CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 11 décembre 2018

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LITHUANIA   (Application no. 59793/17)                 JUDGMENT         STRASBOURG   11 December 2018     FINAL   11/03/2019   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of M.A. and Others v. Lithuania, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Ganna Yudkivska, President,   Paulo Pinto de Albuquerque,   Faris Vehabović,   Egidijus Kūris,   Georges Ravarani,   Marko Bošnjak,   Péter Paczolay, judges, and Andrea Tamietti, Deputy Section Registrar, Having deliberated in private on 16 October 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 59793/17) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by seven Russian nationals, Mr M.A. (“the first applicant”), Ms M.A. (“the second applicant”) and their five children (“the remaining applicants”), on 25 July 2017. The Court decided that the applicants’ identities should not be disclosed to the public (Rule 47 § 4 of the Rules of Court). 2.     The applicants were represented by Mr M. Matsiushchankau, a human rights activist residing in Minsk. The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė-Širmenė. 3.     The applicants alleged that the Lithuanian border authorities had refused to accept their asylum applications and initiate asylum proceedings, and that they had not had an effective remedy against those decisions. They invoked Articles 3 and 13 of the Convention. 4.     On 11 October 2017 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The first applicant was born in 1988, the second applicant was born in 1994 and the remaining applicants were born in 2010-2016. According to the last letter sent by their representative to the Court on 20 May 2018, they currently reside in Poland, where their asylum applications are under consideration. A.     Events in the Chechen Republic and the applicants’ first attempts to enter into Poland 6.     The applicants used to live in the Chechen Republic. As submitted by them, the events leading to their departure were as follows. 7.     In 2005-2006 the first applicant started having problems with the Russian security services. He believed that that was happening because his relatives had participated in the Second Chechen War. Officers from the district police came to his home and questioned him at a police station, and his home was raided by armed people wearing masks. In 2009 he decided to leave Chechnya and applied for international protection in Poland, and later moved to Austria. However, in 2010 he had to return to Chechnya. There, he started working in the State security system, where he participated in counter-terrorism operations and provided security to the highest officials of Chechnya. He quit that job in October 2015, but before that he and his mother were asked if he was planning to join illegal armed groups in Syria. In February   2017 he was taken to the headquarters of the department at which he worked and asked to become an informer; he refused. In March   2017 two police officers came to his home and forcefully took him to a police station, where he was again asked to become an informer and again he refused. Afterwards he was tortured – he was given electric shocks and beaten on the kidneys, head and other parts of his body. After that he agreed to become an informer and was released after five days of detention. Following the beating, the first applicant started suffering from health problems, such as pain in the kidneys and problems with his memory. 8 .     In April 2017 the applicants left Chechnya and went to Belarus with the aim of crossing into Poland. They submitted that they had attempted to lodge asylum applications several times on the Polish border, but each time the border guards had refused to accept their applications and returned them to Belarus (see M.A. and Others v. Poland , no. 42902/17, Statement of Facts and Questions to the Parties; see also paragraphs 22-26 below for further events and the applicants’ eventual acceptance into Poland). B.     Attempts by the applicants to enter into Lithuania 1.     Medininkai border checkpoint on 16 April 2017 9 .     On 16 April 2017, around noon, the applicants arrived at the Medininkai checkpoint on the border between Lithuania and Belarus. They submitted to the Court that they had told the border guards in Russian that they were seeking asylum, but asylum proceedings had not been initiated. 10 .     The State Border Guard Service (hereinafter “the SBGS”) issued decisions on refusal of entry in respect of all seven applicants. The decisions indicated that the applicants had been refused entry on the grounds that they did not have valid visas or residence permits. It was also indicated that the decisions could be appealed against before a regional administrative court within fourteen days. The decisions were written in Lithuanian and English. 11 .     The applicants were asked to sign the decisions. In the space for a signature on each of the seven decisions, the first and second applicants wrote “azul’” in Cyrillic ( азуль ) – they submitted to the Court that that word was often used by Chechen asylum seekers to mean “asylum”. 12 .     The border officer who was on duty at the Medininkai checkpoint that day submitted the following official report to a senior officer: “I hereby inform you that on 16 April 2017, at 12.15 p.m., at the Medininkai border checkpoint ... a Russian national [M.A.] ... who had arrived on foot ... was refused entry into Lithuania. The reason for refusal of entry – absence of a valid visa or residence permit. At 12.45 p.m. the alien was returned to Belarus. His documents were checked by a senior border officer [A.B.].” Reports with similar wording were drawn up with respect to each of the applicants. 