Access to the territory and push backs

Serbia

Country Report: Access to the territory and push backs Last updated: 02/05/22

Author

Nikola Kovačević

Refusal of entry under the Foreigners Act

Article 15 of the Foreigners Act envisages that the Border Police should refuse entry into the Republic of Serbia to a foreigner if that person:

  • Does not have a valid travel document or visa, if required;
  • Does not have sufficient means of subsistence during his stay in the Republic of Serbia, for return to his country of origin or transit to another country, or is not in other ways provided with subsistence during his stay in Serbia;
  • Is in transit, but does not meet the criteria for entry into the next country of transit or country of final destination;
  • Has been issued a protective measure of removal, security measure of expulsion, or a ban on entry into the Republic of Serbia, which is in effect;
  • Does not have a certificate of vaccination or other proof of good health, if coming from areas affected by an epidemic of infectious diseases;
  • Does not have travel medical insurance for the intended period of stay in Serbia.

Entry should be refused by issuing a decision on refusal of entry on a prescribed form,[1] unless it is established that there are humanitarian reasons or interest for the Republic of Serbia to grant an entry, or if the international commitments of the Republic of Serbia indicate otherwise.[2] The foreigner can lodge an appeal to the MoI – Border Police Administration against the decision.[3] In practice, however,  the foreigners at Nikola Tesla airport are taken to the detention room and are cut off from the outside world. They typically cannot draft and send the appeal as they do not know domestic legal provisions and often do not speak Serbian or English language (the decision on refusal of entry is issued in Serbian and English languages). Also, they have to pay a fee of 12.470,00 dinars (around 105 EUR) before they can send the appeal to the Administrative Court. There is no post office in the transit zone, nor any other way to access the second instance body. The appeal does not have automatic suspensive effect.[4] This means that, even if the foreigner manages to lodge an appeal, he or she will have to wait for the decision on his or her appeal in the country in which he or she is expelled, which suggests that this remedy is theoretical and illusory.[5] The refusal of entry decision is mainly applied at the airport, as discussed in the next section, but also at the official border crossings. Still, the MoI does not provide data on the number of refusals of entry at official border crossings.

The Foreigners Act contains the entire set of principles which aim to guarantee the respect of non-refoulement in all forcible removal procedures, including the one regarding the decision on refusal of entry. Article 75 provides that the competent authority should take into consideration the specific situation of vulnerable persons, family and health status of the person being returned, as well as the best interests of a child,[6] specific position of people with disabilities,[7] family unity,[8] etc. If necessary, during the return procedure, an interpreter should be provided for a language that the foreigner understands, or is reasonably assumed to understand.[9] Additionally, the competent authority should, at the foreigner’s request, provide written translation of the provision of the decision on return, translation of the ban on entry if issued, and translation of the legal remedy into a language that the foreigner understands or may be reasonably assumed to understand.[10] Furthermore, Article 83 envisages that a foreigner may not be forcibly removed to a territory where he would be under threat of persecution on the grounds of his race, sex, sexual orientation or gender identity, religion, nationality, citizenship, membership of a particular social group or his political views, unless he or she represent a treat for national security or public order.[11] Regardless of the existence of such exceptions, Article 83(3) strictly prohibits foreigners’ removal to a territory in which they would be under risk of death penalty or torture, inhuman or degrading treatment or punishment.

Notwithstanding all the prescribed guarantees against refoulement, the introduction of the concept of refusal of entry into the new Foreigners Act still gives a lot of reasons for concern. This concern is derived from the current practice of the MoI at the airport transit zone and in the border areas with Bulgaria, North Macedonia and Montenegro, which is based on regular push backs which are being praised by the highest state officials, as discussed above. Thus, after the Foreigners Act came into force, the practice of denial of access to territory partially took a different shape which is equally harmful as the one that existed before. In other words, denial of access to territory is now based on pushbacks, but also on decisions that cannot be effectively challenged before the competent judicial authority since the appeal does not have automatic suspensive effect.[12]

Also, the guarantees against refoulement that are introduced in the Foreigners Act had existed in the Serbian legal framework before this Act came into force.[13] However, they were not applied properly, and there are plenty of documented cases where prima facie refugees were denied access to territory regardless of the risks in the receiving states (most notably in Bulgaria and North Macedonia).

On 10 February 2019, a Burundi citizen M.F. addressed the BCHR stating that he had been detained at the airport transit zone for 4 days. He stated that he wanted to apply for asylum but was denied that possibility by the police. Eventually, he was issued the decision on refusal of entry and was sent back to Qatar, after which the contact was lost.[14] This case gives serious reasons for concern, taking in consideration that Qatari authorities have been criticized in the latest CAT’s findings for detaining irregular migrants in inhumane and degrading conditions and for the purpose of forced return without adequate assessment of the risks of refoulement.[15]

On 21 February 2019, a high-profile political refugee from Turkey was automatically served a decision on refusal of entry and was about to be returned to Qatar and [possibly] further to Turkey. Only after BCHR’s intervention he was received a registration certificate and allowed access to territory and asylum procedure.[16]

In February 2020, 3 Cubans who expressed the intent to apply for asylum were issued a decision on refusal of entry, and were returned, most likely, to Russia.[17] There were several instances of asylum seekers from India, for whom it remains unclear if they had been allowed to access asylum procedure.[18]

In October 2020, BCHR was contacted by a transgender person from Cuba which was allegedly issued with the registration certificate but failed to remain in touch with acting lawyers. Thus, since the interventions are made mainly over the phone, it cannot be excluded that foreigners are denied access to territory and asylum procedure, despite the information that legal representatives receive over the phone.[19]

In February 2021, a political refugee of Kurdish origin from Turkey was refused entry, while A11 lawyers were denied access to the transit zone. Since it was the weekend, it was not possible to address the ECtHR and submit the Rule 39 request. Still, A11 managed to establish the contact with the person and will pursue his case further before the ECtHR.[20] Another similar case happened the following weekend, and it is obvious that Kurdish refugees from Turkey are at a very high risk of refoulement at the airport.

On 15 September 2021, IDEAS and A11 lawyers lodged the request for urgent interim measures in order to prevent expulsion of Kurdish political activist from Turkey to his country of origin where he would face life sentence without a parole. The request was granted on the same day and the man decided to flee Serbia upon his release.[21] This was the fourth Rule 39 request which was granted, since 2013, and with regards persons arbitrary detained at the airport who faced expulsion to third country or country of origin where they would face treatment contrary to Article 2 or 3 of the ECHR.[22]

On 15 October 2021, a victim of SGBV from Burundi X. and her daughter were arbitrary detained at the transit zone of the airport. She was kept there for more than 48 hours, and she was forced to sleep on the chairs. She was automatically served with the decision on refusal of entry and was about to be sent back to Istanbul, and then further to Addis Abebe and Bujumbura. Her cousin contacted IDEAS and its lawyers intervened and secured her access to Serbia. Prior to her arrival to Serbia, X. was raped by the members of Imbonerakure – paramilitary force close to the Government of Burundi. Ms. X only speaks Kirundi language and understands French. She wrote ‘I want asylum’ on the tissue, but the contact with the border police was impossible. She claims that the police addressed her in a disrespectful and violent manner shouting ‘there is no asylum in Serbia’. Ms. X. explained that border police officers apprehended a group of Burundian man at the very exit of the plane and took them ‘somewhere’. Most likely, they were taken to the detention room at the airport. She was not taken there because she was with a small child. She has never been served with her copy of decision on refusal of entry, but IDEAS later on obtained the copies where it was stated that she rejected to sign the decision. This represents the most flagrant example of automatic practice of refusing entry to persons who are in need of international protection.[23]

On 10 December 2021, IDEAS again intervened in the case of Mr. K. from Burundi who was arbitrarily detained at the airport for more than 7 days. He claims that he was punched several times when he tried to explain that he wanted asylum. At one point, he was electrocuted with a device that he describes as a mini battery. He witnessed ill-treatment of other persons from Tunisia, Burundi and India who were crammed into the detention room. Mr. K. fled political persecution from Burundi secret service Documentation. He also claimed that he has never been served with a decision on refusal of entry and that he was offered some documents to sign but he refused. His cell phone was taken as well, so the only reason why he was allowed to enter was because his cousin who was in the Asylum Center in Krnjača contacted IDEAS.[24]

On 10 December 2021, a family of 4 from Burundi arrived at the airport and tried to express intention to submit asylum application in Serbia. Their family contacted IDEAS after they had been returned back to Istanbul. The family claims that they were deprived of their liberty at the very exit of the plane and that their cell phones were taken. Later on, with several other citizens of Burundi, they were taken to detention premises where they remained for two days. They were not able to communicate with the outside word, nor they were allowed to have food.

On 25 December 2021, Mr. X. arrived from Istanbul to Belgrade airport. At the exit from the plane, his cell phone, passport and other personal belongings were taken away from him. He was detained with around 25 more people in the detention premises at the airport. He stayed there until morning of 29 December 2021. Alongside 12 other Burundians, he was expelled back to Istanbul. The police came into the room and handcuffed them. Those who opposed the police, including Mr. X, were hit with rubber truncheons. They were forcibly put in the police car and were driven to the plane of Istanbul Airlines via runway. He remained at the Istanbul airport for more than 10 days, without his passport and without food. IDEAS attempted to alarm UNHCR and CSOs in Turkey, but without avail. Upon his landing in Bujumbura on 12 January, he was arrested and taken to the building of Burundian secret service. His whereabouts are unknown until the date of the conclusion of this report, but IDEAS is in touch with the family.

On 1 January 2022, Ms. Y. from Burundi landed at Belgrade airport and was subjected to above-described practice. She was taken to the detention room where she was crammed with more than 20 male detainees. Ms. Y. alleges that she was sexually attacked by Tunisian national but was defended by other Burundian boys. On 4 January in the morning, the police came to detention premises and took Ms. Y. and another woman from Burundi to the police car with several other boys from the same country. The boys were handcuffed and boarded to the plane, while two Burundian women laid on the ground and screamed. According to their testimonies, the crew from the plane refused their boarding. In the afternoon, IDEAS addressed the Ombudsman office, and the women were allowed to access territory and asylum procedure.

