CEDH · CASELAW;COMMUNICATEDCASES;ENG — 18 mars 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s5FFF0A75 { margin-top:0pt; margin-bottom:0pt; font-size:7pt } .sC68F823F { width:113.7%; border-collapse:collapse } .s5F0BC093 { width:8.46%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .sFAF4C4CE { width:25.42%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s817AE20C { width:20.34%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .sD6B50B0D { width:18.66%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s65AD88B6 { width:27.12%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .sBD7689E2 { width:8.46%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s9E4D7BE9 { width:25.42%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .sADA854A5 { width:20.34%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .sDA48E3F3 { width:18.66%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .sF45A8C2B { width:27.12%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } Published on 8 April 2024   SECOND SECTION Application no. 27534/23 D.I. and Others against Lithuania lodged on 1 July 2023 communicated on 18 March 2024 SUBJECT MATTER OF THE CASE The application concerns administrative liability for unauthorised presence in the border area. The applicants are volunteers of Sienos Grupė (Border Group), a non-governmental organisation providing humanitarian assistance to vulnerable asylum seekers and people in distress at the border. At the material time, a state of emergency had been declared in the areas along the Lithuanian borders with Belarus and Russia (Kaliningrad) and it was prohibited to enter those areas without an authorisation of the State Border Guard Service (“the SBGS”). On 24 December 2021 Sienos Grupė received a telephone call from a person who stated that he was in a forest near the Lithuanian-Belarusian border, that he was very cold and could not walk. The applicants arrived in the area in question, provided him with food and warm clothes and called an ambulance, which took him to the hospital. The SBGS fined the applicants 65   euros (EUR) each for the administrative offence of violating the legal regime of the border area (Article   536   §   1 of the Code of Administrative Offences). That offence was punishable by a warning or a fine between EUR   40 and 90. The applicants appealed against the decisions of the SBGS with the courts. They contended that their actions had been justified by necessity, as provided in Article   16   §   1 of the same Code –namely, they had sought to help a person in a life-threatening situation. In a decision of 30 September 2022, the Alytus District Court found that the applicants had committed the impugned administrative offence. It held that their actions had not been justified by necessity because they had not been qualified to provide medical help to the person in distress – such help had been provided by the staff of the ambulance, which the applicants could have called without entering the border area themselves. However, the court quashed the fines and instead gave each applicant a warning. On 15 December 2022 the Kaunas Regional Court endorsed the findings of the lower court. The applicants lodged a request with the Supreme Court to reopen the administrative-offence proceedings, arguing that the courts had committed a material breach of the law. On 25   January 2023 the Supreme Court refused that request, finding no grounds to believe that a material breach of the law had been committed. The applicants lodged a second request for reopening, but on 3 April 2023 the Supreme Court refused it as being repetitive. In October 2022 one of the applicants, M.Š., asked to be included in the list of people authorised to enter the border area. It appears that the SBGS refused his request, on the grounds that he had committed the above-mentioned administrative offence. The applicants complain under Article 6 § 1 of the Convention that the domestic courts’ decisions were manifestly arbitrary; under Article 7 of the Convention that the courts’ refusal to exempt them from administrative liability on the grounds of necessity was unforeseeable; and under Article 11 of the Convention that the administrative penalties interfered with the activities of their association. QUESTIONS TO THE PARTIES 1.     Have the applicants complied with the time-limit laid down in Article   35   §   1 of the Convention? In particular:   (a)     Was a request for the reopening of the administrative-offence proceedings a remedy which the applicants needed to exhaust? In particular, could that remedy be characterised as “extraordinary” (see Nicholas v.   Cyprus , no. 63246/10, § 37, 9 January 2018, and the cases cited therein)?   (b)     Was the applicants’ second request for the reopening of the administrative-offence proceedings lodged in compliance with the formal requirements and time-limits laid down in domestic law, as required under Article 35 § 1 of the Convention (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25 March 2014, and, mutatis mutandis , Beinarovič and Others v. Lithuania , nos.   70520/10 and 2 others, §§ 118-19, 12 June 2018)?   2.     Was Article 6 § 1 of the Convention applicable to the administrative-offence proceedings under its civil or criminal head?   3.     Without prejudice to the answer to the previous questions and assuming that Article 6 § 1 of the Convention was applicable, did the applicants have a fair hearing in the administrative-offence proceedings? In particular, could the domestic courts’ refusal to exempt them from administrative liability on the grounds of necessity be regarded as “arbitrary or manifestly unreasonable” (see Moreira Ferreira v. Portugal (no. 2) [GC], no.   19867/12, §§ 83-84, 11 July 2017, and the cases cited therein)?   4.     Without prejudice to the answer to the previous questions and assuming that the applicants were found “guilty of a criminal offence” within the meaning of the Convention, was the domestic courts’ refusal to exempt them from liability on the grounds of necessity foreseeable, as required by Article   7 of the Convention (see Yüksel Yalçınkaya v. Türkiye [GC], no.   15669/20, §§   237-42, 26 September 2023, and the cases cited therein; see also, mutatis mutandis , Custers and Others v. Denmark , nos. 11843/03 and 2 others, §§   95-97, 3 May 2007, and Parmak and Bakır v. Turkey , nos.   22429/07 and   25195/07, §§ 76-77, 3 December 2019)? The parties are asked to provide relevant examples of domestic case-law on the application of the necessity defence.   5.     As to the applicants’ complaint under Article 11 of the Convention:   (a)     Has there been an interference with their right to freedom of association on account of the administrative penalties given to them (see Ecodefence and Others v.   Russia , nos. 9988/13 and 60   others, §§ 80-81, 14   June 2022, and, mutatis mutandis , Işıkırık v.   Turkey , no. 41226/09, §   69, 14 November 2017)? In particular, under domestic law, may the fact that the applicants were found liable of the administrative offence under Article   536   §   1 of the Code of Administrative Offences preclude them from participating in any of the activities of Sienos Grupė ?   (b)     Was the alleged interference prescribed by a law that was sufficiently accessible and foreseeable, as required under Article   11   §   2 of the Convention (see Kazan v.   Türkiye , no. 58262/10, §§   59-61, 6 June 2023, and the cases cited therein)?   (c)     Did the alleged interference pursue a legitimate aim and was it necessary in a democratic society, as required under Article 11 § 2 of the Convention? In particular, did it correspond to a “pressing social need” and was it proportionate to the aim pursued (see Gorzelik and Others v.   Poland [GC], no. 44158/98, §§   94-96, ECHR 2004-I)?       APPENDIX (anonymity has been granted) Application no. 27534/23 No. Applicant’s Name Year of birth Nationality Place of residence 1. D.I. 1974 Lithuanian Vilnius 2. M.Š. 1987 Lithuanian Molėtų raj. 3. V.V. 1988 Serbian Vilnius