Commissioner O’Flaherty has published today his written comments to the Grand Chamber of the European Court of Human Rights in the cases of C.O.C.G. and Others v. Lithuania, H.M.M. and Others v. Latvia, and R.A. and Others v. Poland.* The cases relate to the alleged summary returns of asylum seekers by each of the three states across their borders with Belarus. The Court’s judgments in these cases may provide further clarification about the Convention obligations of Council of Europe member states when faced with irregular arrivals across their borders, including in the context of the so-called instrumentalisation of migration by other states, such as Belarus.
In his comments, the Commissioner puts before the Court information about access to asylum and summary returns in each of the three respondent states and the human rights and humanitarian situation of those subjected to such returns to Belarus.
More generally, the Commissioner highlights the importance of not interpreting the case law in a way that could render ineffective the Convention’s protection against returning people to torture or inhuman or degrading treatment or punishment, which is prohibited under Article 3 of the Convention.
As regards the prohibition of collective expulsions under Article 4 of Protocol No. 4 to the Convention, the Commissioner comments on the current practice of member states interpreting the criteria set by the Court in its case-law in a way that may allow them not to carry out an individual examination of a person’s circumstances before returning them.
He also sets out how the instrumentalisation of migration might impact on the above-mentioned issues, noting that the challenges stemming from this phenomenon should be addressed in line with the long-standing principles set out by the Court.
The Grand Chamber will hold a hearing in each of the three cases on 12 February 2025.
* The intervention in R.A. and Others v. Poland complements an earlier submission to the Court in the same case, made on 27 January 2022, and includes observations based on the Commissioner’s recent mission to Poland.