Dr Aleksandra Jolkina, PhD in Law, Queen Mary University of London
It was August 2021 when Saif (name changed), an Iraqi national of Yazidi origin, travelled to the Belarus-Latvia border to apply for international protection in the EU. Little did he know at the time that he would spent the following seven months in the forest – being moved back and forth by Latvian and Belarusian forces only to be ultimately returned back to Iraq without his asylum claim having even been registered.
Saif is one of the non-EU nationals who have fallen victim to the Latvian policy, adopted in summer 2021 amid the so-called EU-Belarus border crisis. In response to the rising numbers of asylum-seekers – predominantly from the Middle East – trying to irregularly cross into the EU from Belarus, three EU Member States – Poland, Latvia and Lithuania – declared a state of emergency on the Belarus border and introduced changes to domestic asylum legislation. In the local media and political discourses, the issue has been widely framed as a security threat and ‘hybrid attack’ orchestrated by the Belarusian regime after the EU imposed sanctions on Minsk earlier that year.
This contribution focuses on the situation in Latvia, a country of population of less than two million that joined the EU in 2004. Although Poland, Lithuania and Latvia have reacted to the events at the Belarus border in a similar manner, there are at least two elements that set the Latvian case apart. First, unlike in the former two Member States, the pushbacks carried out by the Latvian authorities targeted a very small group of largely the same people who were forced to remain in the forest for up to seven months. Second, while European public attention focused on the events in Poland and, to a somewhat lesser extent, Lithuania, the situation in Latvia has been almost entirely neglected – not least because of the absence of critical reporting in local media who only reproduced the government narrative about the ‘hybrid attack’ and never published in-depth interviews with people who attempted to cross the border.
Latvia suspended the right to seek asylum and legalised pushbacks
Traditionally, the number of asylum-seekers in Latvia has been insignificant – for example, over the period from 2018 to 2020, it was lower than 200 people per year. In August 2021, the Latvian authorities registered 386 asylum applications, which was 2.5 times more than during the entire year of 2020. The upward trend, which could be largely explained by the increase in irregular arrivals through Belarus, was nevertheless still very minor in absolute numbers. For the Latvian government, however, it served as a rationale for introducing far-reaching, blanket domestic emergency measures that explicitly suspended the right to seek asylum and legalised pushbacks – in clear breach of the country’s obligations under EU and international human rights law.
Under the relevant Cabinet of Ministers Order, which came into force on 10 August 2021, the Latvian State Border Guard, the National Armed Forces and the State Police have been authorised to order persons, who have irregularly crossed the Latvian border from Belarus, to immediately return to Belarus without formal return procedures. The Latvian authorities have also been allowed to use physical force and special means, such as electric shock devices, to ensure compliance. In addition, the Order prohibited Latvian border guard units and other authorities located in the administrative territories along the Belarus border to accept applications for international protection – including at official border crossing points.
Latvian domestic legislation comes into considerable tension with EU asylum law and international human rights law, particularly where it concerns access to the asylum procedure, the prohibition on collective expulsion and the compliance with the central cornerstone of international refugee law – the non-refoulement principle which prohibits returning foreign nationals to a state where they may be exposed to persecution and or inhuman or degrading treatment. This principle, protected under Article 33(1) of the 1951 Refugee Convention, Article 3 of the Convention against Torture, Article 3 of the European Convention on Human Rights (ECHR) and Article 19(2) of the EU Charter of Fundamental Rights (EUCFR), is non-derogable and should be respected even in situations of declared emergency. Accordingly, a person who crosses the border, either regularly or irregularly, and expresses a wish to apply for international protection, should be at least temporarily admitted to have their circumstances individually assessed.
A small group of non-EU nationals was pushed back and forth for months
Latvian border guards officially claim having stopped over 6,700 attempts to irregularly cross the country’s border from Belarus since August 2021. The preliminary findings of my study on the situation at the border (available here and here), however, suggest that in reality only as few as ~250 non-EU nationals attempted to cross the green border over this period. These persons, who arrived at the border at different times, ended up trapped in the forest and routinely moved back and forth by the Latvian and Belarusian authorities for several months. A Latvian border guard representative confirmed in an interview that those experiencing daily pushbacks on the Latvia-Belarus border were largely the same people.