In order for the Foreigners Act to be applied fully in line with the principle of non-refoulement, it is necessary to conduct a thorough training of all the border officials who will be entitled to render a decision on refusal of entry. Additionally, all the Regional Border Centres should have in their ranks interpreters for Arabic, Farsi, Urdu, Pashtu, Turkish, Kurdish, Kirundi and other languages that foreigners that might be in need of international protection understand. In practice, however, interpreters do not seem to be employed. Also, a person who is about to be denied access to territory should be afforded adequate and free of charge legal assistance. And finally, the implementation of the Foreigners Act should be made transparent and border monitoring activities, which were recommended by CAT, would dispel any existing doubts on the flawed practices of border authorities.

It is also worth mentioning that in light of the recent ECtHR judgment in M.A. v. Lithuania,[25] the Foreigners Act should be amended to introduce automatic suspensive effect of the appeal against the decision on refusing the entry.

 

Access to the territory in the green border zone

The number of arrivals to Serbia remain high, but it is still not possible to determine the exact number of refugees and migrants who enter Serbia on annual basis. The reason for this is different criteria applied by different bodies who collect such data. Thus, it is necessary to consult different sources such as UNHCR, CRM, but also Frontex, and in order to get the clearest picture possible.

Even though the numbers of arrivals remain high, access to territory for persons in need of international protection has continued to remain a serious concern in 2021.The pattern of multiple human rights violations which occur through the practice of pushbacks and other forms of collective expulsions includes:

  • short term unlawful and arbitrary deprivation of liberty[26] according to both the subjective and objective criteria of the ECtHR;[27]
  • denial of access to a lawyer, right to inform a third person on their situation and whereabouts and right to an independent medical examination;[28]
  • failure to inform refugees and migrants on the reasons for deprivation of their liberty, as well as procedures which are applicable to them, and in a language they understand;[29]
  • denial of access to asylum procedure;[30]
  • ill-treatment including kicks, slaps, punches, dropping off at locations where refugees and asylum seekers cannot fulfil their basic needs (food, water, medical assistance), destroying of cell phones, etc.;[31]
  • forcible removal without examination of individual circumstances of each person or outside any legal procedure;[32]
  • lack of assessment on any risks of refoulement and chain-refoulement[33] in the receiving states and complete disregard of special needs e.g., age, mental or medical state, trauma caused by torture, human trafficking, sexual or gender-based violence (SGBV);
  • denial of access to effective legal remedy for the above-enlisted violations cumulatively and under Article 13 of ECHR.

Additional contentious circumstances arise from the events of August 2020, when Serbia has constructed a barbwire fence at its southern border with North Macedonia, which is the entry point for the vast majority of refugees and migrants.[34] This measure came as a surprise.

The COVID-19 pandemic did not lead to imposing additional restrictive and contentious border polices, as it was the case in 2020.[35] Namely, the absolute prohibition of entering on Serbian territory during the state of emergency that was in force from 15 March to 6 May 2020 was not applied in 2021, and there are no indicators that something similar would repeat in the near future.[36] However, the practice of collective expulsions continued, regardless of the pandemic circumstances,[37]

Reports of collective expulsions to North Macedonia and Bulgaria have been decreasing in the past several years. However, data published by the highest state authorities (MoI, but also the Ombudsman) indicate that violent pushbacks are still a reality, which was confirmed in the decision of the Constitutional Court of Serbia, as well as in findings of the CAT in its latest Concluding Observations. This data represents continuation of the previous findings of relevant CSOs and international bodies for the protection of human rights and can be considered as evidence that collective expulsions are widespread and systematic.

The Status Agreement on border management cooperation between the European Union and Serbia entered into force in June 2021. The agreement allows Frontex to carry out joint operations in Serbia, especially in the event of sudden border management challenges. The European Commissioner for Home Affairs and Migration, Ylva Johansson, visited Serbia to launch the first Frontex joint operation at the Serbian border with Bulgaria.[38]

Arrivals to Serbia

It is not possible to determine the exact number of arrivals to Serbia and there are several reasons it:

  • there are different methods of collecting and compiling data on refugees and migrants entering and residing on the Serbian soil, and which are applied by the MoI, CRM and UNHCR;
  • a significant number of refugees and migrants are not registered (fingerprinted and photographed) by the MoI. Thus, they are not introduced in data base with fingerprints and pictures of foreigners – Afis. This is the only way to properly identify persons without any ID and which can further prevent recording one person several times when using a different name or when his or her name is not properly typed in one of the databases.[39]

Until 2020, the UNHCR office in Serbia was keeping its own statistics on the number of new arrivals which in, e.g., 2019 and 2020, were based on the initial interviews that UNHCR staff and its partners were conducting with newly arrived foreigners. By using this method, 29,704 persons were recorded as newly arrived in 2019 and 25,003 in 2020.[40] On the other hand, in 2020, CRM recorded 63,408 refugees and migrants who passed through governmental reception facilities, which is almost 40% more than figures collected by UNHCR.[41] However, according to the European Commission Progress Report for 2021 which contains data delivered by the State, the number of persons who passed through asylum and reception centres in 2019 was around 12,000, which is 40% less than the number of arrivals registered by the UNHCR in the same year (29,704).[42]

In 2021, the UNHCR and CRM harmonized their respective methodologies and now they apply CRM approach which is based on the number of refugees and migrants who were accommodated at asylum or reception centres.

According to that criterion, a total of 60,338 refugees and migrants were observed as new arrivals in 2021.[43] This data cannot be considered as 100 % accurate, especially taking in consideration that FRONTEX detected 60,540 cases of ‘illegal entries’ to EU and from Serbia and Bosnia:

            ‘The Western Balkan route saw a further 124% increase of reported detections of illegal border-       crossings in 2021 compared to 2020. The route marked an increasing trend until September and            a slight decrease in the subsequent months. The majority of detected illegal border crossings can             be traced back to people who have been in the region for some time and who repeatedly try to     reach their target country in the EU.’[44]

According to Frontex’s information, almost identical number of persons who resided in camps in Serbia attempted to cross to EU from Bosnia and Serbia. Moreover, FRONTEX outlined that these are persons who repeatedly try to reach their target country in the EU. In other words, one person can try several irregular crossings to the EU, and one person can be registered in several different camps in Serbia. Thus, it can be assumed that realistic number of new arrivals in Serbia is closer to the numbers which can be obtained by the UNHCR methodology from the previous years (i.e. based on the initial interviews), than the one which is applied by the CRM. Certainly, the most reliable way to determine the most accurate arrival numbers is recording by MoI in the Afis, which cannot be expected in the near future due to lack of capacities of Border Police Administration.

The number of arrivals per month was as follows:

Observed Arrivals in the period 2019-2021
Month Arrivals 2019 Arrivals 2020 Arrivals 2021
UNHCR CRM UNHCR CRM UNHCR and CRM
January 629 / 1,700 / 3,180
February 819 / 2,633 / 2,273
March 1760 / 1,649 / 3,832
April 1,826 / 583 / 4,344
May 2,512 / 270 / 3,182
June 2,366 / 2,108 / 4,111
July 2,726 / 3,197 / 5,762
August 3,673 / 4,146 / 7,101
September 3,686 / 2,981 / 8,978
October 4,123 / 2,703 / 6,570
November 3,871 / 2,022 / 6,027
December 1,713 / 1,011 / 4,978
Total 29,704 10,145 25,003 63,408 60,338

 

Access to the territory in the context of COVID-19

The measures that were in force in 2020 and introduced in the context of COVID-19 prevention were not applied in 2021,[45] which should be applauded. However, it is also important to highlight that these measures were without any doubt discriminatory and disproportionate. The main argument for this claim lies in the fact that restrictive measures, which were applied at the border in the first half of 2020, were not applied at all in 2021. The number of infected people with COVID-19 during 2020 has never exceeded 8,000 per day. In 2021, the highest number of infected people was 14,000.

The fence towards North Macedonia and pushbacks

On 15 May 2020, the Ministry of Defence announced a public procurement for buying of 2,5 tons of barbwire for the purpose of fencing asylum and reception centres.[46] Several CSOs, including A11 and PIN, swiftly reacted to the public statement, condemning such act and declaring it to be contrary to international human rights law.[47] Soon after the announcement of the public procurement, an online Portal Direktno announced that the Government of Serbia is planning to build a barbwire fence at borders with Northern Macedonia and Bulgaria.[48] At that time, it was not possible to confirm these news, but UNHCR partners had noticed that, during the state of emergency, the military started clearing the land in the border area with North Macedonia.[49] On 22 May 2020, the Ministry of Defence selected the private enterprise (Žica Best) to build the fence around asylum and reception centres. However, on 31 May 2020, the Ministry has stopped the public procurement stating that the need for such measure had ceased to exist after the state of emergency was lifted.[50] In August 2020, the Radio Free Europe reported that Serbia had built the fence alongside the border with North Macedonia. [51] Not a single state official made comments on this act, except for the Commissar for Refugees, Mr. Vladimir Cucić, who stated in the documentary ‘Pushbacks and Dangerous Games’ that the building of the fence is nothing more but ‘a late reaction of Serbia’ which has an aim to slow down new arrivals to Europe.[52]

Reports on pushbacks from Serbia to neighbouring states

The so-called Western Balkan route represents a region in which refugees, asylum seekers and migrants are systematically subjected to collective expulsions and ill-treatment by border authorities. In 2021, the presence of civil society organisations at the borders with North Macedonia, Bulgaria and Montenegro continued to be limited.[53] In other words, there is no effective border monitoring mechanism established in Serbia with an aim to closely and frequently observe the situation at entry borders. Still, UNHCR and its partners have continued to report on incidents involving pushbacks and other forms of collective expulsions to North Macedonia.[54] Apart from that, APC has published a report that contains allegations and statistics on pushbacks to North Macedonia in the first six months of 2021.[55]

It is important to note that there are no recent reports on pushbacks and collective expulsions committed by Serbian border authorities in the green area with Bulgaria and Montenegro. This does not exclude a very high probability that such practice still exists. It only indicates that the presence of CSOs at these borders has basically ceased to exist. Official statistics of the MoI indicate that collective expulsions are still carried out towards Bulgaria, as it can be seen from the Ombudsman report:

‘According to official data of the RBPCs, in 2020 […] 434 [persons/refugees and migrants] on the border with Bulgaria gave up trying to illegally enter the Republic of Serbia. According to police officers, these are foreigners who, after noticing the presence of border police patrols, gave up entering the country.’[56]

The argumentation of the MoI that refugees and migrants are discouraged from irregular crossings when they encounter border police is nothing but the misleading. It represents the usual MoI and Ministry of Defence mantra that has been repeated since 2016, when mixed patrols of army and police were introduced with an aim ‘to suppress illegal migration’.[57] This argument was publicly used for the first time by Mr. Jovan Krivokapić from the Ministry of Defence who stated on the national television that refugees and migrants are discouraged when they spot border patrol forces.[58] A month before that statement, a group of 17 Afghan refugees were collectively expelled back to Bulgaria. This incident was declared as a violation of prohibition of collective expulsions by the Constitutional Court in December 2020.[59] Three months before, a Kurdish family of 7 was left in the forest to freeze to death and only because of CSO InfoPark reaction, a search and rescue mission was carried out and refugees were saved.[60] Accordingly, the credibility of such statements can only be checked if independent border monitoring mechanism is established, as recommended by the Committee against Torture in 2015[61] and 2021.[62]

The findings of the Border Violence Monitoring Network (BVMN) from 2020 and of UNHCR and APC in 2021, indicate that refugees and asylum seekers who were arriving from North Macedonia were subject to a short-term deprivation of their liberty, searches, occasional ill-treatment and a denial of access to basic rights.[63] Next, they were removed and forced back to North Macedonia without an assessment of their special needs e.g. age, mental or medical state, risks of refoulement, but also the risks of chain refoulement further to Greece or Turkey. They did not have the possibility to apply for a remedy with suspensive effect in order to challenge their forcible removal.[64]

According to UNHCR, at least 773 refugees and migrants were pushed back to North Macedonia in 2019, 977 in 2020, and 210 in 2021. More detailed reports on pushbacks to North Macedonia were solely published by the BVMN in 2020 and APC in 2021.

Pushbacks to North Macedonia in 2020-2021
2019 2020 2021
January 78 74 0
February 87 150 31
March 96 112 2
April 35 9 7
May 49 9 22
June 19 88 5
July 59 10 21
August 28 154 46
September 159 142 14
October 67 159 57
November 90 30 0
December 6 40 5
Total 773 977 210[65]

Source: UNHCR.

 

One case from 2020 deserves a particular attention as it was documented by several CSOs and demonstrates the practice of collective expulsions from the mainland, not at the very border line. It relates to a group of 16 persons from Morocco, Iran and Algeria who were collectively expelled from the asylum centre (AC) in Tutin to North Macedonia. Allegedly, the police told them that they will be transferred to the reception centre (RC) in Preševo. Instead, they were dropped of near a Macedonian village, Lojane. They were crammed into the police van and after they had arrived at the drop off point, several of them were threatened, slapped and punched. Later on, the same group was arrested by Macedonian police and collectively expelled to Greece.[66] The group addressed several NGOs, including BVMN, BCHR and IDEAS.[67] The case was latter on referred to the Ombudsman by the BCHR.[68] The Ombudsman issued an extremely contentious Recommendation, stating that the MoI and Commissariat for Refugees and Migration (CRM) have failed to prevent ‘uncontrolled movement’ of migrants who were, according to the report, left in front of the RC in Preševo and then went to ‘unknown direction’. This finding implies that the Ombudsman rejected as uncredible allegations of collective expulsion, even though the latter was provided with the phone number and location of victims.[69] However, the body never tried to collect testimony from these people, even though they managed to return to Serbia after several weeks and the Ombudsman was aware of their whereabouts.[70] This case displays a similar pattern as the case of collective expulsion reported by the APC in 2019.[71]

BVMN described in detail four more pushbacks to North Macedonia in 2020, involving a total of 54 persons from Afghanistan, Algeria, Morocco, Pakistan, Tunisia and Syria. The first two incidents refer to April 2020, when 26 residents of RC in Preševo were taken from the camp and were collectively expelled to North Macedonia close to the Serbian border village Miratovac.[72] Two other reports were published in October 2020 outlining that refugees and migrants were taken respectively from AC Tutin,[73] and the town Preševo,[74] to the green border area with North Macedonia close to Miratovac village. APC reported pushback to North Macedonia in November 2020.[75] All the enlisted cases included different forms of ill-treatment, such as: slapping, kicking, hitting with the rubber truncheon, use of police dogs, etc. These reports suggest that collective expulsions continued to take place, regardless of the COVID-19 pandemic, and that particularly vulnerable foreigners in that regard are those who are placed in RC Preševo and AC Tutin.

One of the reports published by the coalition of CSOs in April 2021 gives a detailed account of push backs of 4 persons to North Macedonia in the first four months. The report further outlines that pushback from Serbia and particularly from North Macedonia to Greece are likely to be happening on a much larger scale.[76]

An encouraging sign in 2021 was one border initiative of the Ombudsman office. When it comes to pushbacks to North Macedonia committed by Serbian authorities, the Ombudsman recorded the following testimonies:

  1. […] four young men from Syria stated that they had been sent back across the border several times, first from Serbia to North Macedonia, and then from North Macedonia to Greece. They added that during the first attempt to enter the country, they came across a group of police officers and that on that occasion they took their SIM cards from their mobile phones and told them to go back to where they came from. They added that they kicked one of them […]
  2. A young man from Somalia states that after crossing the border and entering Serbia from North Macedonia, he was returned to North Macedonia together with a group of ten people he was with. He adds that he did not experience any form of violence on that occasion but that they were not given any information nor explained anything
  3. A boy and a girl, who state that they are brother and sister, described that in January, after crossing the border and entering Serbia from North Macedonia, they came across the police and that they were all non-violently expelled to North Macedonia. When crossing the border again, he and his sister managed to separate from the group before the new contact with the police, in order to escape from them, and then cross the border.
  4. A young man from Lebanon states that he and a small group of people came across uniformed persons, and that they pushed them into a car and returned them to North Macedonia. He adds that on that occasion, they also received punches to the back.
  5. A young man from Afghanistan states that during January and February 2021, he was returned to North Macedonia seven times by uniformed persons, that the reasons for his return were never explained to him, and that on one occasion the group he was traveling with suffered violence from police officers.[77]

Thus, 5 testimonies which encompass several dozen persons, were collected in only 2- 3 days in the border area with North Macedonia. This data clearly demonstrates the widespread or even systematic extent of the pushback practice. These testimonies reflect testimonies collected by the BVMN from 2020. Still, apart from BVMN in 2020 and APC in 2021, other CSOs which are present on a daily basis at reception centres in border areas have not published reports on border practices or testimonies collected by those who might have been informally expelled to one of the neighbouring states. The same can be said for CSOs in the neighbouring/receiving states who so far have not disclosed any major findings or testimonies by refugees and asylum seekers on this issue in 2019 2020, and 2021[78]

APC reported that in the first half of 2021, 410 pushbacks were documented by their field teams, and estimation of this CSO is that every day, at least 50 refugees and migrants are collectively expelled to North Macedonia.[79]

All pushback allegations are further supported by the continuing self-praise of Serbian officials who publicly present ‘the positive results’ of Serbian border authorities as they successfully combat ‘illegal entries’ from neighbouring states.[80] In June 2020, it was published in the media that up to June 2020, 532 migrants were prevented from ‘illegally’ crossing the border.[81] In the Ombudsman report, it was stated that in 2020, 14,390 people gave up trying to illegally enter Serbia from North Macedonia after they spotted border police forces.[82] This part of the Ombudsman’s report contradicts Ombudsman’s own  findings based on the above-cited testimonies compiled in the same document.

Beyond North Macedonia, in the Report on the implementation of the Strategy for Combating Irregular Migration for the period 2018-2020, the MoI outlined the following:

‘During 2019, a total of 20,221 people were prevented from attempting to cross the state border illegally, of which 4,990 were caught trying to cross the state border illegally, while 15,231 people gave up after being spotted by the state border security authorities, while in 2020, a total of 38,226 persons were prevented, of which 22,572 were directly prevented from attempting to cross the state border illegally, while 15,654 were the results of preventive action by the state border security authorities.’[83]

Once again, it remains unclear what the following terms mean: ‘prevented from attempting to cross the state border’, ‘were caught while trying to cross the state border’, ‘gave up after being spotted’, ‘directly prevented from attempting to cross’ and ‘results of preventive action.’ One thing is certain, these people were not issued with the decision on refusal of entry[84] as formal way to prevent someone from unlawfully entering Serbia.

The number of persons prevented from ‘illegally crossing the border’ (data extracted from the statements of the state officials and official reports of the MoI)

Year 2016 2017 2018 2019 2020 2021 Total
No. of persons denied access to territory

 

(at least) 18,000[85] (at least) 21,000[86] (at least) 23,000[87] 20,221[88] 38,226[89] N/A (at least)

120,447

 

To conclude, it is clear that denial of access to the territory represents the State policy which has remained unchanged in 2021.

International criticism  

The practice of pushbacks has been criticised by the UN Human Rights Committee which expressed its concerns related to “collective and violent” denial of access to territory.[90] These concerns have also been shared by the CAT[91] and Amnesty International,[92] while UNHCR had reported this problem for the first time in 2012.[93] In 2015, the CAT recommended that Serbia should establish “formalised border monitoring mechanisms, in cooperation with the Office of the United Nations High Commissioner for Refugees and civil society organisations.”[94] To this date, Serbia has failed to establish an independent border monitoring mechanism. CAT reiterated its recommendation in 2021 and urged Serbia to:

‘Introduce a border monitoring mechanism that includes representatives of independent entities, such as international organizations and civil society with expertise in international refugee law and international human rights law, to ensure that border authorities are acting in line with the principle of non-refoulement and the prohibition of collective expulsion, as well as for the purpose of collecting accurate data’.[95]

European and domestic jurisprudence

One of the most important developments in 2021 is the decision of the Constitutional Court (CC), which confirmed that illegal border practices have been a state practice.[96] This decision is the first official recognition that relevant state authorities denied access to territory and asylum procedure and carried out collective expulsions.[97] On 29 December 2020, the CC adopted a constitutional appeal submitted by 17 refugees from Afghanistan who complained to have been collectively expelled to Bulgaria in February 2017.[98] The case concerned a forcible removal of 25 Afghan refugees (including 9 children) who entered Serbia from Bulgaria. The group was arrested by the border police officers and was detained for 12 hours in the basement of the Border Police Station Gradina in inhumane and degrading conditions.[99] Later on, they were taken to the misdemeanour court to face trial for illegal entry on Serbian territory. An acting judge dropped the charges stating that defendants are in need of international protection, that they should not be removed to Bulgaria due to poor living conditions in reception centres and because ‘they might be victims of human trafficking.’ The judge ordered the police to issue the applicants with registration certificates and to take them to asylum centres. Right after the trial, and upon being issued with asylum certificates, applicants were put in a van and, instead of being taken to the camp, they were taken to the green border area and collectively expelled to Bulgaria.