13.     The applicants were returned to Belarus on that same day. They did not appeal against the decisions refusing them entry into Lithuania. 2.     Kena border checkpoint on 11 May 2017 14 .     On 11 May 2017, around noon, the applicants arrived at the Kena checkpoint on the border between Lithuania and Belarus. They submitted to the Court that they had told the border guards that they were seeking international protection and asylum and that the first applicant had been tortured in Chechnya. However, asylum proceedings were not initiated. 15 .     The SBGS issued decisions on refusal of entry in respect of all seven applicants, with the same content as before (see paragraph 10 above). The decisions were written in Lithuanian. The first and second applicants signed all seven decisions and wrote that the decisions had been translated into Russian. 16 .     The border officer who was on duty at the Kena checkpoint that day submitted the following official report to a senior officer: “I hereby inform you that on 11 May 2017 ... when I was examining the train [from Moscow to Kaliningrad], at around 12:00 p.m., the following Russian nationals [the applicants] submitted their documents for inspection. None of them had valid visas or residence permits, and therefore they were refused entry into the Republic of Lithuania. Seven refusal of entry decisions were issued in respect of these individuals ... At 3.10 p.m. the individuals were transferred to border officers of Belarus via the Medininkai border checkpoint.” 17.     The applicants were detained at the border checkpoint for several hours and then they were returned to Belarus. They did not appeal against the decisions to refuse them entry into Lithuania. 3.     Vilnius railway border checkpoint on 22 May 2017 18 .     On 22 May 2017, at around 10.20 p.m., the applicants arrived at the railway border checkpoint in Vilnius. They submitted to the Court that they had had with them a written asylum application in Russian, prepared by a Belarussian human rights organisation, and they had given that application to the Lithuanian border guards. They provided the Court with a copy of that application and a photograph of the application, together with their train tickets, taken on what they claimed to be the premises of the border checkpoint. However, asylum proceedings were not initiated. 19 .     The SBGS issued decisions on refusal of entry in respect of all seven applicants, with the same content as before (see paragraphs 10 and 15 above). The first and second applicants signed the decisions concerning them, but those concerning the children (the remaining applicants) were not signed. The decisions were written in Lithuanian and it was not indicated on them whether they had been translated into Russian. 20 .     The border officer who was on duty at the Vilnius railway checkpoint that day submitted the following official report to a senior officer: “I hereby inform you that on 22 May 2017 I was on duty at the Vilnius railway border checkpoint. At around 10.50 p.m. ..., upon the arrival of a passenger train [from Minsk to Vilnius], it was detected that nationals of the Russian Federation did not have valid Schengen visas or residence permits ... ... The above-mentioned individuals were returned via the Medininkai border checkpoint on 23 May 2017, at 4.24 a.m.” The report mentioned the names of the second applicant and three of the children. The Court has not been informed if a similar report was drawn up with regard to the first applicant and the other two children. 21.     The applicants were detained at the border checkpoint overnight, and in the morning of 23 May 2017 they were returned to Belarus. They did not appeal against the decisions refusing them entry into Lithuania. C.     Subsequent developments 22 .     Subsequently, the applicants again attempted to submit asylum applications in Poland, without success, and they lodged an application against Poland before this Court. On 16 June 2017 the Court decided to apply Rule 39 of the Rules of Court, indicating to the Polish Government that the applicants should not be removed to Belarus. However, it appears that they were removed (see M.A. and Others v.   Poland , Statement of Facts and Questions to the Parties cited above). 23.     The applicants’ stay in Belarus was legal until 10   July   2017. 24.     Between October and December 2017 the first applicant’s relatives in Chechnya received several summonses, addressed to him, obliging him to appear before the police. In December 2017 a summons was delivered to the first applicant in Belarus. He went to a police station there and was told that all the applicants had to leave Belarus. They returned to Russia at the end of December   2017. Soon afterwards the first applicant was detained. The second applicant had not been informed about the exact location of the first applicant’s detention. 25 .     In January 2018 the second applicant and the remaining applicants went to Belarus again and managed to submit asylum applications on the Polish border. They were admitted to a refugee reception centre in Poland to await the decision on their asylum applications. 26 .     In February 2018 the first applicant was released from detention in Russia. He submitted that he had not known where he had been held and that he had been beaten up by the staff at the detention facility. He provided the Court with photographs of bruises on his body which he claimed to have sustained in detention. In March 2018 the first applicant travelled to Belarus and managed to submit an asylum application on the Polish border. He joined the second applicant and the remaining applicants at a refugee reception centre in Poland to await the decision on his asylum application. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Law on the Legal Status of Aliens 27.     Article 2 § 18 3 of the Law on the Legal Status of Aliens (hereinafter “the Aliens Law”) defines an asylum application as a request to be granted asylum in the Republic of Lithuania, expressed by an alien in any form. Article 2 § 20 defines an asylum seeker as an alien who has submitted an asylum application in line with the requirements set out in the Aliens Law where a final decision in respect of that application has not yet been taken. 28 .     Article 65 provides that aliens have the right to seek and obtain asylum in Lithuania in line with the requirements set out in the Aliens Law. When there are indications that an alien who is in detention or at a border checkpoint or in the transit zone may wish to seek asylum, he or she must be informed, in a language that he or she understands, about such a right and the applicable procedures. 29 .     Article 67 § 1 provides that at border checkpoints and on territory subject to the legal regime relating to borders, an asylum application may be submitted the SBGS, and on any other territory of the Republic of Lithuania it may be submitted to the SBGS or a territorial police agency. Article   67 §   2 provides that an asylum seeker has to submit an application on his or her own behalf, and an application on behalf of minors may be submitted by an adult family member or a representative. 30 .     Article 69 §§ 1, 3 and 5 provide that an institution to which an asylum application has been submitted must, inter alia , note the date, time and place of the submission of such an application, interview the asylum seekers and assess whether they have any special needs, obtain their identity and travel documents, take their fingerprints, inspect their belongings, and within twenty-four hours forward all that information to the Migration Department. 31 .     Article 76 §§ 1 and 6 provide that the decision on whether to examine an asylum application on the merits is taken by the Migration Department within forty-eight hours of the submission of such an application. 32 .     Article 8 § 2 provides that a decision to deny an alien entry into Lithuania is taken by the SBGS, but such a decision cannot be taken with regard to an alien who has submitted an asylum application. Article   5   §   3 provides that when an alien submits an asylum application at a border checkpoint, the decision as to whether to allow him or her to enter into Lithuania is taken by the Migration Department. 33.     Article 67 § 5 provides that all decisions adopted in accordance with the Aliens Law must take into account the best interests of children and vulnerable persons. 34 .     Article 86 § 1 provides that refugee status is granted to an individual who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his or her nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it, unless there are reasons, provided in the Aliens Law, for which refugee status may not be granted (for example, when the individual is already receiving protection or assistance from organs or agencies of the United Nations other than UNHCR, or when there are serious grounds to believe that he or she has committed a war crime or a crime against humanity). 35 .     Article 87 § 1 provides that subsidiary protection is granted to an individual who is outside the country of his or her nationality and is unable to return to it owing to well-founded fear of torture or inhuman or degrading treatment or punishment; the death penalty or execution; or a serious and individual threat to his or her life or person by reason of indiscriminate violence in situations of international or internal armed conflict. 36 .     Article 130   § 1 provides that an alien cannot be removed to a country in which there is a risk to his or her life or liberty; or where he or she may be persecuted on the grounds of his or her race, religion, nationality, membership of a social group, or political beliefs; or from which he or she may be removed to another such country. Article 130 §   2 provides that an alien cannot be removed to a country in which he or she may be subjected to torture or cruel, inhuman or degrading treatment or punishment. 37.     Article 138 provides that decisions taken in accordance with the Aliens Law can be appealed against to a regional administrative court within fourteen days. Article 5 § 5 provides that during the time allowed for such an appeal, aliens have the right to remain in the territory of Lithuania and asylum seekers have the right to remain at the border checkpoint. 38 .     Article 139 §   1 provides that when an appeal is lodged, the impugned decision is suspended in the following instances: (1) the decision was to revoke an alien’s residence permit; (2) the decision was to decline to examine an asylum application submitted by an alien who had arrived in Lithuania from a safe third country; (3) the decision was to reject an asylum application (with some exceptions). Article 139 § 2 provides that, in other instances, an administrative court may order interim measures and suspend the impugned decision. B.     Order on Granting and Withdrawing Asylum 39.     