Out of these, ~150 individuals were ultimately allowed entry into Latvia on so-called ‘humanitarian grounds’. They were then transferred from the forest to the closed detention centre for foreigners in the city of Daugavpils, detained there as irregular migrants and typically returned to their countries of origin via the IOM assisted voluntary return programme. As part of my study, I have interviewed ~40 such persons, five of whom were female and the rest male. My interviewees were admitted in the Daugavpils centre at different times over the period from mid-August 2021 to late March 2022 and typically claim having spent several weeks or months in the forest (in most extreme cases, six or seven months). With a few exceptions, the interviews have been conducted via online communication tools after the relevant persons had returned to their countries of origin. Their testimonies are very detailed, consistent and backed up by various types of evidence, such as documents issued to them at the Daugavpils centre, IOM documents, photos, videos, airline tickets and Belarus visas.
People stranded in the forest were exposed to inhuman and degrading treatment
The testimonies collected reveal that non-EU nationals were forcefully kept in the border area in life-threatening conditions. According to my interviewees, up to mid-December 2021 the Latvian authorities daily transported them to a tent set up in the forest in the Latvian territory and allowed to sleep there. Early in the morning, they drove them back to the Belarus border and ordered them to cross it. During the day, they were pushed back to Latvia by the Belarusian forces. My interviewees testify that on the Latvian side, they were guarded by armed masked men in dark uniforms (referred to as ‘commandos’) who subjected those apprehended at the border to physical violence and other abuses – beat them up, including with electric shock devices, threatened them, regularly checked their clothes, demanded absolute obedience and punished them for ‘misbehaving’, such as complaining or asking for something.
One of my interviewees, who spent over three months in the forest, recalls:
‘The Latvians operated as follows: there were groups consisting of a few men in military uniforms who passed us on to masked men in black uniforms and gave them orders. The men in black uniforms then forced us into cars and beat us up severely. I thought they were going to kill us. They even hit me with electric shock in the head. I thought I was going crazy, I lost conscience. It was impossible to talk or discuss anything with them; we were all very scared. They prohibited us to look them in the eyes and hit us every time they saw us doing so. During the first few days they beat us constantly’.
Another man he was with in the forest adds:
‘Every day at 4am they woke us up, put us in cars and drove us to the border. Sometimes they put 20-25 people in one minibus. It was so hard for us – we had to sit on our knees with our heads down like the biggest terrorists in the world’.
It is testified that from mid-December on, the Latvian authorities drove people to the tent only occasionally, forcing them to live under an open sky in very low temperatures (up to -20C) and continuing to subject them to regular pushbacks – sometimes multiple times a day. The people stranded in the forest suffered from severe malnutrition (the Latvian authorities only gave them a pack of biscuits and a bottle of water per day), as well as burns, frostbite and other skin conditions, caused by inability to maintain hygiene. ‘It was very cold, and we needed to make fire during the night to survive. One or two people had to stay awake to keep the fire burning. I have never seen life like this, I will never forget that,’ one of my interviewees told me.
People I have spoken with report that Latvian or Belarus forces systematically destroyed or confiscated their SIM cards or phones; therefore it was impossible to document what was happening at the border or get in touch with their families who had no information about their whereabouts for months. It was only on a few occasions that some Latvian or Belarusian border guards or police officers agreed to take photos of the people stranded in the forest and send them to their relatives to show they were alive.
From a legal perspective, one can distinguish two separate situations when the individuals concerned were exposed to inhuman and degrading treatment within the meaning of Article 3 of the ECHR and Article 4 of the EUCFR. First, the Latvian authorities violated the non-refoulement principle by forcing them to return to Belarus. It should be stressed that Belarusian forces did not allow foreign nationals to return to Minsk, effectively forcing them to live in the forest for prolonged periods in dire conditions without any opportunity to claim asylum in Belarus. Second, the actions of the Latvian authorities, described above, can equally be classified as inhuman and degrading treatment. The ill-treatment of the non-EU nationals involved may also amount to torture as it is defined by Article 1 of the Convention against Torture, as well as constituting enforced disappearance in terms of Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance.
Forcible ‘voluntary’ return
The collected testimonies show that the Latvian authorities asked people trapped in the forest to agree to return to their countries of origin as a precondition for being transferred to the Daugavpils centre. My interviewees told they were warned that if they changed their mind in Daugavpils, they would be returned back to the forest. Several people reported they were transferred to the centre after they attempted to commit suicide.
All my interviewees told they were pressured into signing the voluntary return declaration at the Daugavpils centre. According to their testimonies, the authorities informed them there was no possibility to apply for international protection and threatened to take them back to the forest or keep them in the centre for a long time if they did not agree to return. In many cases, no legal assistance was provided at the centre. Upon arrival in the centre my interviewees were typically placed in quarantine and returned to their countries of origin via the IOM assisted voluntary return programme within several days.