The Constitutional Court found that Gradina officers had violated applicants’ right to liberty and security (Article 27 (3) and Article 29 (1) of the Constitution)[100] by denying them the possibility to challenge the lawfulness of their detention with the assistance of competent legal representative. The Court dismissed applicants claim that the material conditions of the basement amounted to inhumane and degrading treatment stating that the period of 12 hours is not lengthy enough to reach the threshold of Article 25 of the Constitution (Article 3 of ECHR).[101] The Court has further found that it is an undisputable fact that applicants were expelled to Bulgaria. By applying the standards established in the ECtHR jurisprudence in Čonka,[102] Hirsi Jamaa[103] and Georgia v. Russia,[104] the Court has determined that the applicants were expelled to Bulgaria outside any legal procedure, without examining individual circumstances of every applicant and without the possibility to provide arguments against their expulsion. The Court also awarded EUR 1,000 to each of the applicants[105]

On 12 July 2021, the above-mentioned case, which was decided partially by the Constitutional Court,[106] was communicated to the Government of Serbia and the issues which were raised in ECtHR’s questions to the Government are related to Article 3, Article 13 read in conjunction with Article 3, Article 4 of Protocol 4, Article 13 read in conjunction with Article 4, Article 5, Article 5 (2) and Article 5 (4).[107]

On 14 June 2021, another case referring to informal expulsion to North Macedonia, and then further to Greece, was communicated to the Governments of Serbia and North Macedonia (A.H. v. Serbia and North Macedonia, and A.H. v. Serbia). The case concerns the Sudanese applicant, who attempted to seek international protection in Serbia. Instead of being registered, he has been allegedly subject to several summary removals to North Macedonia by the authorities of Serbia and to Greece by the authorities of North Macedonia, respectively. A formal removal decision has never been rendered. The case refers to Article 3 and Article 13 read in conjunction with Article 3 in terms of the risk assessment of refoulement and chain-refoulement.[108]

Pushbacks to Serbia from neighbouring states in 2021

Wide-spread pushbacks towards Serbia have been documented along the green border between with Bosnia, Croatia, Hungary and Romania where refugees and asylum seekers are systematically denied access to the territory and the asylum procedure, and are often subjected to various forms of ill-treatment, some of which might amount to torture.[109]

This state of affairs indicates that Serbian geographical position puts this country in a difficult situation. Namely, Serbian asylum system cannot be considered as fair and effective, and thus, it is not attractive to refugees and asylum seekers. For that reason, most of persons in need of international protection who arrive to Serbia strive to leave to one of the three neighbouring states which form the so-called external borders of the EU – Romania, Hungary or Croatia.

The will to leave to the EU countries implies that refugees, asylum seekers and migrants strive to stay in border areas, in one of six Reception Centres or in more than 20 informal settlements which are established in abandoned facilities or tent settlements formed in forests and fields. Apart from food, water and roof over their heads, refugees, asylum seekers and migrants who decided to stay in Reception Centres sleep in conditions that can only be described as inhumane and degrading due to overcrowding, lack of privacy, poor hygiene, insecurity and others. On the other hand, even more appalling conditions are inevitable in the informal settlements where there is no access to the most basic needs, especially during the hot summer or cold winter days. According to the APC, between 2,000 and 3,000 refugees and migrants were residing in informal settlements every day in 2021.[110]

Thus, illegal border practices of the neighbouring countries are not only contentious from the perspective of domestic laws and international standards but they also disregard lack of capacity of Serbia to accommodate victims of pushbacks in a manner which respects  their physical and mental integrity.

On the other hand, refugees and migrants could be afforded with better conditions in reception facilities in the south or east of the country. Serbian police organized several transfers of people staying in appalling conditions in border areas to Reception Center in Preševo, especially during the winter times.[111] Many of these transfers were described as violent, degrading, and ineffective. These locations are far from the EU external borders so after transfers, people typically come back to the same locations from which they were removed.

BVMN outlined in its December 2021 report the following:

  • […] As stated in previous monthly reports, large-scale operations in the North were carried out several times this winter. These evictions are notoriously ineffective in tackling smuggling networks, and rather sometimes contribute to reshaping smuggling routes or, at a smaller scale, the distribution of individuals in a given space. […] As witnessed by members of our team on the field, an overwhelming number of individuals tend to come back to locations they were evicted from. The endless circle of evictions triggered this winter is not only efficient on the part of the state but violent and endangering vulnerable communities with few other options to turn towards when it comes to housing.[112]

In 2021, the UNHCR office in Serbia and its partners documented that 29,289 persons were pushed back from Croatia, Bosnia, Hungary and Romania to Serbia, of whom 68% from Hungary, 27% from Romania, 4,5% from Croatia and less than 1% from Bosnia and Hercegovina.[113]

UNHCR statistics on pushbacks to Serbia in 2021[114]

Month Bosnia and Hercegovina Croatia Hungary Romania
January 2 78 1,092 1,011
February 4 82 2,076 1,611
March 90 115 930 991
April 62 134 677 298
May 39 94 691 346
June 17 88 689 266
July 35 60 987 395
August 10 112 2,009 791
September 67 1,457 475
October 16 58 3,110 835
November 23 3,507 933
December 48 2,411 254
Total 275 959 19,636 8,206

 

APC reported that 527 pushbacks from Hungary, Croatia and Romania in the first half of 2021 and this CSO estimate that, on average at least 200 people are pushed back to Serbia every day,[115] outside formal readmission procedure which is almost never applied. It is further highlighted in the Report that every person interviewed was returned to Serbia at least twice, while less people claimed that they were pushed back 10 to 15 times. Some of the people alleged that they were pushed back several dozen times.[116]

Pushbacks from Hungary to Serbia and Embassy Procedure

Since the contentious changes in Hungarian legal framework in the period 2015-2020,[117] including the legalization of practice which is considered to be in violation of prohibition of collective expulsions, more than 130,000 persons was expelled back to Serbia.

In 2020, BVMN published 3 testimonies encompassing 30 people who were pushed back from Hungary to Serbia.[118] This number significantly increased in 2021 amounting to 30 documented pushback cases encompassing 347 persons. Only in 5 out of 30 cases allegations of violence were not reported, while in other 25 cases the following forms of ill-treatment by Hungarian authorities were outlined: kicks, slaps, punches, hitting with police buttons, forcing to undress, handcuffing in painful positions, arbitrary detention, pushing to the ground, forcing to lye or sit on the ground, dog attacks, insulting, threating, pepper spraying, etc.[119]

The Centre for Research and Social Development (IDEAS) has interviewed 276 individuals who claimed that they were pushed back from Hungary to Serbia in line with the Hungarian legal framework which allows arbitrary expulsions. Many of them reported the following practice:

  • short term (in case they are arrested in the vicinity of the barbwire fence) or long-term arbitrary deprivation of liberty (up to 24 hours in one of the police stations or containers located close to the border);
  • inhumane and degrading treatment which includes hits, punches, hand cuffing in painful positions, insults, threats, deprivation of food and water, forcing to lie or sit on the ground and other;
  • lining up of refugees and migrants and camera recording of reading of the statement by one of the refugees or migrants in the group who speak or understand English language;
  • collective expulsion at one of the gates in the fence.[120]

Out 276 persons, 16 persons expressed their will to challenge the practice they endured. The legal assistance to these persons involved cross border cooperation and referrals to CSOs in Hungary.

APC reported that over 300 people attempted to cross the border with Hungary every day in the first 6 months of 2021.[121] APC reported in December 2021 the following incident:

‘Horgos. M. from Morocco describes that a Hungarian policeman hit him twice on the head with a truncheon, after which he spent 8 days in a hospital on Hungarian territory. Afterwards, Hungary pushed him back to Serbia.’[122]

A particularly worrying examples of push-back practice from Hungary to Serbia are related to individuals who have never been in Serbia beforehand. There are probably dozens of cases of foreigners subjected to such practice. The first such case was recorded in 2016.[123] In April 2021, SGBV survivor who arrived from Senegal to Budapest airport was expelled to Serbia.[124] In September 2021, an Afghan student in Hungary was expelled to Serbia.[125] On 31 December 2021, a woman from Cameroon who was traveling from Romania towards Austria was apprehended by Hungarian immigration authorities and expelled to Serbia. In February 2022, she obtained the status of the victim of human trafficking in Serbia.[126]

It is noteworthy that in 2020 access to the territory and asylum procedure in Hungary was made possible only through a consulate in Belgrade.[127] The new procedure in practice implies that persons in need of international protection have to send an email and schedule an appointment at the Consulate and to wait to be summoned in order to submit the Declaration of Intent for Lodging an Application on Asylum (‘DoI’).[128] The new procedure is described in detail in the AIDA report on Hungary. According to the data obtained by IDEAS, several hundred applications (individuals and families) have sent an email to the Consulate asking for the appointment. Only handful of them received the response stating that they are included on the list, and even less were invited to Consulate premises to lodge DoI. So far, only 3 families from Iran (12 persons in total) have entered Hungary. IDEAS and InfoPark were providing technical assistance to the foreigners interested in applying for asylum. The problems that were detected are the following:

  • DoI formulars are in English, which represents a serious obstacle for most of the applicants
  • filling of the DoI formulars requires at least basic knowledge on refugee and asylum law
  • many of the applicants do not know how to use email and how to communicate with the Consulate in order to schedule the DoI submission or to lodge DoI submission
  • the communication with the Consulate is in English and most of the applicants do not understand this language
  • several applicants have failed to appear at the scheduled meeting since they did not understand the message received via email from Consulate or because they do not know how to use an email
  • there is no clear criterion on who will be invited to submit DoI, which creates distress and conflicts among applicants who are aware of each other applications
  • persons who are informed that they are rejected are not advised that they are entitled to lodge an appeal and are not familiar with the Hungarian legal framework governing the appeal stage, neither are Serbian lawyers
  • persons who are rejected are not legally competent to legally challenge the negative decision/response of the Consulate

Additional issues on the new procedure are documented in the AIDA report on Hungary. To conclude, persons interested to submit DoI at Hungarian consulate do not have effective access to asylum procedure, and it is clear that this mechanism has showed to be theoretical and illusory for all except one family from Iran who was allowed to access Hungarian territory. Many people who sent an email to the Consulate are without any legal status but are allowed to reside in the asylum or reception centres. They are in the same situation as thousands of other foreigners who do not enjoy any legal status and whose stay in Serbia is tolerated.