The Order on Granting and Withdrawing Asylum in the Republic of Lithuania (hereinafter “the Order”) was issued by the Minister of Interior on 24   February 2016 and amended on 31 January 2017. Its point 19 provides that an asylum application is considered to have been submitted when it is submitted to one of the institutions listed in Article 67 § 1 of the Aliens Law and in line with the requirements of Article   67   §   2 of that Law (see paragraph 29 above). An asylum application has to be substantiated and has to present facts which demonstrate the asylum seeker’s well-founded fear of persecution or serious harm as defined by the Aliens Law (see paragraphs   34 and 35 above). If an asylum application is unsubstantiated, the reasons for its submission have to be established during the initial interview with the asylum seeker, in accordance with point 22.10 of the Order (see paragraph 43 below). 40.     Point 20 provides that if an asylum application is submitted to an institution which is not listed in Article 67 § 1 of the Aliens Law, or if it does not fulfil the requirements of Article   67   §   2 of that Law, within two days of that application being identified as an application for asylum, it is returned to the alien and he or she has to be informed about the procedure of submitting an asylum application. That information is provided to the alien in a language which he or she understands. 41.     Point 21 provides that an asylum application is considered accepted when an authorised official of the accepting institution registers the asylum application and the asylum seeker’s data in the Aliens Register. 42 .     Point 22.1 provides that when an asylum application has been submitted in writing, an authorised official must take the application from the asylum seeker and write on it the date, time and place of its submission. Point 22.2 provides that when an asylum application has not been submitted in writing, an authorised official must draw up a written report, indicating the information provided by the asylum seeker, the date, time and place of the submission of the application, and the name of the official who drew up the report. Point 22.7 provides that the authorised official must register the asylum application and the information about the asylum seeker in the Aliens Register. 43 .     Point 22.10 provides that the authorised official must conduct the initial interview with the asylum seeker and prepare the record of the interview, following the relevant form appended to the Order. The purpose of the initial interview is to collect information about the asylum seeker and his or her family members who have arrived together, their route to Lithuania, and their reasons for seeking asylum, among other things. Before the initial interview, the asylum seeker must be acquainted with, among other things, the purpose of the interview, the rights and duties of an asylum seeker, and the consequences of failing to comply with them. 44.     Point 23 provides that the actions listed in points 22.1 to 22.12 (see paragraphs 42 and 43 above) also have to be carried out outside of working hours. C.     Statute of the SBGS 45 .     The Statute of the SBGS at the Ministry of Interior was adopted by the Government of the Republic of Lithuania on 22 February 2001 and amended several times. At the material time, its point 13.6 provided that the duties of the SBGS included the organisation, coordination and control of the acceptance of asylum applications submitted at border checkpoints or on territory subject to the legal regime relating to borders, in accordance with the Aliens Law. D.     Regulations on Border Control 46 .     The Regulations on Border Control were adopted by the SBGS on 31 January 2012 and amended several times. At the material time and at present, their points 114.14 and 240.10 provide that the duties of senior shift officers include the duty to accept applications for asylum in Lithuania submitted by aliens. E.     Memorandum of Understanding between the SBGS, the UN High Commissioner for Refugees and the Lithuanian Red Cross 47 .     On 2 June 2010 the SBGS, the UN High Commissioner for Refugees (UNHCR) Regional Office for the Baltic and Nordic Countries, and the Lithuanian Red Cross signed a Memorandum of Understanding on cooperation when dealing with questions related to asylum seekers. Pursuant to Article   4 of that memorandum, the SBGS undertook to use all means necessary in order to ensure: that aliens who seek asylum have the appropriate conditions to submit asylum applications at border checkpoints; that asylum seekers are acquainted, in a language they understand, with their legal status in Lithuania and their right to State-guaranteed legal aid; that information about asylum proceedings, prepared by UNHCR or non-governmental organisations, is distributed at border checkpoints; that representatives of UNHCR are able to monitor the submission of asylum applications at the border and the ensuing actions of border officials; and that asylum seekers have the possibility to contact representatives of UNHCR. F.     Case-law of the domestic courts 48 .     On 14 September 2017 four Russian nationals arrived at the border of Lithuania by train from Belarus and were refused entry on the grounds that they did not have valid visas or residence permits; they were returned to Belarus that same day. Their representative lodged a complaint before an administrative court, arguing that the four individuals had submitted asylum applications at the border which the border guards had refused to accept. 49.     