C. P. U. D., a third-country national, claimed that after entering Lithuania unlawfully on 23 October 2023, he had been denied the possibility to apply for asylum, that the State Border Guard Service of the Ministry of the Interior (the Ministry) had pushed him back to Belarus, where he remained between 23 and 26 October 2023, and that his liberty had been unlawfully restricted from 26 October 2023 to 29 November 2023, on the instruction of the Migration Department of the Ministry. The applicant claimed that the actions of the authorities violated EU and national law on access to asylum and return of foreigners and that these actions caused him non-pecuniary damage manifested in danger to life and health, frostbite, physical pain, negative experiences, and emotional depression. The applicant was admitted to hospital in Lithuania on 26 October 2023 and his asylum application was accepted on 30 October 2023. He brought a complaint before the Regional Administrative Court in Kaunas, seeking 10,000 EUR in non-pecuniary damages, which the court dismissed as unfounded on 10 June 2024.

The applicant appealed to the Supreme Administrative Court, which partially allowed the appeal.

Regarding the refusal of entry and pushback to Belarus, the Supreme Administrative Court held that the first-instance court had not carried out a sufficiently thorough assessment of the evidence, as it had essentially relied on the State Border Guard Service’s statements that the applicant had not requested asylum, which the applicant denied. Recognizing that the applicant was the weaker party, the court held that uncertainties should be interpreted in his favour. Referring to the CJEU judgment in X v State Secretary for Justice and Security (Staatssecretaris van Justitie en Veiligheid) (C-392/22, 29 February 2024), the court recalled that pushbacks at the Union’s external borders, which prevent the lodging and examination of an asylum application, violate Article 6 (access to the procedure) of the recast Asylum Procedures Directive (APD). It further relied on the CJEU’s interpretation of Article 18 (right to asylum) of the Charter of Fundamental Rights of the European Union (EU Charter), namely in FMS and Others v Országos Idegenrendeszeti Főigazgatóság Dél-alföldi Regionális Igazgatóság and Országos Idegenrendeszeti Főigazgatóság (C-924/19 and C-925/19, 14 May 2020), emphasising that any third-country national or stateless person has the right to submit an application for international protection, including at the border by expressing that wish to the competent authority, regardless of unlawful entry and irrespective of the prospects of success of the application. The Supreme Administrative Court therefore ruled that in the present case, the State Border Guard Service had acted unlawfully by forcibly pushing the applicant out of Lithuanian territory and failing to provide him with a real opportunity to apply for asylum.

The court also recognized that the applicant suffered health damage, physical pain, and negative experiences. While the court considered that these consequences were partly linked to the applicant’s own decision to cross unlawfully during the cold season and to the conduct of officers in Belarus, it acknowledged that the pushback contributed to the harm by forcing the applicant to remain in cold conditions for several additional days. At the same time, considering the nature, scope and duration of the violation, the lack of evidence of any mental health impact, the emergency situation declared due to the migration influx, and the absence of any indication that the State Border Guard Service sought to worsen the applicant’s legal position, the court concluded that the negative impact of the pushback was not sufficient to warrant the monetary compensation requested, and that the finding of the violation constituted sufficient and fair satisfaction.

As to the restriction of freedom of movement, the Supreme Administrative Court agreed with the first-instance court that the restriction was lawful. It recalled, with reference to Article 6 (right to liberty and security) of the EU Charter and CJEU judgment in FMS and Others v Országos Idegenrendeszeti Főigazgatóság Dél-alföldi Regionális Igazgatóság and Országos Idegenrendeszeti Főigazgatóság (C-924/19 and C-925/19, 14 May 2020), that the authorities may detain an applicant only following an individual assessment of necessity and proportionality, on the basis of an administrative or judicial decision, and subject to judicial review. In the present case, the court noted that the applicant had the possibility to meet with a lawyer and to apply to the Vilnius District Court, which dismissed his complaint on 29 December 2023, and that he did not appeal further. The Supreme Administrative Court therefore ruled that the accommodation with restricted movement in the Refugee Reception Centre for about one month served to examine the asylum grounds and to ensure EU external border security and prevent irregular migration, not amounting to unlawful action giving rise to damages.

Additionally, the applicant also requested the court to refer the case to the CJEU for a preliminary ruling on whether Article 6(1) and Article 8(1) of the recast APD allow for national rules under which border guards – when turning back a foreigner – assess whether a person is fleeing persecution themselves, without ensuring interpretation. The Supreme Administrative Court dismissed this request, holding that the issue was already essentially answered in existing CJEU case-law and that a reference was not necessary to decide this case. The court noted that it is for the national court to assess whether a reference for preliminary ruling is necessary to deliver its judgement, and that it is not bound by the parties’ initiative.

In conclusion, the Supreme Administrative Court partly upheld the appeal, ruling that the pushback to Belarus on 23 October 2023 violated the applicant’s right to asylum and access to the procedure. The court declined to award monetary compensation for non-pecuniary damages, holding that the finding of the violation constituted sufficient satisfaction. It also upheld the lawfulness of the applicant’s restriction of movement, which lasted for about one month.