Grounds for detention

Author

Nikola Kovačević

Detention of asylum seekers

An asylum seeker can be detained by a decision of the Asylum Office, when it is necessary to:[1]

• Establish their identity or nationality;
• Establish material facts and circumstances relevant to their asylum application, which cannot be established without the restriction of movement, particularly if there is a risk of absconding;[2]
• Ensure their presence in the course of the asylum procedure, if there are reasonable grounds to believe that their asylum application was submitted with a view to avoiding deportation;
• Ensure the protection of security of the Republic of Serbia and public order in accordance with the law;
• Decide, in the course of the procedure, whether they have a right to enter the territory of the Republic of Serbia.

Asylum seekers can be also detained in case of non-compliance with the obligations envisaged in Article 58 of the Asylum Act which are related to the respect of the House Rules in Asylum and Reception Centres and inadequate cooperation with the Asylum Office during the asylum procedure.[3]

In practice, the Asylum Office rarely orders the detention of asylum seekers. Not a single detention order was issued in 2021 on those grounds, but there were four detention decisions in 2022 plus another one which was related to the subsequent asylum application of a Turkish national who was detained as irregular migrant by the MoI and not Asylum Office. The two cases are similar because they were both subjected to extradition proceedings to their countries of origin, they applied for asylum but did not receive appropriate legal assistance from their representative, they were assessed as national security threats by BIA and their forcible removal are being examined by the CAT, which also issued interim measures. The case of Mr. E.P., Turkish national has to be considered as a case of arbitrary detention since he was not detained under the Asylum Act, but under the Foreigners Act even though his subsequent asylum application was pending.[4]

Case of immigration detention of E.P.

E.P. is a Turkish political dissident accused of being a member of a terrorist organization in Türkiye, who was facing extradition to his country of origin for almost two years. He was detained in DC Padinska Skela for the maximum period of 6 months by the MoI.[5] Interestingly, he was not detained by the Asylum Office, even though he lodged a subsequent applicant and, thus, has the status of an asylum seekers. Instead, he was detained as irregular migrant and was served with an expulsion order in accordance with Article 74 (2).[6] The Appellate Court in Belgrade rejected his extradition due to the lack of evidence which was not provided by Turkish authorities.

The contentious element of E.P.’s case was related to the fact that he was detained in DC Padinska Skela even though at that time, his extradition procedure was pending. Also, at that time the CAT issued an interim measure indicating to the Government of Serbia to refrain from sending him back to Türkiye until the end of the procedure before the Committee.[7] He was deprived of his liberty in June 2021 and was placed in extradition detention which, according to the Law on Mutual Legal Assistance in Criminal Matters (LMLAC),[8] cannot last longer than 1 year. Since the maximum length of his detention expired in June 2022, he was supposed to be released and placed under a measure alternative to extradition detention. The Higher Court of Belgrade therefore adopted a measure imposing a specific place of residence on the territory of Belgrade, which is a measure limiting the right to freedom of movement but does not constitute a deprivation of liberty according to the law, but is a typical example of limitation of freedom of movement. Nevertheless, he was placed in DC Padinska Skela, which, according to the subjective and objective criteria established by the ECtHR,[9] amounts to a measure of deprivation of liberty. Moreover, only the MoI – Department for Foreigners or Asylum Office – can detain foreign nationals in DC Padinska Skela and under the provisions of either the Foreigner Act or the Asylum Act. In other words, neither LMLAC nor the Criminal Procedure Code,[10] as lex generalis, provide for the possibility for a foreign national to be detained in immigration detention facilities. Accordingly, E.P. was detained arbitrarily, which was subsequently confirmed by the Appellate Court of Belgrade, which quashed the decision.[11]

Instead of releasing E.P., as a person whose legal status is being decided by the judicial extradition authorities, the MoI issued an expulsion order under the provisions of the Foreigners Act, without conducting any kind of assessment of the risks of refoulement in line with the Article 83 of the Foreigners Act, and arguing that E.P. represented a threat to national security and that he should be removed instantly. This decision created the grounds for immigration detention in DC Padinska Skela, and on the same day, the decision on detention was delivered.

