Lithuania's pushbacks of Cubans into freezing forests cast long shadows over rights

In their quest for asylum, Dianalay Gonzalez Castaneda and her three friends spent more than a week in the forests between Lithuania and Belarus, in what authorities have framed as a hybrid attack by Belarus.

Pushed back multiple times, a Lithuanian officer had allegedly placed a taser to the back of her head and walked her into the cold forest. Her protection order from the European Court of Human Rights was ignored by the guards. Suffering from frostbitten feet, Castaneda could barely walk.

"They told us to go back to Cuba. They then took photos of us," she says, before breaking down in an interview last month with EUobserver.

"My mind was in a shock. In the end I was without shoes. I was really at the point that I cannot walk more, I said to my friend, leave me here, I will die here," she says.

Today, the 29-year old Cuban works as a Spanish teacher in Lithuania after receiving asylum. But her ordeal with Lithuanian border guards, along with three other young Cuban nationals in early April of 2022, continues to haunt her.

On 12 February, the European Court of Human Rights in Strasbourg will hear oral arguments on the alleged repeated collective expulsions and arbitrary detention of the four Cubans.

It is the first of 30 pending cases at the grand chamber, posing key rights questions at a time when the European Union is looking for "innovative solutions" to prevent people from arriving at its external borders.

Others in comparable circumstances had lost limbs to frostbite, including a Syrian with a broken jaw who had his legs amputated from the knees down. Many have died, sometimes in mysterious ways.

One Sri Lankan was reportedly abducted from a hotel in Lithuania's capital city Vilnius by plainclothes officers and later found dead in the forests near Belarus.

But Castaneda's case also sheds light on what the European Commission says is a larger ploy by Belarus and Russia to deliberately stoke tensions with EU states by forcing over prospective asylum seekers.

European Commission president Ursula Von der Leyen describes the pressure on the eastern borders as the weaponisation of migrants, implicitly condoning illegal pushbacks in the name of national security.

The 'weaponisation' wording is not incidental.

What was once called instrumentalisation, a legal concept embedded into the EU new asylum reforms, came with some restrictions. Buy 'weaponisation' as a separate term also purports to give arbitrary power to the executive to ban asylum, said Steve Peers, a professor of EU and Human Rights Law, Royal Holloway University of London.

The description is likely to play well in Von der Leyen's Germany where constituents, in light of a deadly Christmas market attack by a Saudi national, has further boosted the far-right Alternative for Germany ahead of February elections.

Baltic nations, including Poland, have also long complained of Belarus and Russia of forcing migrants to cross land borders as they erect barriers and fences complete with high-tech EU-funded surveillance equipment.

In 2022, when Castaneda was walked into the forests by Lithuanian border guards, Vilnius registered over 11,200 pushbacks into Belarus (compared to around 8,000 in 2021). Some 200 were allowed to apply for asylum and most of those were citizens from Belarus and Russia.

But the details surrounding Castaneda's efforts to seek asylum in Europe suggests there was no master Kremlin or Minsk inspired plot to destabilise the EU. Instead, she found herself in an increasingly desperate situation that offered few alternatives when member states were welcoming hundreds of thousands of refugees from Ukraine given Russia's large-scale invasion in February 2022.

Trained as a lawyer, she fled Cuba in late December 2021 after taking part in the largest anti-government protests since the 1959 revolution. Many of those detained by government security forces were beaten and held in incommunicado. Some were sentenced to 25 years, according to Human Rights Watch.

With no visa and paperwork restrictions and fearing imminent arrest, Castaneda hastily flew to Moscow on 30 December. Russians then exploited her, she says, including corrupt police offers that demanded bribes.

Around two months later, she was evicted from housing with several other Cubans in the middle of winter. Asylum in Russia was not an option, fearful Moscow would send her back to Cuba, she says.

She then bought a ticket to Serbia but the flight was later cancelled after the EU shut airspace for Russian-owned, Russian-registered and Russian-controlled aircraft. Along with three other Cubans, they then opted for Belarus.

Lithuania has an embassy representative in Minsk where one can apply for asylum. But in practice, it is dysfunctional and risky, according to a Lithuanian Red Cross report. A Cuban had once tried but was deported back to Havana by Belarus without any decision taken on his application.

Castaneda and her friends first crossed from Belarus without incident on 31 March at Adutiškis, a small Lithuanian border town. After requesting asylum, Lithuanian border guards interrogated them.

"They were pushing us, screaming at us and telling us to go back to communist Cuba or Russia. It's like you don't understand the hate," she says.

They were then driven to the forest and told, at gun point, to walk towards Belarus. Soon they met two Belarus border guards, followed them through the forest and were ordered into an old car with masked people, she says.

They drove for hours until one of them Google Translated on a phone the following message: "'walk or we will hurt you." In the dark, they ran into the woods and waited until the light of day. But once in Lithuania, they were pushed back again.

Desperate, they reach out to the Lithuanian Red Cross who put them in contact with Sienos Grupė, a non-governmental organisation. Sienos Grupė arrived on site, brought them hot soup and warm clothes.

