The Constitutional Court decided on 7 June 2023 that Article 140^8 of the Law on the Legal Status of Foreigners in Lithuania, which provides that in the event of a mass influx of foreigners during a declared state of emergency or a state of war, all asylum seekers who have submitted asylum applications at border checkpoints, transit zones or shortly after illegally crossing the state border of the Republic of Lithuania, must be accommodated in designated places, until a decision has been taken to admit them to the Republic of Lithuania, without being granted the right to move freely within the territory, for up to six months, without a decision by the competent authority judicially reviewed by a court, violates Article 20 of the Lithuanian Constitution.

The Constitutional Court observed that Article 20 of the Constitution, which protects the right to liberty, protects against any unlawful restriction or deprivation of liberty, including restrictions on freedom of movement. It held that necessary limitations of this right may be provided only by clearly and comprehensibly setting out in the law the grounds and conditions for such a limitation, as well as the manner and procedure for its application, to individualise the applicable specific measures limiting the liberty to the person. Furthermore, all limitations must be imposed with respect for human dignity.

The court further noted that the right to liberty may be limited in order to protect the constitutional order of the state, for public order and state security, while performing an assessment of the real threat posed by the person to the values protected by the Constitution, where that threat would require the limitation of the person’s liberty. Thus, the court held that provision must include the possibility of judicial review of the lawfulness and reasonableness of such a limitation.

The Constitutional Court noted that the provision at issue in this case was established to ensure public order, to protect the state border, and to control the increased flow of foreigners crossing the Lithuanian border during an extraordinary situation, a state of emergency, or a state of war.

However, it noted that when applying temporary accommodation in designated places to all asylum seekers, without granting them the right to move within the territory, no preconditions were created for an individual assessment of each person’s situation, of the real threat posed to values protected by the Constitution, the interests of the state and society, and no preconditions were created for the application of alternative measures less restrictive on the person’s liberty.

The court highlighted that third country nationals had their freedom of movement restricted in the absence of any decision of the relevant competent authority, but solely on the basis of the fact that they were in Lithuania and their applications for asylum had not yet been examined on the merits. Thus, the court concluded that such a legal regulation, in the absence of any decision of the competent administrative authority restricting the liberty of a person, did not guarantee the right of asylum seekers to verify before a court the validity and lawfulness of the measure applied against them.

The Constitutional Court also referred to the CJEU judgement M.A. v State Border Protection Service at the Ministry of the Interior of the Republic of Lithuania, C-72/22 PPU, ECLI:EU:C:2022:505, 30 June 2022 and and the reopening of the case before the Supreme Administrative Court of Lithuania, M.A. v State Border Protection Service at the Ministry of the Interior of the Republic of Lithuania, A-1091-822/2022, 28 July 2022.