What was also worrying argumentation is the fact that decision on immigration detention was rendered on the basis of the negative security assessment of BIA. Thus, the MoI has just highlighted that Mr. E.P. represents the threat to national security, but failed to outline any relevant fact related to the assessment conducted which could allow his legal representatives to dispute such assessment and thus, dispute legality and legitimacy of his detention. The Administrative Court rejected a complaint against E.P.’s immigration detention, also simply relying on the BIA security assessment.[12] He was released after 6 months.

Case of immigration detention of A.S.

The case of Mr. A.S. is almost identical to the case of E.P. He has also been in the extradition procedure and his extradition detention expired, after which he was detained in DC Padinska Skela. As E.P., he also lodged a subsequent asylum application, and his placement in DC Padinska Skela was also based on the security assessment of BIA. The only difference is that he was detained on the basis of the decision delivered by the Asylum Office[13] Without any reasoning, the Asylum Office simply invoked the negative BIA security assessment.

A.S.’s legal representatives seized the Higher Court of Belgrade of an appeal against the decision on detention and the extension of the detention, invoking the jurisprudence of the ECtHR in the case of Muhammad and Muhammad v. Romania,[14] in which the Court outlined that hiding all of the relevant facts are related to a security assessment denies the applicant of the possibility to challenge the it.

A.S. was released after the maximum period of 6 months and was transferred to AC Obrenovac. The Higher Court of Belgrade never decided on his appeal.

Both cases embody the most flagrant form of arbitrary administrative detention, which is unlawfully used for the purpose of extradition procedures and where the applicants are detained under the national security grounds, but without being informed of the reasoning behind the decision, which would allow them to dispute both their detention and expulsion order.

The practice of arbitrary detention at the airport has already been described in Access to the Territory, as well as detention in Asylum and Reception Centres during the COVID-19 lockdown. However, the Asylum Act introduced a Border Procedure. Thus, the applicant could be detained under these circumstances if adequate accommodation and subsistence can be provided.[15] However, since there are no adequate facilities located in border areas or in the transit zones, the border procedure has not yet been applied.

Other grounds for the detention of foreign nationals who may be in need of protection

Individuals in need of international protection may be at risk of detention in a number of situations, despite the fact that the Asylum Office rarely resorts to such practices.

Under the Foreigners Act, foreigners who are likely in need of international protection may be detained in the Detention Centre for Foreigners in Padinska Skela when they cannot be immediately forcibly expelled, for the purpose of their identification if they do not possess valid travel documents, or ‘in other cases prescribed by the law’.[16] However, this concerns persons who do not express the intention to seek asylum in Serbia, as persons who have done so come under the regime foreseen by the Asylum Act explained above.

Article 87 of the Foreigners Act provides that a foreigner who is in a return procedure can be detained for the purpose of preparing the return or executing the forced removal, based on the decision of the competent authority or border police. The detention is ordered where there is a risk that the foreigner will not be available to the competent authority for the execution of the forcible removal or will attempt to avoid or interfere with the preparations of the return or removal.[17] This form of detention may be ordered if a foreigner:

• Does not have documents to establish their identity;
• Does not cooperate in the return procedure and is interfering with their return;
• Has not departed from the Republic of Serbia voluntarily;
• Has not cooperated in the procedure for establishing their identity or citizenship, or has given false or contradictory information;
• Is using or has used false or forged documents;
• Has attempted to enter or has already entered into the Republic of Serbia illegally;
• Has not fulfilled his obligations derived from the order on mandatory stay in a particular place;
• Does not have any relatives or social ties in the Republic of Serbia;
• Does not have any means to provide accommodation or subsistence.

The fact that a person is in need of international protection must not be neglected during the course of a forcible removal procedure. Thus, the individual should have access to procedural safeguards in the context of expulsion,[18] which is not the case at the moment. The current practice entails the stereotypical issuance of a decision on cancellation of residency,[19] or an expulsion decision in case a foreigner does not have any legal grounds to reside in Serbia.[20] In these two procedures, foreigners do not enjoy legal assistance or services of interpretation, neither are they allowed to submit arguments against their expulsion or to effectively enjoy the right to a remedy which has a suspensive effect. Moreover, an appeal against the decision on cancellation of residency,[21] or the expulsion decision,[22] does not have a suspensive effect. The appeal against the expulsion decision could have a suspensive effect if there is a risk of refoulement.[23] However, since the guarantees regarding the expulsion are not in place in practice, it remains unclear how will the competent border police authority assess the risk of refoulement. The current practice is simply based on the automatic issuance of the expulsion decision in a template where only personal data and the circumstances of the irregular entry are stated, while the reasoning does not contain any assessment on the risk of refoulement.