And finally, it is important to outline that the above-described practice of automatic expulsions to Serbia was declared as contrary to Article 4 of Protocol 4 of the ECtHR in the case Shahzad v. Hungary.[129] The ECtHR outlined that Hungarian authorities removed the applicant without identifying him and examining his situation and that he was denied effective access to means of legal entry, which amounted to expulsion of collective nature contrary to Article 4 of Protocol 4.[130]

Official statistics on pushbacks from Hungary to Serbia 2016-2021[131]

Year

No. of persons pushed back
2016 8,466
2017 9,259
2018 4,151
2019 11,101
2020 25,603
2021 71,470
Total

130,050

 

As it can be seen from the table above, Hungarian immigration authorities have been transparent when it comes to the number of persons expelled back to Serbia under domestic framework, outside any readmission procedure, and without a knowledge of Serbian border authorities.

Pushbacks from Romania to Serbia[132]

Due to increasing violence at the Croatian border and taking in consideration that Hungarian barbwire fence carries significant risk to live and physical integrity of the concerned persons, in 2018 refugees and migrants started to use Romanian border route. According to the UNHCR, the number of pushbacks from this country have been increasing gradually, from at least 700 persons in 2018, to 1,857 in 2019 and then 13,459 in 2020. In 2021, the number of people who reported pushbacks from Romania was at least 8,206.

BVMN published 3 testimonies referring to 67 persons who were pushed back from Romania in 2020.[133] In 2021, 20 incidents encompassing 238 persons was reported. Every single report contained allegations on ill-treatment by Romanian authorities: kicks, slaps, punches, hits with rubber truncheons, electric shocks, forcing to undress and other.[134]

European Union Agency for Fundamental Rights (FRA) highlighted that Romanian police reported that only in the first six months of 2021, 28,737 refugees and migrants were ‘prevented’ from entering from Serbia. Thus, this number shows that push-back practice represents an official state policy in this country as well.[135]

APC reported that at least 50 persons per day were trying to cross to Romania in the first half of 2021.[136] IDEAS has observed the trend regarding refugees who cross to Romania continue their movement to the city of Arad and then enter Hungary. After being apprehended by the Hungarian police, they are expelled to Serbia.[137]

It is also important to outline that there is no cross-border cooperation between Serbian and Romanian CSOs and individuals, which could help legal initiatives to legally challenge Romanian border practice.

UNHCR statistics on pushbacks from Romania to Serbia in 2021[138]

Year Minimum No. of persons pushed back
2018 At least 700
2019 At least 1,857
2020 At least 13,459
2021 At least 8,206
Total At least 16,822

 

Pushbacks from Croatia to Serbia

The number of pushbacks from Croatia to Serbia has been decreasing since 2018. The vast majority of refugees and migrants have decided to move to Bosnia and Hercegovina and try from there to cross to Croatia. In October 2020, a documentary ’Pushbacks and Dangerous Games’ was broadcasted on N1 television. This documentary gave an overview of Croatian push back policies and presented several testimonies from refugees collectively expelled from Croatia.[139]

In 2020, BVMN published 9 testimonies involving 93 people who were pushed back from Croatia,[140] APC was also reporting on cases of collective expulsions which included severe forms of violence.[141] In November 2020, APC reported the following:

‘Croatian police continue with violent pushbacks. A group of people from Afghanistan described how they were forced to take their clothes and shoes off, and were pushed back to Serbia, near Batrovac, only in their underwear. Beating, shooting, breaking of phones and seizing money is an everyday practice of the Croatian police.’[142]

APC estimates that in the first 6 months of 2021, approximately 300 to 400 persons was present in the border area with Croatia trying to cross the border.[143] One of the testimonies of APC’s report goes as follows:

‘AA, 21, from Afghanistan, described his experience of pushback from Croatia, when he was caught together with the group he was traveling with, in the vicinity of Batrovci. The Croatian police put the whole group in the official vehicle, which took them to the border with Serbia. After getting out of the police vehicle, they started shouting and beating them. They were forced to take off their shoes […] They were then ordered to kneel and keep their hands behind their heads. Some of them were hit with a truncheon on the back. In the end, they were forced to cross into Serbian territory […] only in underwear […][144]

BVMN documented 33 cases involving 92 refugees and migrants being denied access to Croatian territory. Each and every case implied some form of ill-treatment such as: punches, kicks, undressing, hitting with rubber truncheon and others.[145]

And finally, it is important to note that the ECtHR has found multiple violations of the Convention in the case M.H. and Others v. Croatia. The case concerned the death of a six-year-old Afghan girl, M.H., who was hit by a train after she and her family were denied the opportunity to seek asylum by the Croatian authorities and ordered to return to Serbia via the tracks. The Court found that the investigation into the death had been ineffective, the applicant children’s detention had amounted to ill-treatment, and the decisions on the applicants’ detention had not been dealt with diligently. It also held that some of the applicants were subjected to a collective expulsion from Croatia and the State had hindered the effective exercise of the applicants’ right to an individual application by restricting access to their lawyer among other things.[146]

In March 2021, a Kurdish political activist was denied access to asylum procedure and expelled back to Serbia. IDEAS and Center for Peace Studies (CMS) documented the case and CMS addressed the ECtHR. The case was communicated in December 2021.[147]

The systemic practice of pushbacks in Croatia was widely exposed in the European Committee for the Prevention of Torture and Inhumane or Degrading Treatment or Punishment (CPT).[148]

UNHCR statistics on pushbacks from Croatia to Serbia in 2021[149]

Year Minimum No. of persons pushed back
2018 At least 6,200
2019 At least 3,280
2020 At least 1,975
2021 At least 1,000
Total At least 12,455

 

Additional information on push-back practices to Serbia can be found in the other AIDA country reports on Croatia, Hungary and Romania.

 

Access to the territory at the Nikola Tesla Airport in Belgrade

The contentious work of the Border Police Station Belgrade (BPSB) at the Nikola Tesla Airport has remained unchanged in 2021[150] However, a recent and additional problem is the increasing number of ill-treatment allegations made by the people who were refused entry at the airport and addressed CSOs in Serbia upon their return to country of origin, or after their admission to territory which ensued after CSOs interventions. The use of violence towards persons who might be in need of international protection was recorded on numerous occasions by CSOs in Serbia. This violence reportedly includes punches, slaps, kicks, hits with rubber truncheon and handcuffing in painful position. Ill-treatment was applied in situations when refugees and asylum seekers were forced to go to the detention premises at the airport or when they were forced to board the plane.

BPSB issued 146 certificates of intention to submit asylum application (‘registration certificate’). This is a significant increase in comparison to 2020, when only 44 certificates were issued and 2019, when 69 persons was registered by the BPSB.[151] To a certain extent, the higher number can be attributed to the fact that air traffic was not limited anymore in 2021 due to COVID-19 circumstances.

The majority of certificates were issued to the citizens of Burundi (more then 100). Namely, in 2018, Serbia introduced a free visa regime for citizens of Burundi because the Government of this country withdrew the recognition of Kosovo*’s unilaterally declared independence.[152] Following this, hundreds of Burundian citizens moved to Serbia and applied for asylum.

Even though the number of issued certificates increased, the practice of BPSB is unpredictable, inconsistent and deprived of any clear criteria. In fact, as the number of arrivals of Burundians was gradually increasing, BPSB allegedly started to introduce different contentious practices including the one which has the following steps:[153]

  1. the police would wait at the exit of the plane with decision on refusal of entry formulars already filled in with all the available details (flight details, time arrival to Serbia, reasons for refusal of entry, etc.) except for the personal details of travellers which are later on taken from their passports;
  2. Burundians are then apprehended right after they would leave the plane and are invited to sign the formulars while they are still not aware of what these formulars mean;
  3. their cell phones and passports are instantly taken away and the personal details from the passport are introduced in decisions on refusal of entry;
  4. if the flight would fly back instantly back to Istanbul, Burundians would be boarded back to the plane threatened with the force;
  5. if individuals manage to decline to board the plane instantly or there is no instant return flight, they are taken to detention premises at the transit zone with the use of force or the threat of the use of force (except for the women and small children);
  6. their arbitrary detention can then last from several hours to several days, as long as the seat on the return flight to Istanbul does not become available:
  7. when the seat at the return flight becomes available, detainees are forcibly taken on the side exit, forced into the police car and driven across the runway to the plane which is already boarded with regular travellers.
  8. decisions on refusal of entry which is in English and Serbian is served to detained individuals prior to their forcible boarding to the plane regardless of decisions being signed or not by detainees.

Regardless of the number of persons who were recognised by airport border authorities as individuals who might be refugees, the most concerning issues which remain are the following:

  1. unlawful and arbitrary deprivation of liberty at the transit zone;
  2. the manner in which decisions on refusal of entry are being issued;[154]
  3. lack of capacity of BPSB officers to recognize persons who might be in need of international protection and those who are not (in line with Article 35 of Asylum Act and Article 83 of Foreigners Act).