The NGO had also organised a protection order from the European Court of Human Rights, which was sent as a text message onto Castaneda's phone the same day.

Relieved, the group of four were taken again by the Lithuanian guards on the understanding they would go to a centre to have their claims heard. But instead, they were once again driven to the border and forced into Belarus.

"I explain on Google Translate that we have a court order and protection, and ask why they are taking us to the border again. At this moment, the chief border guard puts a taser to the back of my head and forces me to walk into the forest. And again they told us to go back to Cuba," says Castaneda.

Their SIM cards had also been removed from their phones, she says. They are later found by two young Lithuanian border guards, who carried Castaneda out of the forest.

The same officer who had previously put a taser to the back of her head was also present, she says. They were then given water and driven to a hospital.

Human Errors

Lithuania's state border guard says there had been a miscommunication about the court order, claiming they were unable to verify its authenticity. Given it was a Saturday, when public employees are not working, was also a factor in what they describe as a series of human errors.

Within days, the story had been picked up in Lithuanian media and debated at a committee in Lithuania's parliament.

"They [border guards] just simply did not believe that the Cubans had the decision when they showed it on their screen," said Emilija Svobaite, a rights lawyer who is also part of the Sienos Grupė network. Svobaite said it was the second time the officers had pushed back people despite the Strasbourg court protection order.

For its part, Vilnius says people can apply for asylum at official crossing points on the Belarus border. But the Lithuanian Red Cross says it is fraught with obstacles.

People are not allowed to approach checkpoints by foot or bicycle. One Cuban family, including a pregnant woman, were stuck at the Belarus side of the border for two days until they found transport to cross, says Svobaite.

The clampdown followed national security narratives to justify the adoption of a state of emergency in 2021, as well as legal “reforms” to prevent asylum seekers from entering Lithuania. The state of emergency, enforced since July 2021, has been constantly renewed and bans people from lodging asylum requests if they enter the country irregularly.

The European Court of Justice slammed Lithuania in June 2022, stating a person could not be denied asylum just because they did not cross an official border point even in the event of a declaration of an emergency due to a ‘mass influx of aliens’.

What had previously been a ministerial decision was then entrenched into law in 2023. Adopted in May 2023, the law allows the state to carry out pushbacks if more than 30 people arrive daily at the border or if at least 100 asylum requests are lodged per day for at least three days in a sequence.

Specifically, it says pushbacks are allowed if "there are sufficient grounds for believing that the crossing of the State border of the Republic of Lithuania at undetermined places, at undetermined times or in undetermined procedures is artificially organised, promoted or permitted with the participation of neighbouring States and/or their authorities, persons acting with their knowledge".

And although the 2023 law included a list of exceptions for people arriving from countries embroiled in war, Agnė Bilotaitė, Lithuania's ministry of interior at the time, described them as pull factors. Ultimately, the list was not adopted. She had also accused migrants of deliberately going barefoot in winter.

"The fact that a person arrives without shoes or warm clothing is not a reason for them to enter the Republic of Lithuania," she said, in comments made in late 2022. By November of the following year, seven people had their limbs amputated due to frostbite, according to Lithuania's state border guards.

Pushbacks

The latest pushback figures have since dropped dramatically to just over 1,000 for 2024, posing questions on how the state can still declare an emergency.

"Unofficially, basically, you can divide that number at least by four," says Svobaite, noting that a person is often counted multiple times. She also says Lithuania's border guard inflate the numbers by counting people they see on the Belarus side.

"They don't even meet them, they don't even talk to them. They just see them being behind the border, our actual physical barrier, right behind the fence and they take it into account as a pushback," she says.

Asylum requests have also dropped to below pre-crisis levels.

Some 575 requests were lodged for the year 2023, below the 646 in 2019, and after peaking at 4,259 in 2021. Last year, only 53 people who crossed irregularly asked for asylum and thirty-eight of those were from Belarus.

To complicate matters, the European Commission indirectly weighed in on the upcoming February cases at the European Court of Human Rights, including Castaneda's. In December, they released a communication on hybrid threats that some experts say aim to influence the Strasbourg judges.

"The timing and rather rushed nature of the communication suggests this; the content strongly resembles the arguments made by the state parties which are intervening in these cases. No doubt a coincidence," wrote Catherine Woollard, who chairs the Brussels-based European Council on Refugees and Exiles, in an op-ed.

Daria Sartori, a human rights lawyer and director and co-founder of Pro Iura, a hub for pro bono human rights litigation, says the upcoming ruling on Castaneda's case will have significant impact which could influence subsequent cases and policies.

The case, she says, revolves around rights that are absolute, citing the right to life and freedom from torture and inhuman or degrading treatment in the European Convention on Human Rights.

Sartori says no derogation from those rights can be made even in times of war or other public emergencies that threatens the nation.

"We hope that the court will reaffirm states’ duty to continue to uphold universal human rights, even in challenging political circumstances, " she said.