Regarding emergency situation on the border of Latvia and Belarus
The Ombudsman has sent a letter to the Saeima and the Cabinet of Ministers emphasizing that also during an emergency situation in certain administrative territories, the state is obliged to ensure that the restrictions are really necessary and do not disproportionately restrict human rights and allow Latvia to continue fulfilling international obligations. In turn, any use of force must be proportionate and as the last resort to prevent a threat to national or public security.
Context
The Order of the Cabinet of Ministers issued on August 10 provides for the declaration of emergency situation in certain administrative territories located near the border with the Republic of Belarus. It envisages the involvement of other institutions, as well as provides wider powers to the State Border Guard. Among other things, the order stipulates that applications of persons regarding granting of refugee or alternative status shall not be accepted in the structural units of the State Border Guard and other institutions located in the territory where emergency has been declared.
These measures have been adopted in preparation for a large influx of immigrants on the Latvian-Belarusian border. In justifying such a step, the Government referred to the principle of territorial integrity and the rule of law in the annotation of the order, stating that persons who are third-country nationals could not benefit from violating the law or crossing the state border illegally, except for persons in need of international protection in case of a real immediate threat. However, the Ombudsman points out that such a step can only be possible if other conditions are met. Namely, it must be stated that persons have had the opportunity to apply for asylum legally. In addition, such a possibility must be genuinely and effectively available.
In the situation of Latvia, denying the possibility to submit an asylum application in the entire territory referred to in the order (including upon arrival at a border control point), there are reasonable doubts as to whether persons have real and effective opportunities to apply for asylum.
Latvia has an obligation to ensure that persons have the opportunity to apply for asylum, as well as that a person is not returned to a country where he or she may face persecution, inhuman treatment or torture. Collective forced returns are not allowed, and in cases where persons are nevertheless prevented from crossing the state border, there must be a legal and, at the same time, practicable and effective possibility to apply for asylum. In addition, referring to the case law of the European Court of Human Rights, where a State intends to return an asylum seeker to a third country without examining their asylum application, the State must make sure that the individual in that third country has access to an adequate asylum procedure so that the principle of non-refoulement is respected in that country.
Thus, the Ombudsman calls for the necessary measures to be taken so that each person’s situation is assessed individually during an emergency situation. Special attention must be paid to cases when an unaccompanied minor or a representative of another vulnerable group has entered the country, as well as to ensure that persons who would have grounds to apply for asylum in Latvia have a legal and real opportunity to do so.