Thus, those foreigners who, according to the assessment of BPSB, do not meet the requirements to enter Serbia are deprived of liberty in the transit zone in a manner that can only be described as unlawful and arbitrary. They remain in that status for as long as the air carrier with which they travelled does not secure a place for their flight back to the departing destination; country of origin or a third country.[155] Their detention can last from several hours up to several weeks. However, BPSB does not consider them as persons deprived of their liberty since there are no legal grounds in the current legal framework which governs foreigners stay in the transit zone. Thus, BPSB denies them all the rights they should be entitled to, such as: right to a lawyer, right to inform third person of their whereabouts, the right to an independent medical examination, the right to be served with the decision on deprivation of liberty and the right to lodge an appeal against such decision. Moreover, police officers do not have at their disposal interpreters for the languages which foreigners who might be in need of international protection usually understand, which means that they cannot properly inform them on said rights, including the right to apply for asylum.[156]

The critical consequence of this flawed practice is that people who might be in need of international protection could be denied access to territory and sent back to third countries or countries of origin where they could face persecution or torture and other cruel, inhumane or degrading treatment or punishment. In other words, they are denied access to the territory and the asylum procedure in an arbitrary manner and without examining the risks of refoulement.[157] More precisely, since the new Foreigners Act entered into force in October 2018, foreigners are issued a decision on refusal of entry in the procedure that lacks any guarantees against refoulement,[158] without the possibility to use services of a lawyer and an interpreter, and to lodge an appeal with a suspensive effect.[159]

In June 2019, the Constitutional Court (CC) dismissed as manifestly unfounded BCHR’s constitutional appeal submitted on behalf of Iranian refugee H.D.[160] In November 2016, Mr. H.D. was detained at the airport transit zone for 30 days, in a manner that is described in the paragraph above. The CC’s reasoning gives serious reason for concern and indicates the lack of capacity of this body to examine violations of Article 5 of ECHR,[161] in line with the criteria established in the jurisprudence of the ECtHR.[162] Namely, the Court outlined that the legal framework that had been in force at the time of the applicant’s stay at the airport did not envisage the procedure in which a foreigner can be deprived of liberty in the transit zone. For that reason, H.D.’s claims about unlawful and arbitrary detention could not have been considered as well founded. In other words, the Court failed to conduct an independent test on the existence of deprivation of liberty in the applicant’s case,[163] using the subjective and objective criteria[164] such as the type, duration, effects and manner of implementation of the measure in question.[165] It disregarded completely the fact that Mr. H.D. had been locked in premises at the airport transit zone for 30 days, with limited access to the outside world, without interpretation services and the possibility to hire a lawyer, inform his family on his whereabouts and understand the procedures that would have been applied at him. H.D. was also denied access to asylum procedure. The applicant faced refoulement to Turkey, and further [chain-refoulement] to Iran. Eventually, ECtHR granted the Rule 39 request, submitted by the BCHR.[166] The case was communicated to the Government of Serbia on 12 July 2021 and issues which will be examined are the following:

  1. Was the applicant’s confinement by the immigration officers in the transit zone of Belgrade International Airport, in the period between 31 October and 25 November 2016, in breach of Article 5-1 of the Convention?
  2. Was the applicant’s confinement “in accordance with a procedure prescribed by law”?
  3. Was the applicant informed promptly, in a language which he understood, of the reasons for his deprivation of liberty, as required by Article 5-2 of the Convention?
  4. Did the applicant have at his disposal an effective and accessible procedure by which he could challenge the lawfulness of his confinement, as required by Article 5-4 of the Convention?
  5. Did the applicant have an effective and enforceable right to compensation for his unlawful detention, as required by Article 5-5 of the Convention?

There is no available data on the number of decisions on refusal of entry rendered at the airport ‘Nikola Tesla’. However, CRM has been publishing data on the number of refusal of entries on an annual basis in their annual reports titled ‘Migration Profile of the Republic of Serbia’.[167] According to the said reports, MoI has refused entry to 6,096 foreigners in 2018, 5,214 in 2019 and 3,866 in 2020. The report for 2021 is yet to be published. Unfortunately, it is not possible to extract the data on refusal of entry and nationalities at the airport for the previous years.

During 2021, CSOs (APC, BCHR, IDEAS or KlikAktiv) lawyers were not denied access to the airport transit zone but there were no instances in which lawyers actually entered the zone, as people had been sent back before lawyers came or were informed. However, the practice from previous years remained unchanged and it is still necessary that the person who wishes to apply for asylum explicitly asks for CSO support.

Still, since April 2018, the MoI has been issuing temporary entry cards for the transit zone to CSOs lawyers who were addressed via email or cell phone by foreigners detained at the airport. The main condition for access to transit zone was that lawyers had to know the exact name of the person detained, passport number and arrival flight details. Otherwise, the BPSB would not allow unimpeded access to a person who claimed to be in need of international protection but who could not directly contact CSOs. Most of asylum seekers who addressed CSOs were allowed to enter Serbia after the phone call or an email that was sent by CSOs lawyers. Conversely, not all the persons who are denied access to the territory at the airport are provided with legal counselling since not all of them speak English,[168] nor do they all have access to phones or internet. Accordingly, very often, the people who would receive counsel from CSOs at the airport would state that there are dozens of others who are detained and would wish to apply for asylum or receive additional information on their legal possibilities in Serbia. The European Commission highlighted this problem.[169] Additionally, most of the interventions made by CSOs are conducted over the phone and there are almost no instances in which lawyers go directly to the transit zone in order to provide legal counselling. Thus, it cannot be claimed with certainty that asylum seekers are actually allowed to enter Serbia nor that the lawyers in general strive to stay touch with these people to ensure that they entered Serbia and to, challenge their arbitrary detention at the transit zone. Deeper communication is only established with foreigners who decide to submit asylum application.

In 2021, IDEAS has developed, as an internal document, a methodology for strategic litigation against arbitrary detention and refusal of entry decisions issued by the BPSB, regardless of the will of foreigners to remain in Serbia and actually apply for asylum. This has led to several applications which are being prepared for ECtHR at the time of finalizing of this report.

In 2021, CAT recommended that Serbia should:

‘Ensure access to territory and sufficient and effective protection from refoulement at the Belgrade International Airport by ensuring that persons detained in the transit zone of the airport receive information about their right to seek asylum, including effective access to asylum procedure, immediately and in language they understand;’

It is important to reiterate that the only way to secure the respect for human rights of all the foreigners who arrive at Nikola Tesla Airport and who claim to be in need of international protection would be to grant BCHR, APC, IDEAS, KlikAktivor other CSOs or independent lawyers unhindered access to the entire transit zone, including the detention premises. Additionally, BPSB should start providing information leaflets containing the list of rights and obligations that foreigners have in Serbia. These leaflets should also include a short description of the procedures that could be possibly applied to them, including the expulsion procedure. By combining these two, BPSB would guarantee the respect for the principle of non-refoulement, maintain control of entry and stay on Serbian territory,[170] and establish a partnership with the qualified lawyers who could assist them in making the right decision in every individual case.

To conclude, it is clear that there is an obvious need to establish a border monitoring mechanism at the airport which should be done jointly by UNHCR, CSOs and representatives of the MoI.

 

 

 

[1] Article 15(2) Foreigners Act.

[2] Article 15(3) Foreigners Act.

[3] Article 15(6) Foreigners Act.

[4] Annex 1 Regulation on the Refusal of Entry.

[5] ECtHR, Conka v. Belgium, Application No 51564/99, Judgment of 5 February 2002, EDAL, available at: https://bit.ly/2STSScH; Muminov v. Russia, Application No 42502/06, Judgment of 11 December 2008, para 10.

[6] Article 75(1) Foreigners Act.

[7] Article 75(2) Foreigners Act.

[8] Article 75(3) Foreigners Act.

[9] Article 75(5) Foreigners Act.

[10] Article 75(6) Foreigners Act.

[11] Article 83(2) Foreigners Act.

[12] ECtHR, M.A. v. Lithuania, para 83-84.

[13] See e.g. the Constitution of the Republic of Serbia and legally binding case law of the ECtHR.

[14] BCHR’s email correspondence from 10 to 12 February 2019.

[15] CAT, Concluding observations on the third periodic report of Qatar, 4 June 2018, CAT/C/QAT/CO/3, para. 37-38 and 41-42.

[16] Registration Certificate No. 21/2019/2019 issued by BPSB on 21 February 2019.

[17] BCHR, Right to Asylum in the Republic of Serbia – Periodic Report for January-Mach 2020, available at: https://bit.ly/2LZHGsW, 13.

[18] Ibid.

[19] BCHR, Right to Asylum in the Republic of Serbia 2020, available at: https://bit.ly/37Q36R2.

[20] A11 Twitter, available at: https://bit.ly/3bHKgfZ.

[21] ECtHR, Ozen v. Serbia, Application No. 45794/21, granted on 15 September 2021.

[22] ECtHR, P. v. Serbia, Application No. 80877/13, granted on 23 December 2013 – refoulement from the Belgrade airport ‘Nikola Tesla’ to Greece as a country that could not had been considered as a safe for Iranian political activist; Ahmed Ismail (Shiine Culay) v Serbia, Application No. 53622/14, granted on 29 July 2014 – refoulement from the Belgrade airport ‘Nikola Tesla’ to Somalia where the applicant would have faced persecution as a journalist who was targeted by al-Shabab and H.G.D. v. Serbia, Application No 3158/20, granted on 30 November 2016 – refoulement to Iran of a man who converted from Islam to Christianity

[23] The author of this Report intervened in the case.

[24] Ibid.

[25] ECtHR, M.A. v. Lithuania, Application No 59793/17, Judgment of 11 December 2018, EDAL, available at: https://bit.ly/2txDq72, paras 83-84.

[26] ECtHR, Creangă v. Romania, Application No. 29226/03, Judgment of 23 February 2012, available at: https://bit.ly/3BjU8bI, para. 84.

[27]  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.

[28] CPT, Extract from the 2nd General Report [CPT/Inf (92) 3], p. 6, para. 36, available at: https://bit.ly/3GVD4KU.

[29] ECtHR, Khlaifia and Others v. Italy, App. Nos. 16483/12, Judgment of 15 December 2016, EDAL, available at: https://bit.ly/2Bojevu, para. 92.