Source: Response on the request for the information of public importance no. 07-34/24 received on 15 April 2024.

In 2022, a total of 272 foreign nationals were detained in DC Padinska Skelal for the purpose of forcible removal. Out of that number, 90 were from Afghanistan, 40 from Syria, and others originating from Türkiye, Iraq, Somalia and other countries in which detainees could face refoulement, especially if there is a possibility of a direct return to such countries (Türkiye for instance). Out of the above number of detained foreign nationals, 111 of them were removed via plane, 61 of them was readmitted to Bulgaria, while 16 of them were channelled through the assisted voluntary return (AVR) program conducted in cooperation with the IOM.

In 2023, 123 foreign nationals were detained in DC Padinska Skela. The majority of detainees were from Syria (50) and Morocco (16). It is reasonable to assume that some of the remaining detainees are still in detention at the time of writing of this report, while some of them were returned to Bulgaria under the readmission agreement or their country of origin. The MoI did not provide data on the number of foreigners who were forcibly removed to third countries or countries of origin from DC Padinska Skela, but it is also reasonable to assume that out of 130 individuals who were readmitted to Bulgaria in 2023, some of them were detained in DC Padinska Skela. Also, it also highly likely that some of them were directly removed to their country of origin, which can be corroborated by the statement of the NPM who monitored the return of Indian and Pakistani nationals to their countries of origin in July 2023.[24] On the other hand, others were released due to lack of possibility of for their return, which was the case for one citizen of Türkiye[25] and one Kyrgyzstan[26] national.

Source: Response on the request for the information of public importance no. 07-34/24 received on 15 April 2024.

In 2022, 245 foreign nationals were detained in DC Dimitrovgrad and 15 of them were forcibly removed by plane, while 114 were readmitted to Bulgaria, predominately citizens of Afghanistan. A total of 13 Indian citizens was returned though the AVR with the support of the IOM. As already outlined, it is not possible to determine if these people had the possibility to argue a risk of refoulement and chain-refoulement in Bulgaria, if they were allowed to access the asylum procedure, legal aid, or if they had the possibility to challenge their forced removal through a remedy that has automatic suspensive effect. What is known for certain is that none was registered as an asylum seeker.

In 2023, 333 persons were detained in DC Dimitrovgrad, most of them originating from Syria (178) and Afghanistan (79). According to the readmission data, a total of 130 foreign nationals were readmitted to Bulgaria, and it is reasonable to assume that most of them were detained in the DC Dimitrovgrad. In 2023, NPM monitored forcible removal of 15 Syrians to Bulgaria, but details of this operation were not published on its website.[27]

In 2022, out of the 57 foreigners detained at DC Plandište, 14 were forcibly removed to Romania. The same questions regarding their effective access to remedies against forcible removal and expulsion exist in their case.

In 2023, a total of 153 foreign nationals were detained in DC Plandište, out of which Syrians (57) and Afghanis (51) were the majority. There is no data on the outcome of such detention, but according to the findings of the Ombudsman, immigration detention in Serbia is frequently applied on persons who are assessed as an ‘unacceptable security risk’. NPM notes that such grounds are not envisaged in the Foreigners Act and that immigration detention of those foreigners who are suspected of committing crimes and misdemeanours is unlawful and arbitrary

Additionally, another problematic, widespread, practice consists in convicting persons coming from refugee-producing countries for irregular entry or stay, in contravention with the principle of non-penalisation for illegal entry or stay foreseen by Article 31 of the 1951 Refugee Convention. However, although the majority of misdemeanour proceedings end with the person in casu paying a fine before being issued an order to leave Serbia within a certain time limit, it is not uncommon for potential refugees to be sentenced to a short-term in prison as a result of their irregular entry or stay. Bearing in mind that access to an interpreter for languages most refugees speak is extremely limited, it is doubtful that these persons are made aware of their rights and understand the proceedings, including the right to seek asylum in Serbia.[28]

In general, it appears that relevant State authorities of Serbia rarely resort to measures of deprivation of liberty of persons that are in need of international protection who enjoy the status of asylum seekers, while on the other hand, persons who are likely in need of international protection but who do not wish to apply for asylum could be subjected to immigration detention.