One of the Iraqi nationals I have spoken with described the situation as follows:
‘On one occasion the Latvians asked me and several people I was with [in the forest] if we would agree to return to Iraq. I did not agree because I have serious problems in my country. After I refused to return I was beaten severely by the Latvian commandos. Three men hit me with electric shock and beat me in the ribs.
Several days after they beat me up I tried to kill myself. I went aside and tried to hang myself with a scarf on the Latvian side in the forest but my friends eventually noticed that and did not let me do that. I thought there was no way out of there.
Later they offered me to return home again. They took me to a border guard’s office and then to the Daugavpils centre where they forced me to sign the voluntary return declaration. The inspector said that if I signed it, I would fly back to Iraq, and if I did not sign it, they would take me back to the forest. I begged them not to send me back to Iraq and asked for asylum many times but they did not react. I would have never signed the voluntary return declaration if I were not forced to do so.’
Another individual he was with in the forest reported he was forcefully driven to the airport and forced to sign the declaration in the car. Moreover, several of my interviewees claimed that, prior to their return flights, they had expressed to the IOM representative present at the airport that they did not want to be returned. They alleged that the IOM representative had ‘remained indifferent’ and explained to them they had no other option.
Against this background, the IOM involvement in the returns procedure is highly problematic. When confronted about the incidents described above, the head of the IOM office in Latvia Ilmārs Mežs denied all the allegations and claimed that the individuals agreed to return voluntarily. Yet, regardless of whether his claims are credible, it should be remembered that the Latvian domestic emergency legislation openly violates EU and international law. In a situation where individuals, despite their wish to claim asylum, were not provided an opportunity to do so and were denied an individual assessment of their need for protection, their participation in the IOM assisted voluntary return programme cannot be considered voluntary. Moreover, this might have led to situations where an individual was returned to a state where they could face persecution and/or inhuman or degrading treatment. The IOM decision to continue to operate the programme under these circumstances thus raises serious concerns about the organisation’s potential engagement in and facilitation of refoulement practices.
Since August 2021, access to the border area and the closed centre for foreigners in Daugavpils has been severely restricted. Despite multiple requests, I was neither allowed to visit the centre, nor provided an opportunity to interview the Latvian border guard representatives about the situation at the border. It is peculiar that the State Border Guard confirmed pushbacks were taking place yet publicly denied any type of violence was ever used against the non-EU nationals involved. The Latvian State Police has equally claimed not to be aware of any such incidents and declined to disclose any details about the police units assisting the border guards at the Belarus border. In response to my written question, a police spokesperson only revealed that these were ‘experienced policemen, including those with experience in various international missions’. Such lack of transparency seriously undermines accountability and creates an environment for abuse of power.
It was not until late March 2022 that the Latvian emergency legislation was eventually challenged before a domestic court. In its respective decision, Rēzekne district administrative court declared the Order incompatible with EU and international law. Following that, the Order was amended to allow third-country nationals to submit claims for international protection at official border crossing points and the detention centre in Daugavpils.
The changes, however, do not go far enough. According to international law, persons must also be able to submit claims for international protection outside official border crossing points, unless such points are easily accessible. The amended version of the Order, however, implies that those who cross or attempt to cross the green border to apply for asylum will remain to be subjected to pushbacks. The monthly statistics of ‘deterred border crossings’, published by the Latvian border guard, suggest that these indeed continue to take place.
The relevant numbers, however, are extremely low. In May and June 2022, the Latvian border guards have stopped a few dozen attempts to irregularly cross from Belarus, which, most likely, is to be attributed to a tiny group of people who try to cross the border multiple times. Nevertheless, the Latvian government has further extended the state of emergency until 10 November 2022.
The situation has been further exacerbated by the lack of a firm EU-level response to open asylum-seeker rights violations in the three Member States concerned. So far, the European Commission – the guardian of the Treaties – has failed to initiate an infringement procedure against Poland, Lithuania or Latvia, a position that may have serious implications for the rule of law in the EU. For the non-EU nationals involved this means that they will most likely continue to remain trapped in the forest at the EU’s external border – an area where EU and international law no longer applies and their fundamental rights are blatantly violated.
 Unpublished statistics of the Latvian Office of Citizenship and Migration Affairs (on file with the author).
 Email correspondence with the author.
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