CYIL vol. 15 (2024)

LENKA SCHEU, ANŽELIKA BANEVIČIENĖ impact of the determination of age on the right to personal liberty, it is necessary to determine the age thoroughly in order to dispel as far as possible any doubts as to the age, or rather the majority or minority, of the person concerned. Where doubts persist, the benefit of the doubt principle should be applied, and non-medical methods of determining age should be used, at least until a method providing sufficiently accurate results is available. Failure to comply with these requirements for the age determination process for a person who is detained (i.e., deprived of liberty) as an adult violates their right to personal liberty. Finally, the national courts do not forget the requirement established by EU law and the Court of Justice practice that state authorities should cooperate with asylum applicants to collect data required to prove their statements. In particular, the Supreme Administrative Court of Lithuania decisions in administrative cases No. eA-3258-822/2022 and No. eA 3544-463/2022 indicates that when the foreigner does not submit the original documents stating their age or submits documents that only allow the Lithuanian authorities to assume that the person is a minor and the foreigner cannot submit other documents, the Lithuanian authorities must cooperate with the foreigner and collect the documents from different countries directly. The courts relied on the CJEU case C-277/11 in both cases to support their opinion. 72 The CJEU analysed a situation where a Rwandan national of Tutsi ethnicity was rejected for asylum and subsidiary protection in Ireland because he could not prove his claim that he, upon return to his country of origin, could be prosecuted in a military court, and he had been severely affected by genocide in that his parents, three of his brothers, and one of his sisters were killed. The issue before the court was what the requirement for states to cooperate under Article 4(1) of Directive 2004/83 means. The CJEU’s explanations regarding the obligation to cooperate were directly cited by the Lithuanian courts. According to the Lithuanian courts, even though, as a rule, the foreigner must provide all the information necessary to substantiate their request, the state must cooperate with the applicant in determining the relevant information related to this request. The requirement to cooperate means that if, for any reason, the applicant for international protection has provided incomplete or insignificant information, the state must actively help the applicant obtain all the information supporting the application. The court thinks it can be easier for the state to receive certain documents and get acquainted with them than for the applicant. Conclusions International law, EU law, and national law show the significance of the foreigner’s age assessment. An insufficiently detailed and, therefore, incorrect assessment of the child’s age and their classification as an adult can lead to erroneous decisions in the fields of asylum and expulsion. Law and practice in Lithuania and the Czech Republic show that an age assessment relies on X-rays of different body parts. Experts in the Czech Republic analyse wrists, and experts in Lithuania analyse wrists and chests. In general, the age assessment procedure is similar in both countries. However, using slightly different assessment methodologies and credibility rules can result in the same person in one country being considered a minor but in another an adult.

72 Judgment of the Court of Justice of 22 November 2012, M. M. v. Minister for Justice, Equality and Law Reform and Others. , C-277/11, EU:C:2012:744.

116