[30] ECtHR, Hirsi Jamaa and Others v. Italy, Application no 27765/09, Judgment of 23 February 2012 [GC], EDAL, available at: http://bit.ly/2R5G6Em, paras. 156, 157 and 185.

[31]  ECHR, Article 3.

[32] ECtHR, Čonka v. Belgium, Application no 51564/99, Judgment of 5 February 2002, available at: http://bit.ly/2YJEZ1y, para. 59.

[33] ECtHR, Hirsi Jamaa and Others v. Italy, Application no 27765/09, Judgment of 23 February 2012 [GC], EDAL, available at: http://bit.ly/2R5G6Em.

[34] Radio Free Europe, Srbija diže žičanu ogradu na granici sa Severnom Makedonijom, 18 August 2020, available at: http://bit.ly/3iDWyce [accessed on 10 January 2021].

[35] AIDA, Country Report Serbia, 2020 Update, March 2021, 19.

[36] Decision on the Declaration of the State of Emergency, Official Gazette no. 29/2020; IDEAS, Hod po žici – uticaj epidemije zarazne bolesti COVID-19 na sistem azila u Republici Srbiji – U susret „drugom talasu“ –  preliminiarni nalazi, March 2020, available in Serbian at: https://bit.ly/2MNN1nt, 18-19. hereinafter: Hod po žici, see alsoAIDA, Country Report Serbia, 2020 Update, March 2021, 19.

[37] Ibid., 33-34.           

[38] Frontex, Frontex expands presence in Western Balkans with operation in Serbia, 16 June 2021, available at: https://bit.ly/3H2aG9X.

[39] Precisely, this might lead to a situation in which CRM registers one person in several different camps under different names, including persons who were introduced in Afis because CRM workers do not have access to this database in reception facilities.

[40] This dana is extracted from UNHCR data portal, available: https://bit.ly/3rYbS9O.

[41] European Commission, Serbia 2021 Report, 19 October 2021, SWD(2021) 288 final, available at: https://bit.ly/3Byi8IQ, 49.

[42]  Ibid.

[43] UNHCR dana portal, available at: https://bit.ly/3rYbS9O.

[44] Frontex, EU external borders in 2021: Arrivals above pre-pandemic levels, 11 January 2022, available at: https://bit.ly/33w9fTu.

[45]  AIDA, Country Report Serbia, 2020 Update, March 2021, 19.

[46] Ministry of Defence – Public Procurement, Material for Building the Barbwire Fence, 15 May 2020, available in Serbian at: https://bit.ly/2VzOTl6 [accessed on 10 January 2021]; Radio Free Europe, Ministarstvo odbrane Srbije kupuje žilet žicu za ograđivanje centara za migrante, 20 May 2020, available in Serbian at: https://bit.ly/2NGM51c [accessed on 10 January 2021].

[47] Radio Free Europe, Grupa NVO u Srbiji: Obustaviti tender za žilet žicu, 21 May 2020, available in Serbian at: https://bit.ly/38ibYOc [accessed on 10 January 2021].

[48] Direktno, Srbija zbog migranata diže zid prema Bugarskoj i Makedoniji!, 10 June 2020, available at: https://bit.ly/3gdzOgS [accessed on 10 January 2021].

[49] Most probably in line with Article 3 (a) of the Decree on the State of Emergency.

[50] Radio Free Europe, Ministarstvo odbrane Srbije obustavilo kupovinu žilet-žice, 20 May 2020, available at: https://bit.ly/31Ax3lI [accessed on 10 January 2021].

  • [51] Radio Free Europe, Srbija diže žičanu ogradu na granici sa Severnom Makedonijom, 18 August 2020, available at: http://bit.ly/3iDWyce [accessed on 10 January 2021].

[52] Bojana Lekić, Pushback and Dangerous Games, Brendon Production, available at: https://bit.ly/368FJkK, 36:14.

[53]  More than 95% of persons in need of international protection are entering Serbia from these three countries.

[54] INDIGO acts as an implementing partner of UNHCR at the south of Serbia.

[55] APC, Migracije na jugu srbije, 29 December 2021, available at: https://bit.ly/33xTxHm.

[56] Ombudsman, Serbia: National Report on the situation of human rights of migrants at the borders, ENNHRI, July 2021, available at: https://bit.ly/3JxAnRn, p. 21.

[57]  AIDA, Country Report Serbia, 2016 Update, February 2017, p. 19 and p. 15.

[58] RTS, Migrantsko proleće, 29 March 2017, 12:40, available at: https://bit.ly/3sQtUdq.

[59] Constitutional Court, Decision No. UŽ 1823/2017, Decision of 29 December 2020, EDAL, available at: http://bit.ly/2YJXJhi.

[60] N1, “Patrola vojske i policije ostavila migrante da umru u šumi”, 19 December 2016, available at: https://bit.ly/34SBlZA.

[61]  CAT, Concluding observations on the second periodic report of Serbia, 3 June 2015, CAT/C/SRB/CO/2*, para 15.

[62] CAT, Concluding observations on the third periodic report of Serbia*, 20 December 2021, CAT/C/SRB/CO/3, available at: https://bit.ly/3vd0s4r.

[63] Right to a lawyer, right to inform a third person on their situation and whereabouts and right to an independent medical examination.

[64] ECtHR, M.A. v. Lithuania, Application No 59793/17, Judgment of 11 December 2018, EDAL, available at: https://bit.ly/2txDq72, paras 83-84.

[65] UNHCR data portal, available at: https://bit.ly/3rYbS9O.

[66] BVMN, Pushed-back from a Camp in Serbia to N. Macedonia, and then to Greece, 3 April 2020, available at: https://bit.ly/2SRhfWJ.

[67]  Hod po žici , 34.

[68] BCHR, Right to Asylum in the Republic of Serbia Periodic Report for January – June 2020, July 2020, available at: https://bit.ly/2Y8WDeA, 21-25.

[69]  Ombudsman, Recommendation No. 4232/127/2020, 7 October 2020, available at: http://bit.ly/36nVVPp.

[70]  The author of this report informed the Deputy Ombudsman for Persons Deprived of Liberty on the whereabouts and the contact of victims since he was not able to visit them during the state of emergency and the curfew which implied official permission to move and reside outside the place of regular residency.

[71]  AIDA, Country Report Serbia, 2019 Update, May 2019, p. 19 and 20.

[72] BVMN, The Officers Encouraged the Dogs to Attack, 17 April 2020, available at: https://bit.ly/39ZgGSo and Serbian Authorities Place us 500m above the Border, they Beat you and Bring to the Border, 17 April 2020, available at: http://bit.ly/3iG53np.

[73] BVMN, This gateway has been used to carry out pushbacks from north macedonia to greece repeatedly, 22 October 2020, available at: https://bit.ly/2LRrcTM.

[74] BVMN, They told us to leave van one by one and all of them together beat us, 20 October 2020, available at: http://bit.ly/3iC1Oxa.

[75]  APC Twitter, available at: https://bit.ly/3tnyIGK.

[76] Protection Rights at Borders, Pushing Back Responsibility, April 2021, available at: https://bit.ly/3GUSm2f, p. 7.

[77] Ombudsman, Serbia: National Report on the situation of human rights of migrants at the borders, ENNHRI, July 2021, available at: https://bit.ly/3JxAnRn, 16.

[78] AIDA, Country Report Serbia, 2018 Update, March 2019, 16.

[79]  APC, Migracije na jugu srbije, 29 December 2021, available at: https://bit.ly/33xTxHm, 2.

[80]  AIDA, Country Report Serbia, 2018 Update, March 2019, p. 16-18 and AIDA, Country Report Serbia, 2019 Update, May 2020, 20-21.

[81]  Blic, Migranti i među lubenicama: carinici otkrili 532 “ilegalca”, samo juče sprečeno 45 da uđe u srbiju, 18 June 2020, available at: https://bit.ly/3hIly1f [accessed on 10 January 2021].

[82]  Ombudsman, Serbia: National Report on the situation of human rights of migrants at the borders, ENNHRI, July 2021, available at: https://bit.ly/3JxAnRn, 21.

[83]  MoI, Извештај о спровођењу Стратегије супротстављања ирегуларним миграцијама за период 2018-2020. година, June 2021, available at: https://bit.ly/3Dtss4r, 10.

[84] Article 15 Foreigners Act.

[85] Danas, ’Migrants unhappy with conditions of life’, 27 December 2016, available in Serbian at: http://bit.ly/2koDcN7.

[86] Alo, ‘Da nije vojske i policije – Vulin: Sad bi bilo u Srbiji 20.000 migranata, zamislite to!’, 22 July 2017, available in Serbian at: http://bit.ly/2DGDgRx.

[87] Serbian Army, ‘Престанак ангажовања Заједничких снага Војске Србије и МУП’, 2 April 2018, available in Serbian at: https://bit.ly/2EolHoI.

[88] BETA, ‘MUP: Na dnevnom nivou spreči se ilegalni ulazak 2’0 do 50 ilegalnih migranata’, 26 November 2019, available (in Serbian) at: http://bit.ly/2TdLuYL.

[89] Danas, ‘Vučić: There are currently 3,977 migrants in Serbia, last year we prevented more than 38,000 illegal crossings’, 17 June 2021, available (in Serbian) at: https://bit.ly/3koFNV0 and Ministry of Interior, Извештај о спровођењу Стратегије супротстављања ирегуларним миграцијама за период 2018-2020. година, available at: https://bit.ly/3Dtss4r, 10.

[90] Human Rights Committee, Concluding observations on the third periodic report of Serbia*, 10 April 2017, CCPR/C/SRB/CO/3.

[91]  CAT, Concluding observations on the second periodic report of Serbia, 3 June 2015, CAT/C/SRB/CO/2*, para 15.

[92]  Amnesty International, Europe’s Borderlands: Violations against refugees and migrants in Macedonia, Serbia and Hungary, July 2015, available at: https://bit.ly/1dLK66T, 31-34.

[93] UNHCR, Serbia as country of asylum, August 2012, available at: https://bit.ly/2SevotT, para 13.

[94] CAT, Concluding observations on the second periodic report of Serbia, 3 June 2015, CAT/C/SRB/CO/2*, para 15.

