Submission by the Office of the United Nations High Commissioner for Refugees in the case of C.O.C.G. and Others v. Lithuania (Application No. 17764/22) before the Grand Chamber of the European Court of Human Rights

5.1. UNHCR has repeatedly condemned the so-called ‘instrumentalization’ of refugees by States to achieve political ends. Forcing, encouraging or facilitating movements of refugees to other countries creates grave risks and compounds the suffering and trauma of persons on the move, as well as creating security and public order challenges for States receiving such movements. Nevertheless, ‘instrumentalization’ does not provide a basis for a general derogation from asylum, refugee protection and human rights norms.93 UNHCR submits that following the emergency declaration in 2021, Lithuanian laws and practices have created a systematic practice of summary returns that contravenes both international and European law. First, the summary removal to Belarus of individuals potentially in need of international protection is at variance with international refugee and human rights law, regardless of the declaration of a situation of emergency or ‘instrumentalization’. Given the absolute nature of the principle of non-refoulement, no action taken by third States affects Lithuania’s obligations under Article 3 ECHR. Second, restricting access to territory and asylum procedures for all individuals crossing the border irregularly, in the absence of genuine and effective access to legal means of entry, is at variance with Article 4 of Protocol No. 4 to the ECHR. In addition, given the essential nexus between the principle of non-refoulement and the prohibition of collective expulsion, UNHCR submits that States’ obligations under this provision do not change in situations of declared ‘instrumentalization’ of migration. Third, the de facto detention measures adopted under the emergency legislation are not in line with the standards and procedural safeguards required by Articles 3 and 5 ECHR. Even in situations of so-called ‘instrumentalization’, detention must meet the lawfulness standards developed by this Court in relation to situations of mass arrivals of asylum-seekers and conditions must be in line with Article 3 ECHR. Fourth, failing to provide individuals with written removal orders and imposing significant restrictions on access to legal aid contravenes Article 13 ECHR in conjunction with Articles 3 ECHR and 4 to Protocol No. 4 to the ECHR. In UNHCR’s view, these conclusions remain valid also in situations of so-called ‘instrumentalization’.