The refusal to re-issue a passport to a legally resident alien who faced fear of persecution in his country of origin violated the right to free movement
JUDGMENT
L.B. and others v. Lithuania 14.06.2022 (app. no. 38121/20)
SUMMARY
Right of the individual to travel to any country of his choice. Freedom of movement
The applicant is a Russian citizen of Chechen origin. In 2001 he fled to Lithuania and was granted subsidiary protection until 2008, in view of the ongoing war and widespread human rights violations in the Chechen Republic. In 2008 he received a legal residence permit and until 2018 he was granted a passport by the Lithuanian authorities. The Lithuanian authorities have since rejected his passport renewal requests on the grounds that he could obtain a valid passport or equivalent travel document from the authorities in his home country. He could not travel to the UK where his children were. He filled an action for violation of the right to free movement.
The Court reiterated that interference with a person’s right to leave any country must be “in accordance with law”.
The ECtHR assessed that under no circumstances could the refusal to renew a passport be considered “necessary in a democratic society”. It found that the Lithuanian authorities did not assess whether the possibility of obtaining a travel document from Russia was in practice accessible to the applicant in the light of his individual circumstances, namely his fear of persecution in his home country, including the fact that he had lived in Lithuania for almost twenty years and he did not have a valid Russian ID during this period.
It held that the refusal to grant the applicant an alien passport was taken without carrying out a balancing exercise and without ensuring that such a measure was justified and proportionate to his individual situation.
The ECHR found a violation of Article 2 of Protocol No. 4 of the ECHR and awarded an amount of 5,000 euros for non pecuniary damage.
PROVISION
Article 2 of the 4rth Additional Protocol
PRINCIPAL FACTS
The applicant, L.B., is a Russian national who was born in 1974 and lives in Vilnius.
The case concerns the Lithuanian authorities’ refusal to issue a travel document to the applicant, a
permanent resident previously granted subsidiary protection, on the grounds that he could request
such a document from the authorities of his country of origin.
The applicant complains that this violated his rights under Article 8 (right to respect for private and
family life) of the European Convention on Human Rights and Article 2 of Protocol No. 4 (freedom of
movement) to the European Convention.
THE DECISION OF THE COURT…
Article 2 § 2 of Protocol No. 4:
(a) Applicability – This was the first case in which the Court had examined the refusal to issue a travel document to a foreign national. In the Court’s view, Article 2 of Protocol No. 4 to the Convention could not be considered to impose on Contracting States a general obligation to issue aliens residing on their territory with any particular document permitting them to travel abroad. At the same time, the Court emphasised that, under Article 2 § 2 of Protocol No. 4, the right to leave any country, including his own, was granted to “everyone”. The applicant lawfully resided in Lithuania and did not have any other valid identity documents than those that had been issued to him by the Lithuanian authorities. Further, as under domestic law the residence permit which he held did not give him the right to travel abroad, the applicant’s right to leave Lithuania would not be practical and effective without him obtaining some type of travel document. Lastly, Lithuanian law entitled lawfully resident foreign nationals to obtain an alien’s passport, provided that they met the relevant conditions. Article 2 of Protocol No. 4 was thus applicable.
(b) Merits – There had been an interference with the applicant’s right to freedom of movement. In particular, even though according to the relevant EU law, the applicant, being a permanent resident of Lithuania, had had the right to cross the borders between EU Member States without a travel document, such a document might, under certain circumstances, be necessary even when travelling within the Schengen zone. Moreover, without a valid travel document he had been precluded from going to countries outside the Schengen zone and outside the EU, including the United Kingdom where his children lived. That interference had been in accordance with the relevant domestic law. It was not, however, necessary to decide whether the impugned interference had pursued a legitimate aim, because in any event it had not been “necessary in a democratic society”, for the following reasons.
In the present case, unlike other cases examined to date by the Court under this provision which had concerned various measures aimed at precluding the applicants from leaving the country, the Lithuanian’s authorities had not sought to restrict the applicant from going abroad; their refusal to issue him with an alien’s passport had been based on the fact that he could have obtained a travel document from the Russian authorities.
The Court was unable to examine whether in the asylum proceedings the authorities had correctly assessed the risks allegedly faced by the applicant in his country of origin, as these proceedings, which had ended well over six months before this application had been lodged, were not the subject matter of case. Nor was it for the Court to decide on the correct interpretation or application of the domestic asylum law, assess its compatibility with the relevant EU directives or determine the status to which the applicant should have been entitled under domestic law. That being said, the Lithuanian authorities had acknowledged during a certain period of time and on a number of occasions, that the applicant could not safely return to his country of origin. Following the last such decision in 2008 the applicant had availed himself of the opportunity provided by law to obtain a more favourable residence permit. Therefore, the interruption in the regular granting of subsidiary protection to the applicant had resulted from circumstances unrelated to the situation in his country of origin or the reasons for which he had previously sought that status. Indeed, at no point had the domestic authorities decided, after assessing the situation in the applicant’s country of origin and his individual circumstances, that he had no longer been in need of subsidiary protection and that he could have approached the Russian authorities without fear.
Further, significant importance had been given to the fact that the applicant’s requests to grant him refugee status had been rejected and that he had not demonstrated any persecution directed at him personally. His claim, however, that he had been afraid to contact the Russian authorities, owing to the reasons for which he had previously been granted subsidiary protection, had not been adequately addressed in the domestic proceedings. Moreover, Lithuanian law had since acknowledged, albeit at a time when it no longer availed the applicant, that beneficiaries of subsidiary protection might have a well-founded fear to contact their national authorities; such fear was now considered an objective reason for not being able to obtain a travel document from those authorities.
In addition, for nearly ten years the Lithuanian authorities had accepted that the applicant had been unable to obtain a passport from the Russian authorities. Although the Government maintained that the subsequent refusal to issue him with a travel document had been based on the changed practice of the Russian authorities regarding the issuance of passports to Russian nationals residing abroad, there was no indication that the Lithuanian authorities had assessed whether that possibility had been accessible in practice to the applicant in the light of his individual circumstances, including the fact that he had lived in Lithuania for almost twenty years and had not had any valid Russian identity documents during that entire time.
Consequently, the refusal to issue the applicant with an alien’s passport had been taken without carrying out a balancing exercise and without ensuring that such a measure had been justified and proportionate in his individual situation. That refusal had been based on formalistic grounds, namely that he had not demonstrated that he was personally at risk of persecution and that he was not considered a beneficiary of asylum at that time, without adequate examination of the situation in his country of origin, as well as on the purported possibility of obtaining a Russian passport, without any assessment of whether that possibility had been accessible to him in practice in view of his particular circumstances.
Conclusion: violation (unanimously)
Article 41: EUR 5,000 in respect of non-pecuniary damage.