On 14 December 2017 the Vilnius Regional Administrative Court allowed the complaint in part and ordered the SBGS to allow the four individuals to enter into Lithuania and to submit asylum applications. The court stated: “In this administrative case there is no dispute that the appellants clearly expressed their wish to submit asylum applications and that they submitted such applications to officers of the SBGS ... However, the SBGS did not accept [the applications], without providing any reasons. At the court hearing, [the SBGS’s] representative explained that the appellants’ asylum applications had not been accepted because they had been unsubstantiated. The court notes that officers of the SBGS have a duty to accept asylum applications, irrespective of whether or not they are substantiated – [if applications are unsubstantiated, officers have to] conduct initial interviews with asylum seekers and clarify their reasons [for requesting asylum] (see points 19 and   22.10 of the Order on Granting and Withdrawing Asylum in the Republic of Lithuania, issued by the Minister of Interior on 24 February 2016). Officers of the SBGS may not remain inactive with respect to asylum seekers, as they did in this case. Accordingly, in this administrative case, having regard to the factual circumstances, it must be concluded that the SBGS did not take the proper action to ensure that asylum applications were accepted and examined, and it thereby breached the principle of good administration, as well as points 19 and 22.10 of the Order on Granting and Withdrawing Asylum in the Republic of Lithuania.” 50 .     On 14 February 2018 the Supreme Administrative Court upheld the lower court’s decision in its entirety. The court stated: “It being demonstrated that the appellants had submitted asylum applications but that [those applications] had not been examined in accordance with law, the Vilnius Regional Administrative Court made a lawful and well-founded conclusion that officers of the SBGS had a duty to accept asylum applications, irrespective of whether or not they were substantiated, and that the SBGS had breached the principle of good administration and points 19 and 22.10 of the Order on Granting and Withdrawing Asylum in the Republic of Lithuania. The appellants submitted their asylum applications to the appropriate institution, but the SBGS refused to accept them, without giving any reasons.” III.     RELEVANT INTERNATIONAL MATERIAL A.     The 1951 Geneva Convention relating to the Status of Refugees 51 .     The 1951 Geneva Convention relating to the Status of Refugees (hereinafter “the 1951 Refugee Convention”), together with the 1967   Protocol relating to the Status of Refugees, was ratified by Lithuania on 28 April 1997. The relevant parts of it provide: Article 1. Definition of the term “refugee” “A. For the purposes of the present Convention, the term ‘refugee’ shall apply to any person who:   ... (2) ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it ...” Article 31. Refugees unlawfully in the country of refuge “1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence ...” Article 33. Prohibition of expulsion or return (“ refoulement ”) “1. No Contracting State shall expel or return (“ refouler ”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.” B.     Recommendations of the UN High Commissioner for Refugees (UNHCR) 52 .     The UNHCR Executive Committee, at its twenty-eighth session held in October 1977, adopted the following recommendations: “[P]rocedures for the determination of refugee status should satisfy the following basic requirements: (i)   The competent official (e.g., immigration officer or border police officer) to whom the applicant addresses himself at the border or in the territory of a Contracting State should have clear instructions for dealing with cases which might come within the purview of the relevant international instruments. He should be required to act in accordance with the principle of non-refoulement and to refer such cases to a higher authority. (ii)   The applicant should receive the necessary guidance as to the procedure to be followed. (iii)   There should be a clearly identified authority – wherever possible a single central authority with responsibility for examining requests for refugee status and taking a decision in the first instance. (iv)   The applicant should be given the necessary facilities, including the services of a competent interpreter, for submitting his case to the authorities concerned. Applicants should also be given the opportunity, of which they should be duly informed, to contact a representative of UNHCR ...” 53 .     In 2016, during the second cycle of the Universal Periodic Review in respect of Lithuania, UNHCR provided the following submissions to the Office of the High Commissioner for Human Rights: “ III. KEY PROTECTION ISSUES, CHALLENGES AND RECOMMENDATIONS Issue 1: Admission to the territory and access to asylum procedures As result of the implementation of the Memorandum of Understanding on border monitoring activities, authored by the SBGS, UNHCR and the Lithuanian Red Cross in 2010, a greater number of persons seeking international protection have been identified at the Lithuanian border. Nevertheless, some concerns regarding access to the territory and asylum procedure remain. For example, in a non-pecuniary damage case, the Supreme Court of Lithuania has established that, despite sufficiently clear articulations of protection related reasons for their flight, two Afghan nationals were denied access to the asylum procedure. Instead they were prosecuted and placed in pre-trial custody in relation to irregular border crossing. UNHCR is aware of other similar instances whereby delays in accessing asylum procedures have occurred. ... UNHCR emphasizes that a wish to apply for protection does not need to be expressed in any particular form and that the word “asylum” does not need to be used expressly. Any expression of fear of return to one’s home country is enough to indicate a possible need for asylum. Therefore, where there are indications that third-country nationals or stateless persons fear return to their home countries or countries of prior habitual residence, the representatives of the SBGS must provide them with information on asylum procedures, register their asylum applications without delay, and refer those cases to the central determining authority. Recommendation: UNHCR recommends that the Government of Lithuania: a.   