LRT received a question from a listener after a radio programme on migrant detentions – “why is Lithuania the only country blamed for restricting the rights of migrants? Did Latvia and Poland follow the rules of the EU Court of Justice, but Lithuania did not?” Let’s look into it.
Firstly, the Court of Justice of the European Union does not itself create migration laws, but it can assess whether member states are complying with EU law. This is exactly what the court did last June when it ruled that detaining every person who crossed the border irregularly was not in line.
Later, in June this year, the Lithuanian Constitutional Court also mirrored the European court’s ruling, saying that putting people in de facto detention without a court’s order was unconstitutional. This then sparked calls among MPs for the interior minister to face impeachment.
But, let’s put things into context.
Is it the first time a country has “instrumentalised migration”?
The Lithuanian government’s defence of its policies rests on its claim that the situation is extraordinary and that the migrants it has been detaining or pushing back from the border are not “natural”, but the result – or even accomplices – of an orchestrated plot of a hostile regime.
In the summer of 2021, when Belarus began channelling migrants west, Baltic, Polish and (later) Brussels officials called it a “hybrid war” and “instrumentalised migration”. The consensus was that Alexander Lukashenko, the autocratic leader of Belarus, aimed to plunge his EU neighbours into chaos, forcing Brussels to reconsider sanctions placed in the wake of the regime’s brutal crackdown on the opposition.
Fast forward to 2023 and Vilnius wanted “instrumentalised migration” to be singled out in the EU’s new migration policy being chiselled out in Brussels. According to Lithuanian officials, such moves by authoritarian leaders and countries that aim to use people in geopolitical games deserve to be treated differently from what they call natural migration pressures in southern Europe.
But Belarus wasn’t the first country to do it.
The most prominent examples are of course Turkey and Morocco. At one point, In May 2021, thousands of people crowded the Spanish enclave in northern Africa, as Morocco was seeking to pressure Spain into handing over a rebel leader. Madrid then approved 30-million-euro aid to Morocco border policing, which was “reminiscent of Turkey’s deal with the European Union under which it was paid to stem the flood of migrants onto European shores”, according to the New York Times.
Further reading
So why do regimes see engineered migration as a feasible option for exerting pressure? According to researcher Kelly Greenhill, quoted in a Washington Post article, this approach unfortunately works – the regimes who tried it were successful in three-quarters of identified cases.
To put it simply, Western countries will throw cash at foreign governments to keep migration out of sight and mind.
What’s so unconstitutional?
On June 7, Lithuania’s Constitutional Court said detaining every person without due process was unconstitutional. In other words, you cannot put everyone in prison without a court order.
“The provisions of the Law on the Legal Status of Aliens that require all asylum seekers to be accommodated in specified places without being granted the right to move freely within the territory of Lithuania, when such accommodation may last up to six months, run counter to the Lithuanian Constitution,” said Gintaras Goda, president of the court.
The court, however, did not rule on the pushbacks, which remain some of the most contentious border control measures across the European Union.
“The Court of Justice of the European Union said that we are doing a bad job with both detentions and by not accepting asylum applications,” Laurynas Biekša, a lawyer, told LRT RADIO. “[Former president of the Constitutional Court Dainius] Žalimas has said that pushbacks are also unconstitutional, so it’s only a matter of time before the Constitutional Court says so too,” he added.
Vilnius officials say this isn’t entirely correct. They say the country is under attack and people are being pushed back precisely due to the context of the hostile regime next door, which is using security forces to usher people across the border. Presumably, things would be different if it was a natural flow of people. In the years before the 2021 crisis, Lithuania saw several hundred asylum claims annually.
Generally, pushbacks are illegal under international and EU laws. Basically, when a group of people enter a country irregularly, for example when they cross the forests and swamps into Lithuania, they are treated as a single group and are expelled together accordingly without the right to lodge an asylum claim.
But Lithuanian authorities say they are undertaking “turnarounds” (apgręžimai) by redirecting people back to Belarus. However, because the practice involves forcing people back across the border – as witnessed across the EU’s external border, including in Greece, Croatia, and elsewhere – much of the media, as well as NGOs and human rights advocates, call it “pushbacks” (atstūmimai).
Due to the pushbacks, the right to independent assessment and the right to ask for asylum is ignored. This is the case also in Latvia and Poland. The three countries were coordinating their response to the actions of the Minsk regime, including by declaring a state of emergency around the same time in 2021 and suspending regular asylum procedures.
Meanwhile, similar rhetoric acrobatics are used in reference to the de facto detentions. Lithuania calls it “temporary accommodation” (Laikinas apgyvendinimas), but even the EU court affirmed in its June 30 ruling last year that they were detentions.
