An emergency situation has been declared since August 2021 for the municipalities near the Latvia – Belarus border, with a special legal regime that restricts access to asylum.
According to Order No.518 “Regarding the Declaration of Emergency Situation”, state institutions are not allowed to accept any requests for asylum in the municipalities where the emergency situation has been declared. The only exceptions where asylum can be requested are the official border crossing points, as well as the centre for detained foreigners in Daugavpils. The Order also authorises State Border Guards and other officials to use force in order to prevent people from entering the territory of Latvia, and in making them return to the territory of Belarus.
Application of the emergency measures in practice
In practice, the emergency regulation means that every person who crosses the border of Latvia from Belarus in an irregular manner can be returned to Belarus without a written return decision. And, even if they do request asylum, it won’t be taken into account. This does not apply if a person requests asylum at an official border crossing point at Silene or Pātarnieki.
However, since international human rights law is still binding on Latvia, the State Border Guards must also evaluate individual circumstances before returning someone to Belarus. If the State Border Guards decide that there may be a severe breach of human rights, they can decide not to return a person to Belarus. This decision may be taken on humanitarian grounds i.e., if the foreigner is ill, if children or other vulnerable groups are involved etc. In this case, the person will be detained and taken to the centre for detained foreigners in Daugavpils, where it is possible to request asylum. After this, the asylum procedure will be the same as for everyone else who has requested asylum in Latvia.
What human rights violation may there be?
It is possible that the return to Belarus without any individual evaluation may put you at risk of violation of your right to life or freedom from torture or inhumane or degrading treatment or the prohibition of collective returns. These violations may result from undignified living conditions or a disregard for the non-refoulement principle (being sent back to the country where you are faced with persecution).
In addition, upon entering the territory of Latvia, even if access to asylum is denied, you do still have your rights. The European Court of Human Rights in the case H.M.M. and Others v. Latvia (application No. 42165/21), decided to apply Rule 39 (interim measures) and request that the Latvian authorities provide all the applicants with food, water, clothing, adequate medical care and, if possible, temporary shelter.
How to complain
Since the emergency regulation has been provided by a Cabinet Order, you have the right to complain about the return or the fact that access to asylum has been denied to you. You can do this according to the Administrative Procedure Law. In practice, however, since the return may be immediate, you may have to do this after you have been returned to Belarus. If you are in the territory of Latvia near the Belarus border, you can also complain to the European Court of Human Rights and request the interim measures in line with Article 39. The Court may rule that you can remain in Latvia for a certain amount of time.