Ensure that persons who may seek international protection are proactively identified, including at border-crossing points and detention facilities, provided with information about the asylum procedure, registered as asylum-seekers, and referred to the determining asylum authority without delay.” IV.     RELEVANT COUNCIL OF EUROPE DOCUMENTS 54.     The relevant parts of Recommendation No. R (81) 16 of the Committee of Ministers to member States on the harmonisation of national procedures relating to asylum, adopted on 5 November 1981 at the 339 th meeting of the Ministers’ Deputies, provide: “1.   All asylum requests shall be dealt with objectively and impartially. 2.   The decision on an asylum request shall be taken only by a central authority. 3.   Clear instructions for dealing with asylum requests with a view to their being forwarded to the central authority shall be given to the authorities responsible for frontier control, as well as to local authorities called upon to deal with such requests. These instructions shall in particular: i.   draw the attention of the said authorities especially to the obligation to respect the principle of non-refoulement ; ii.   require these authorities to provide the central authority with all possible information with a view to the examination of the request; iii.   emphasise the need to take into consideration the particular situation in which the asylum seeker finds himself, including, as the case may be, difficulties he might experience in presenting his request. 4.   As long as the central authority referred to in paragraph 2 has not taken a decision on the asylum request, the applicant shall be allowed to remain in the territory of the state, unless the competent central authority has established that the request is manifestly based on grounds having no connection with asylum, in particular that it is fraudulent or is related neither to the criteria for the granting of refugee status laid down in Article 1.A(2) of the 1951 Geneva Convention nor to other criteria justifying the granting of asylum. ...” 55 .     The relevant parts of Recommendation No. R (98) 15 of the Committee of Ministers to member States on the training of officials who first come into contact with asylum seekers, in particular at border points, adopted on 15 December 1998 at the 652nd meeting of the Ministers’ Deputies, provide: “... Bearing in mind that, in order to fulfil their important tasks in an effective manner and to prevent refoulement and the turning away of the asylum seeker at the border as well as to ensure unimpeded access to the asylum procedure by those seeking asylum, officials who first come into contact with asylum seekers, in particular those fulfilling their duties at border points, need appropriate and adequate, initial and in-service training on how to recognise requests for protection and handle specific situations in connection with asylum seekers; ... Recommends to member states that officials who first come into contact with asylum seekers should receive training on how to recognise requests for protection and handle specific situations in connection with asylum seekers. 1.   For those of such officials who are required to refer these asylum seekers to the competent asylum authority, their training should lead to the acquisition of: 1.1.   basic knowledge of the provisions of national legislation related to the protection of asylum seekers and refugees, including the relevant administrative issues and knowledge of internal instructions, wherever applicable, on how to deal with asylum seekers; 1.2.   basic knowledge of the provisions of the 1951 Convention and 1967 Protocol Relating to the Status of Refugees and general principles of refugee protection as provided by international law, in particular the prohibition of refoulement and the situation of refugees staying unlawfully in the country of refuge; 1.3.   basic knowledge of the provisions relating to the prohibition of torture and inhuman or degrading treatment or punishment as enshrined in the European Convention on Human Rights; 1.4.   basic knowledge concerning limitations under national and international law to the use of detention; 1.5.   skills to detect and understand asylum requests even in cases where asylum seekers are not in a position clearly to communicate their intention to seek asylum, as well as basic communication skills concerning how to address asylum seekers, including those with special needs; 1.6.   the skill to make the correct choice and use of an interpreter when necessary. ...” V.     RELEVANT EUROPEAN UNION LAW 56 .     Relevant provisions of the Charter of Fundamental Rights of the European Union read: Article 18. Right to asylum “The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union (hereinafter referred to as ‘the Treaties’).” Article 19. Protection in the event of removal, expulsion or extradition “... 2.   No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.” 57 .     The relevant parts of Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (“the Schengen Borders Code”) provide: “... (36) This Regulation respects fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. It should be applied in accordance with the Member States’ obligations as regards international protection and non-refoulement ...” Article 3. Scope “This Regulation shall apply to any person crossing the internal or external borders of Member States, without prejudice to: ... (b)   the rights of refugees and persons requesting international protection, in particular as regards non-refoulement .” Article 4. Fundamental Rights “When applying this Regulation, Member States shall act in full compliance with relevant Union law, including the Charter of Fundamental Rights of the European Union (‘the Charter’), relevant international law, including the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 (‘the Geneva Convention’), obligations related to access to international protection, in particular the principle of non-refoulement , and fundamental rights. In accordance with the general principles of Union law, decisions under this Regulation shall be taken on an individual basis ...” Article 14. Refusal of entry “1.   