[1] Article 77(1) Asylum Act.

[2] Article 77(3) prescribes that the risk of absconding shall be assessed on the basis of all the facts, evidence, and circumstances in a specific case, particularly taking into account all the applicant’s previous arbitrary attempts of leaving the Republic of Serbia, his or her failures to consent to identity checks or identity establishment procedures, or concealing information or providing false information about his or her identity and/or nationality.

[3] Article 58(1)(3) and (7) Asylum Act.

[4] Administration for Foreigners, Decision No. 26-13/22, 14 July 2022.

[5] MoI, Decision on immigration detention no. 26-13/22, 14 July 2022, extended on 14 October 2022.

[6] MoI, Expulsion Decision no. 26-1712/22, 14 July 2022.

[7] CAT, Piroglu v. Serbia, Communication No. 1130/2022, 2 June 2022.

[8] Official Gazette, no.  20/2009, available in Serbian at: https://bit.ly/325Z8kN, Article 22.

[9] ECtHR, Guzzardi v. Italy, Application No 7367/76, Judgment of 6 November 1980, available at: https://bit.ly/3tS73Al, para. 95; Z.A. and Others v. Russia, Application Nos. 61411/15, 61420/15, 61427/15 and 3028/16, Judgment of 21 November 2019 [GC], EDAL, available at: https://bit.ly/3JB0Hdu, para. 138, but see also, CPT, Report to the Croatian Government on the visit to Croatia carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 10 to 14 August 2020, CPT/Inf (2021) 29 , 3 December 2021, available at: https://bit.ly/3978tyQ, para. 10.

[10] Official Gazette, no. 72/2011, 101/2011, 121/2012, 32/2013, 45/2013, 55/2014, 35/2019, 27/2021 – decision of the CC and 62/2021 – decision of the CC.

[11] Appellate Court in Belgrade, Decision No. Kre. 8/22, 5 October 2022.

[12] Administrative Court, Judgment no. U 44363/22, 2 December 2022.

[13] Asylum Office, Decision No. 26-2052/21, 16 September 2022, extended on 15 December 2022.

[14] Application No.  80982/12, Judgment of 15 October 2020, EDAL, available at: https://bit.ly/3MNcTN5.

[15] Article 44(1)(1) Asylum Act.

[16] Articles 87 and 88 Foreigners Act.

[17] Article 87(4) Foreigners Act envisages that a foreigner is avoiding or interfering with the preparations for return and forced removal if his identity cannot be established, or if the foreigner does not have a travel document.

[18] Article 1 Protocol 7 ECHR.

[19] Article 39 Foreigners Act.

[20] Article 74 Foreigners Act.

[21] Article 39(7) Foreigners Act.

[22] Article 80(3) Foreigners Act.

[23] Articles 80(3) and 83 Foreigners Act.

[24] NPM, НПМ обавио надзор над принудним удаљењем два страна држављанина, 26 July 2023, available at: https://bit.ly/3QRIjD1.

[25] CAT, Piroglu v. Serbia, Communication No. 1130/2022, 2 June 2022. See also Balkan Insight, Serbia Ignores Calls to Free Kurdish Politician on Hunger Strike, 29 July 2022, available at: https://bit.ly/3PtXgaP.

[26] CAT, Sulaimanov v. Serbia, Communication No. 1145/2022, 10 August 2022. See also Danas, CAT zatražio od Srbije da se uzdrži od izručenja državljanina Kirgistana, 24 August 2022, available in Serbian at: http://bit.ly/3L6gzZe.

[27] NPM, НПМ обавио два надзора над принудним удаљењима држављана Сирије, available at: https://bit.ly/4biqANq.

[28] See more in AIDA, Country Report: Serbia – Update on the year 2021, May 2022, available here, 25.