CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ MIGRATION FROM BELARUS TO LITHUANIA, POLAND, LATVIA IN 2021–2022 … As the question about the entry, physical entry to the territory of Lithuania does not automatically mean “legal” entry to Lithuania, as evidenced by the text of Law on the Legal Status of Aliens, as the person is not considered having entered Lithuania, if he/she is temporarily held in border crossing points, transit zones or special detention places for illegal migrants. Eventually the entry to Lithuania is presumed after 28 days of detention in such locations. Thus, in this case only the criterion of a person physically being on the territory of the state would not be satisfied in such case. States are obliged not to return any person over whom they exercise jurisdiction to a risk of irreparable harm. “In determining whether a State’s human rights obligations with respect to a particular person are engaged, the decisive criterion is not whether that person is on the State’s national territory, or within a territory which is de jure under the sovereign control of the State, but rather whether or not he or she is subject to that State’s effective authority and control.” 66 Thus, in a decision in which it examined the circumstances in which the obligations under the European Convention apply extraterritorially, the European Court of Human Rights held that while, “from the standpoint of public international law, the jurisdictional competence of a state is primarily territorial”, it may extend extraterritorially if a State, “through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the government of that territory, exercises all or some of the public powers normally to be exercised by that government.” 67 Only “in exceptional circumstances may this presumption be limited, particularly where a State is prevented from exercising its authority in part of its territory.” 68 UNHCR has stated that a “situation in which a person is brought under the “effective control” of the authorities of a State if they are exercising their authority outside the State’s territory may also give rise to the extraterritorial application of Convention obligations.” 69 The jurisprudence of the ECtHR illustrates the tension between different obligations in international treaties regarding the non-refoulement and prohibition of collective expulsion and the protection of national borders and national security. The question of jurisdiction was discussed in the case N.D. and N.T. v. Spain, where a similar situation occurred, where the persons stormed the fences erected at the border with Morocco in a Spanish enclave in African continent (city of Melilla) and later where escorted by Spanish border guards to Moroccan territory and transferred to the jurisdiction of Moroccan border guards. The applicants in the case alleged that they had not undergone any identification procedure and had had no opportunity to explain their personal circumstances or to be assisted by lawyers or interpreters. 70 66 SIRKECI, I., LANA DE FREITAS CASTRO, E., SEZGI SÖZEN, Ü. Migration Policy in Crisis (Transnational Press London 2018), p. 96. 67 Bankovic et al. v. Belgium and 16 other contracting States (Admissibility) , Application No. 52207/99 (ECtHR, 12 December 2001), para. 59; The UN Refugee Agency (n 65), p. 18. 68 Case of N.D. and N.T. v. Spain (Grand Chamber) , Applications nos. 8675/15 and 8697/15 (EctHR, 13 February 2020), para. 103. 69 The UN Refugee Agency (n 65), p. 19. 70 Case of N.D. and N.T. v. Spain (Grand Chamber) , Applications nos. 8675/15 and 8697/15 (EctHR, 13 February 2020), para. 25.

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