A third-country national who does not fulfil all the entry conditions ... shall be refused entry to the territories of the Member States. This shall be without prejudice to the application of special provisions concerning the right of asylum and to international protection or the issue of long-stay visas. 2.   Entry may only be refused by a substantiated decision stating the precise reasons for the refusal. The decision shall be taken by an authority empowered by national law. It shall take effect immediately. ... 3.   Persons refused entry shall have the right to appeal. Appeals shall be conducted in accordance with national law. A written indication of contact points able to provide information on representatives competent to act on behalf of the third-country national in accordance with national law shall also be given to the third-country national. Lodging such an appeal shall not have suspensive effect on a decision to refuse entry ...” Article 16. Implementation of control “1.   The border control ... shall be carried out by border guards in accordance with the provisions of this Regulation and with national law. ... Member States shall ensure that the border guards are specialised and properly trained professionals ... Training curricula shall include specialised training for detecting and dealing with situations involving vulnerable persons, such as unaccompanied minors and victims of trafficking. Member States ... shall encourage border guards to learn the languages necessary for the carrying-out of their tasks ...” 58 .     The relevant parts of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (“the Qualification Directive”) provide: Article 2. Definitions “... (f) ‘person eligible for subsidiary protection’ means a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) does not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country; ...” Article 15. Serious harm “Serious harm consists of: (a) the death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.” Article 21. Protection from refoulement “1. Member States shall respect the principle of non-refoulement in accordance with their international obligations ...” 59 .     Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 (“the Dublin Regulation”) establishes the criteria and mechanisms for determining the member State responsible for examining an application for international protection lodged in one of the member States by a third-country national or a stateless person. Its Chapter III sets out the rules of establishing the member State responsible for examining asylum applications submitted by the following categories of individuals: unaccompanied minors; those whose family members have been granted or have applied for international protection in a member State; those who have a valid visa or a residence permit in a member State; those who have irregularly crossed the border into a member State; those for whom the requirement to have a visa has been waived in a member State; and those who have applied for international protection in an international transit area of an airport. Article 3 § 2 provides that where no member State responsible can be designated on the basis of the criteria set out in Chapter III, the first member State in which the application for international protection was lodged shall be responsible for examining it. 60 .     The relevant parts of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (“the Asylum Procedures Directive”) provide: Article 6. Access to the procedure “1.   When a person makes an application for international protection to an authority competent under national law for registering such applications, the registration shall take place no later than three working days after the application is made. If the application for international protection is made to other authorities which are likely to receive such applications, but not competent for the registration under national law, Member States shall ensure that the registration shall take place no later than six working days after the application is made. Member States shall ensure that those other authorities which are likely to receive applications for international protection such as the police, border guards, immigration authorities and personnel of detention facilities have the relevant information and that their personnel receive the necessary level of training which is appropriate to their tasks and responsibilities and instructions to inform applicants as to where and how applications for international protection may be lodged ...” Article 8. Information and counselling in detention facilities and at border crossing points “1. Where there are indications that third-country nationals or stateless persons held in detention facilities or present at border crossing points, including transit zones, at external borders, may wish to make an application for international protection, Member States shall provide them with information on the possibility to do so. In those detention facilities and crossing points, Member States shall make arrangements for interpretation to the extent necessary to facilitate access to the asylum proced