Are hard border measures being normalised across the EU?
Hungary stood out in 2015 when it turned to hard border measures amid the refugee crisis. Publicly, European officials scolded the right-wing Fidesz government, while most member states went along with Angela Merkel’s “wir schaffen es” refugee-acceptance pledge.
But years after the 2015 crisis, the situation – and the sentiment toward migration in Europe – has completely changed.
“If we succeed in adopting a favourable [EU migration pact], non-admission of migrants will last up to 5 months,” up from the current 28 days, according to Arnoldas Abramavičius, Lithuania’s deputy interior minister.
Thus, a person who crossed the border irregularly could be detained for up to five months under EU law. “European law is changing, I think it will become more stringent,” Abramavičius told LRT RADIO.
The solidarity-based refugee-sharing algorithms since 2015 failed to work properly, with thousands of people being stranded in the receiving countries – mostly Greece, Italy, and Spain. During this time, Athens went through two migration policy scenarios, wrote Sarantis Michalopoulos, a journalist at the Brussels-based EurActiv news website.
“First is the handling of the migration crisis in 2015, when the then-leftist [Greek] government did not enforce pushbacks and received millions of refugees. Europe’s reply was to close Greece’s northern border in the Balkans, essentially isolating migrants and refugees to prevent them from moving to central Europe,” he wrote.
“A couple of years later, a conservative government faces smaller migration flows but growing accusations of applying pushbacks. All the while, it gets praise for protecting EU borders. Although the government in Athens firmly denies any involvement with pushbacks, evidence showing the opposite is piling up, including videos published widely online.”
His opinion article aptly summarises the allegedly changing perspective in Brussels – “Protect EU borders, but I don’t want to know how.”
Thus, when the Minsk regime opened yet another migration corridor, there was tacit and overt support for Lithuania’s hard border measures, even as human rights advocates and NGOs cried foul. When European Commissioner Ylva Johansson came to Lithuania, she said the country was obliged to prevent “non-authorised access to the Schengen area” and that's why the EU had to support Vilnius.
Baltic officials first spoke off-record about the behind-the-doors approval from Brussels, but are now going public about the alleged support.
“Let me remind you that we received a lot of support from the European Commission, EU agencies, member states and even third countries,” said Lithuanian Interior Minister Agnė Bilotaitė, claiming several weeks ago that the country's steps were approved and coordinated within the EU.
Will Lithuania’s interior minister go to prison?
The parliamentary opposition seized the moment provided by the Constitutional Court’s ruling, saying Interior Minister Agne Bilotaitė – who oversaw the crisis management – could be liable for impeachment.
These allegations echo the process that took place in Denmark in 2021, leading to the country’s former immigration minister, Inger Støjberg, being sentenced to two months in prison. The charge – a 2016 order signed by her separating asylum-seeking couples when one of them was underage.
She issued the instruction in February 2016, informing the parliament that “no minor-aged asylum seekers under 18 years of age can be accommodated together with their spouse or partner from now on.” She was later found to have violated the European Convention on Human Rights, as well as the Ministerial Responsibility Act for tampering with the lawmaking process and failing to adhere to legal warnings from inside the ministry.
Similarly, the opposition in Lithuania’s parliament says it will try to prove that Bilotaitė broke the constitution knowingly and failed to adhere to repeated warnings from international institutions.
But political observers say there are clear signs that the threats against Bilotaitė are no more than a political ploy at the hands of the opposition, which is eyeing the general election next year.
The situation in Lithuania also differs from what happened in Denmark, as the decisions taken in Vilnius at the height of the crisis were approved almost unanimously by the parliament, ie the same people who are now demanding the minister’s head. The amendments were later signed into law by the president.
“Why is Lithuania the only country blamed for restricting the rights of migrants? Did Latvia and Poland follow EU rules, but Lithuania did not?”
Now, onto the original question.
Lithuania is not the only country being accused of restricting the rights of migrants, the same allegations are levelled against multiple member states on Schengen’s outer borders. Following a ruling by the same EU Court of Justice, the European Commission even launched a legal process to sanction Hungary for its asylum policies.
Now, why was only Vilnius, and not Riga or Warsaw, mentioned by the EU court? It’s because it was a Lithuanian court that referred a national case, lodged by an Iraqi citizen over his prolonged detention, to the Luxembourg court asking to clarify EU law
No such cases were referred to the court from Latvia or Poland. If there were such referrals, the ruling would likely be the same, as “the court’s analysis and conclusions should apply directly to the situation in Latvia”, according to the Amnesty International NGO.
So, the answer is no – Lithuania is not the only one accused of violating EU laws.
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