integrity. Further, Latvian officials intentionally subjected the applicants to multiple acts of mental and physical violence that cumulatively amount to torture, and that such acts were discriminatory, for being based on their ethnic origin.

The cases submit that Latvia violated its positive obligations under Articles 2 and 3 ECHR to investigate allegations of life endangerment and torture. The lack of hierarchical and practical independence of the Internal Security Bureau, and by the Prosecutor General’s failure to take any proactive and direct investigative measures, relying instead on the findings of the Internal Security Bureau to dismiss the applicants’ complaints,  undermined an effective investigation.

Further, the manner in which the Prosecutor General reached its decision (which is not subject to an appeal) resulted in a violation of the applicants’ right to an effective remedy under Article 13 ECHR.

The cases seek to demonstrate the gravely violent nature of the EU’s border regime and its normalisation of the erosion of the right to asylum in the EU, by exposing the manner in which the EU’s outsourcing of border controls to its external border Member States has enabled structural border violence and its unaccountability.

The cases make several legal arguments based on the ECtHR’s case-law, including that the denial of access to asylum may amount to torture, and can occur indirectly as a result of summary removal to a state that will expel and deny the person access to asylum. Against the backdrop of systemic barriers to access asylum at the EU’s borders, the cases argue that a person prevented from lodging an asylum application (due to the state’s in/actions) should nevertheless benefit from the protections granted to registered asylum-seekers by the Convention. This includes a lower evidentiary threshold for their grounds for protection and a presumption of protection from non-refoulement under Article 3, as was the case in Hirsi Jamaa and Ors v Italy.

The cases, supported by Latvian NGOs Gribu palīdzēt bēgļiem (I Want to Help Refugees) and Providus, are part of a broader effort to pursue accountability for this violent border regime with a focus on the EU’s role. Since 2021, and despite repeated appeals by civil society and MEPs, the Commission has systematically failed to respond to the dire conditions at the Latvia-Belarus border, where many migrants continue to become trapped for prolonged periods of up to several months. Since Latvia’s emergency legislation (Order No. 518) blocks migrants from accessing asylum procedures in certain regions, and in practice also at most border checkpoints, it is unequivocal that Latvia’s policies amount to systemic breaches of EU law. This border regime was recently reinforced by further measures that legalise refoulement to Belarus in manifest disregard of EU and international law.

Despite Latvia and Belarus’ policies of systemic violence against migrants, the European Commission has persistently failed to take enforcement action. The EU’s persistent wrongful inaction and reliance on Latvia is at odds with its commitment at the international level and involvement in multilateral processes for international justice and accountability for the violence against Yazidi and Kurdish communities whose members are subject to the mass and structural violence at the Latvia-Belarus border, denied access to asylum in the EU, and forcibly returned to Iraq in cooperation with the International Organisation for Migration.

The complaints emerged out of relationalities of solidarity and support with legal practitioners at Respect-Protect-Fulfill, a group of primarily Belarussian lawyers based in Lithuania, that has filed several cases seeking redress for the systemic border violence along the EU-Belarus border. The cases are based on the field-research, analysis and accompaniment of the claimants and their communities based on existing relations with Dr. Aleksandra Ancite-Jepifánova and Toms Ancītis.

S.A. complaint
19 December 2023: Case filed with the European Court of Human Rights 

A.Z. complaint
20 November 2023: Case filed with the European Court of Human Rights

A.R. complaint
19 December 2023: Case filed with the European Court of Human Rights

All three cases were registered in February 2024.

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Aleksandra Ancite-Jepifánova, Seven Months in the Freezing Forest, Verfassungsblog, 15 November 2022

Aleksandra Ancite-Jepifánova, Trapped in a Lawless Zone: Humanitarian Crisis at the Latvia-Belarus Border (2022)