[95] CAT, Concluding observations on the third periodic report of Serbia*, 20 December 2021, CAT/C/SRB/CO/3, available at: https://bit.ly/3vd0s4r, para. 34.

[96] Constitutional Court, Decision No. UŽ 1823/2017, Decision of 29 December 2020, EDAL, available at: http://bit.ly/2YJXJhi.

[97]  AIDA, Country Report Serbia, Update 2019, May 2020, 21.

[98] Constitutional Court, Decision No. UŽ 1823/2017, Decision of 29 December 2020, EDAL, available at: http://bit.ly/2YJXJhi.

[99] DW, Serbia: Court confirms illegal pushbacks into the EU, 22 January 2021, available at: http://bit.ly/3699fH8 [accessed on 24 January 2021].

[100]  Which corresponds to Article 5 (4) of ECHR.

[101]  Which will be further examined by the ECtHR, Hajatolah and Others v. Serbia, Application No 57185/17. The case is yet to be communicated to the Government.

[102] ECtHR, Čonka v. Belgium, Application no 51564/99, Judgment of 5 February 2002, available at: http://bit.ly/2YJEZ1y

[103] ECtHR, Hirsi Jamaa and Others v. Italy, Application no 27765/09, Judgment of 23 February 2012 [GC], EDAL, available at: http://bit.ly/2R5G6Em.

[104] ECtHR, Georgia v Russia, Application no 13255/07, Judgment of 3 July 2014, EDAL, available at: http://bit.ly/3jgBhWs.

[105] Insajder, “Odluka Ustavnog suda potvrda da se migranti proteruju iz Srbije”, 22 January 2021, available at: http://bit.ly/39Wgl2U [accessed on 24 January 2021].

[106] Opinion of the author of this report who acts as a legal representative before ECtHR. The CC found violation of article 4 and 5(1) only.

[107]  ECtHR, O.H. and Others v. Serbia, Application No. 57185/17, 1 August 2017, available at: https://bit.ly/3JyPhXo.

[108] ECtHR, A.H. v. Serbia and North Macedonia, and A.H. v. Serbia, Application Nos. 60417/16 79749/16, 19 October and 27 December 2016 respectively, available at: https://bit.ly/3oVp8dz. The case is litigated by Ms. Olga Đurović, attorney at law form Asylum Protection Center.

[109] See more in BCHR and International Aid Network (IAN), Documenting ill-treatment and collective expulsions of refugees and migrants, January 2019, available at: https://bit.ly/2T8kEl5.

[110] APC, Report on pushbacks on the northern borders of Serbia in 2021, 8 December 2021, available at: https://bit.ly/3vQqzMY, 1-4.

[111]  Večernje Novosti, МИГРАНТИ ПРЕБАЧЕНИ СА СЕВЕРА НА ЈУГ: Више од 300 избеглица транспортовано из Сомбора у Прешево, 4 February 2021, available at: https://bit.ly/36qI0uF; see also, APC, available at: https://bit.ly/36k5v8x.

[112] BVMN, Balkan Region – January 2022, available at: https://bit.ly/3sQqmrD, 4.

[113]  The entire statistical data has been provided by UNHCR office in Serbia.

[114]  UNHCR data portal, available at: https://bit.ly/3rYbS9O.

[115] APC, Report on pushbacks on the northern borders of Serbia in 2021, 8 December 2021, available at: https://bit.ly/3vQqzMY.

[116]  Ibid.

[117]   See AIDA Hungary report.

[118]  The testimonies are available at: https://bit.ly/36aGo55.

[119] BVMN, Testimony Database, available at: https://bit.ly/3Jvmhjs.

[120] A detailed report will be published in late March 2022.

[121]  APC, Pushbacks – januar-jun 2021, 8 December 2021, available at: https://bit.ly/3LHhOw5, 6.

[122]  Available at: https://bit.ly/3gWxyx1.

[123] HHC, World Refugee Day – 1 out of 40,000: Karox, 20 June 2020, available at: https://bit.ly/3h2z0Oe.

[124] BCHR, Mađarska – ovde se ne traži azil, 16 November 2021, available at: https://bit.ly/3JDXSbj.

[125] Telex, He had never been to Serbia in his life, he did not know anyone there, and yet he was pushed-back there, 30 September 2021, available at: https://bit.ly/3I83gmN.

[126] The author of this Report acts as her legal representative.

[127] ECRE, Hungary: New Law on the Lodging of Asylum Applications at Embassies, 19 June 2020, available at: http://bit.ly/2MRn0mX.

[128] Available at: https://bit.ly/3jiyD2h.

[129]  Application No 12625/17, Judgment of 8 July 2021, available at: https://bit.ly/3BwQH1U.

[130]  Ibid., para. 67.

[131] Hungarian Ministry of Interior official data. 

[132]  Data obtained by the UNHCR office in Serbia.

[133] The testimonies are available at: https://bit.ly/3sTBq6z.

[134] BVMN, Testiomony Database, available at: https://bit.ly/3Jvmhjs.

[135] FRA, Migration: Key Fundamental Rights Concerns, available at: https://bit.ly/3BwONyt.

[136] APC, Report on pushbacks on the northern borders of Serbia in 2021, 8 December 2021, available at: https://bit.ly/3vQqzMY, 8.

[137]  IDEAS Report will be published in late May 2021.

[138] UNHCR data portal, available at: https://bit.ly/3rYbS9O.

[139] In December 2021, Rosa-Luxemburg-Stiftung Southeast Europe published the document titled ‘Documenting Human Rights Violation on the Serbian-Croatian Border: Guidelines for Reporting, Advocacy and Strategic Litigation’.Nikola Kovačević, Documenting Human Rights Violation on the Serbian-Croatian Border: Guidelines for Reporting, Advocacy and Strategic Litigation, , Rosa-Luxemburg-Stiftung Southeast Europe, Belgrade 2021, available at: https://bit.ly/3gX9f1J. The aim of these Guidelines is to contribute to better documentation of push-back cases and to provide guide on how to conduct strategic litigation before international bodies for the protection of human rights.

[140]  The testimonies are available at: https://bit.ly/2KJPezk.

[141]  APC Twitter, available at: https://bit.ly/3oNZJ2L; https://bit.ly/39NKFxH and https://bit.ly/3avBZex.

[142] APC Twitter, available at: https://bit.ly/3jhWXkZ.

[143] APC, Report on pushbacks on the northern borders of Serbia in 2021, 8 December 2021, available at: https://bit.ly/3vQqzMY, 9.

[144]  Ibid., 9.

[145] BVMN, Testimony Database, available at: https://bit.ly/3Jvmhjs.

[146]  ECtHR, M.H. and Others v. Croatia, Application Nos 15670/18 43115/18, Judgment of 18 November 2021, available at: https://bit.ly/3LO77b5.

[147] ECtHR, Y.K. v. Croatia, Application No. 38776/21, lodged on 24 July 2021, available at: https://bit.ly/3sSP0YT.

[148]  CPT, Council of Europe anti-torture Committee publishes report on its 2020 ad hoc visit to Croatia, 3 December 2021, available at: https://bit.ly/33z7Rzm.

[149] UNHCR data portal, available at: https://bit.ly/3rYbS9O.

[150] AIDA, Country Report Serbia, 2018 Update, March 2019, 18-20 and AIDA, Country Report Serbia, 2020 Update, March 2021, 26.

[150]  AIDA, Country Report, 2019 Update, 22.

[151]  AIDA, Country Report, 2019 Update, 22.

[152] Društvo putnika Srbije, Srbija ukinula vize za državljane Republike Burundi, 21 June 2018, available at: https://bit.ly/3H3GGKI.

[153] This pattern of behavior was designed on the basis of 27 interviews which the author of this report has conducted with Burundians who managed to access Serbian territory. 

[154]  Article 15 Foreigners Act.

[155]  Article 13(2) Foreigners Act.

[156] CAT, Concluding observations on the second periodic report of Serbia, 3 June 2015, CAT/C/SRB/CO/2, para 15.

[157] ECtHR, Gebremedhin (Gaberamadhien) v France, Application No. 25389/05, Judgment of 26 April 2007, EDAL, available at: http://bit.ly/2RwU82a, para. 66-67.

[158]  Article 15 Foreigners Act.

[159] See by analogy ECtHR, M.A. v. Lithuania, Application No 59793/17, Judgment of 11 December 2018, EDAL, available at: https://bit.ly/2txDq72, para. 83-84, see also CAT, Concluding observations on the second periodic report of Serbia, 3 June 2015, CAT/C/SRB/CO/2, para 15.

[160] Constitutional Court, Constitutional appeal no 9440/16, Decision of 13 June 2019.

[161] Article 27 Constitution.   

[162] ECtHR, Z.A. and others v. Russia [GC], Application nos. 61411/15, 61420/15, 61427/15, 3028/16, Judgment of 21 November 2019, EDAL, [Chamber judgment] available at: http://bit.ly/2R5G6Em.

[163] ECtHR, Nolan and K. v. Russia, Application No. 2512/04, Judgment of 12 February 2009, EDAL, available at: http://bit.ly/36NVSdx, para. 96.

[164] ECtHR, Guide on Article 5 of the European Convention on Human Rights – Right to liberty and Security, 2019 Update, available at: http://bit.ly/2FHSLbl, paras. 9-10.

[165] ECtHR, Amuur v. France, Application no 19776/92, Judgment of 25 June 1996, EDAL, available at: http://bit.ly/2TayPpz, para. 42.

[166]  ECtHR, Arons v. Serbia, Application no 65457/16, Decision on Interim Measures of 24 November 2016.

[167] Available at: https://bit.ly/3H0ILah.

[168] BCHR, Right to Asylum in the Republic of Serbia – Periodic Report for January-Mach 2020, available at: https://bit.ly/2LZHGsW, 12-13.

[169] European Commission, Progress Report: Serbia, 6 October 2020, SWD(2020) 352 final, available at: https://bit.ly/2YaPjPJ, p. 49.

[170] ECtHR, Chahal v. United Kingdom, Application No 22414/93, Judgment of 15 November 1996, EDAL, available at: https://bit.ly/2U22cYJ, para 73.

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection