Access to the territory and push backs

Serbia

Country Report: Access to the territory and push backs Last updated: 23/03/21

Author

Nikola Kovačević

Access to the territory in the green border zone

 

Access to territory for persons in need of international protection has remained a serious concern in 2020, especially after August 2020 when Serbia has established a barbwire fence at its southern border with North Macedonia.[1] This measure came as a surprise. Yet, beforehand, there had been several worth noting events that could have indicated the government’s plans. Also, the COVID-19 pandemic was used as an excuse for imposing contentious border polices, including an absolute prohibition of entering on Serbian territory during the state of emergency that was in force from 15 March to 6 May 2020.[2] This had significantly decreased the number of entries of refugees and migrants to Serbia in the period March-May 2020.[3] Additionally, the practice of collective expulsions continued, regardless of the pandemic circumstances.[4]

In 2020, the number of registered arrivals decreased.[5] A total of 25,003 arrivals were registered by UNHCR and its partners, compared to 29,704 arrivals in 2019. It can be assumed that the number of entries of refugees and migrants has been constant in the past two years, and that the lower figures registered in the period March-May 2020 are due to the measures introduced during the state of emergency.[6] The number of arrivals per month was as follows:

Observed Arrivals in the period 2019-2020
Month Arrivals 2019 Arrivals 2020
January 629 1,700
February 819 2,633
March 1760 1,649
April 1,826 583
May 2,512 270
June 2,366 2,108
July 2,726 3,197
August 3,673 4,146
September 3,686 2,981
October 4,123 2,703
November 3,871 2,022
December 1,713 1,011
Total 29,704 25,003

 

Access to the territory in the context of COVID-19

 

The gradual introduction of harsher border polices started on 10 March 2020 when the Government adopted the Decision Pronouncing the Disease COVID-19 for Infectious Disease (‘COVID-19 decision’),[7] which prohibited entry from countries such as Italy, China, South Korea, Switzerland and Iran. This list was extended on 12 March 2020 to all neighbouring countries, including North Macedonia, Hungary, Bulgaria, Montenegro and Romania,[8] and eventually Greece.[9] On 15 March 2020, the Government introduced an absolute ban on entry to Serbia.[10] Further, on 20 April 2020, the Government amended the Decree on Measures during the State of Emergency (‘Decree on the State of Emergency’) which was in force until 6 May 2020 and which stipulated that, due to the risk of ‘mass and unauthorised crossing of the state border outside the place of border crossing’, an occupation of the private land, along the border line with Northern Macedonia and Bulgaria will be conducted.[11] The last measure turned out to be the construction of a fence towards North Macedonia and under the pretext of COVID-19 prevention. On 13 May 2020, the COVID-19 decision amendments introduced a new condition for entering Serbia – namely the necessity to present a negative PCR test.[12] Eventually, Government abolished the Decision on Closing of the Border Crossings[13] and reintroduced a regular regime on 21 May 2020.[14]

A common aspect to all the above-stated provisions on border control and entry to Serbia (which were in force from 15 March to 21 May 2020) is that none of them contained any guarantees and safeguards for foreigners who are in need of international protection or other humanitarian need and their treatment at the border in the context of their right to access territory. Not a single rule reflecting, for instance, recommendations of UNHCR[15] or from the European Commission[16] on the safe admission of persons in need of international protection, were introduced in the emergency legal framework. More precisely, there were no provisions highlighting the principle of non-refoulement, prohibition of discrimination and COVID-19 preventive measures.[17] The consequences of this framework are best shown by the number of entries in the period April-May, when only 853 refugees and migrants entered Serbia.

It can be concluded that, in the period from 15 March to 21 May 2020, the emergency legal framework completely neglected the safeguards crucial for effective access to territory for persons in need of international protection. The outcome of the emergency legal framework can best be depicted through the sharp drop in the number of registered arrivals in the period spanning from second half of March to the end of May.[18]

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.[19] Several CSOs, including A11 and PIN, swiftly reacted on the public statement, condemning such act and declaring it to be contrary to international human rights law.[20] 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.[21] 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.[22] On 22 May 2020, the Ministry of Defence selected the private enterprise (Žica Best) to build the fence around asylum and reception centres.[23] 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.[24] In August 2020, the Radio Free Europe reported that Serbia had built the fence alongside the border with North Macedonia. [25] 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.[26]

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 2020, the presence of civil society organisations at the borders with North Macedonia, Bulgaria and Montenegro was limited.[27] 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 collective expulsions to North Macedonia.[28]

On the other hand, 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 ceased to exist.

 

The findings of the Border Violence Monitoring Network (BVMN) and of UNHCR indicate that refugees and asylum seekers who were arriving from North Macedonia were subject to a short-term deprivation of their liberty, searches and a denial of access to basic rights.[29] 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.[30] Another common trend detected in 2020 are collective expulsions to North Macedonia conducted directly form reception facilities, such as those in Preševo and Tutin.

 

According to UNHCR, at least 361 persons were collectively expelled to North Macedonia in the period from January – December 2020. More detailed reports on pushbacks to North Macedonia are solely published by the BVMN.

 

Pushbacks to North Macedonia in 2020

January 27
February 40
March 6
April 27
May 0
June 0
July 10
August 22
September 0
October 159
November 30
December 40
Total 361

Source: BVMN.

One case deserves particular attention as it was documented by several CSOs. It relates to a group of 16 persons from Morocco, Iran and Algeria who were collectively expelled from the 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.[31] The group addressed several NGOs, including BVMN, BCHR and IDEAS.[32] The case was latter on referred to the Ombudsman by the BCHR.[33] 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.[34] 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.[35] This case displays a similar pattern as the case of collective expulsion reported by the APC in 2019.[36]

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.[37] Two other reports were published in October 2020 outlining that refugees and migrants were taken respectively from AC Tutin,[38] and the town Preševo,[39] to the green border area with North Macedonia close to Miratovac village. APC reported pushback to North Macedonia in November 2020.[40] 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.

Apart from BVMN, 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 and 2020.[41]

All of these allegations are further supported by the continuing praises of Serbian officials who continued to publicly present ‘the results’ of Serbian border authorities which imply that border police successfully combats ‘illegal entries’ from neighbouring states.[42] In June 2020, it was published in the media that up to June 2020, 532 migrants were prevented from ‘illegally’ crossing the border.[43] In other words, it is clear that denial of access to the territory represents the State policy which has remained unchanged in 2020, and especially during the state of emergency when collective expulsions were not solely taking place at the border, but were conducted in relation to the people residing in asylum and reception centres in the south of Serbia.

The above-described practice has been criticised by the Human Rights Committee which expressed its concerns related to “collective and violent” denial of access to territory.[44] These concerns have also been shared by the UN Committee against Torture (CAT),[45] and Amnesty International,[46] while UNHCR had reported this problem for the first time in 2012.[47] In 2015, the United Nations Committee against Torture (CAT) recommended that Serbia establish “formalised border monitoring mechanisms, in cooperation with the Office of the United Nations High Commissioner for Refugees and civil society organisations.”[48] To this date, Serbia has failed to establish and independent border monitoring mechanism and this issue will likely be raised at the forthcoming 2021 examination of Serbia by CAT.

One of the most important developments in 2020 is the decision of the Constitutional Court (CC), which confirmed that illegal border practices have been a state practice.[49] This decision is the first official recognition that relevant state authorities denied access to territory and carried out collective expulsions.[50] 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.[51] 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.[52] 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)[53] 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).[54] 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,[55] Hirsi Jamaa[56] and Georgia v. Russia,[57] 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[58] This case is also pending before ECtHR.[59]

Pushbacks to Serbia from neighbouring states in 2020

 

Wide-spread push-backs 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.[60] In 2020, the UNHCR office in Serbia and its partners documented that 25,180 persons were pushed backs from Croatia, Bosnia, Hungary and Romania, of whom 13,459 persons was pushed back from Romania, 9,011 from Hungary, 1,975 from Croatia and 735 from Bosnia.[61]

 

Month Bosnia and Hercegovina Croatia Hungary Romania
January 7 306 166 655
February 32 151 102 858
March 81 75 50 643
April 0 30 60 108
May 78 26 289 375
June 156 258 579 1,147
July 80 222 804 1,636
August 98 142 568 1,409
September 54 237 1,067 1,771
October 84 297 1,659 1,600
November 13 104 1,567 1,758
December 52 127 2,100 1,499
Total 735 1,975 9,011 13,459

 

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

As discussed below (see Registration of the asylum application), people pushed-back to Serbia frequently face obstacles in accessing the asylum procedure. In October 2020, a documentary ’Pushbacks and Dangerous Games’ was broadcasted on N1 television. This documentary presented an overview of Croatian push back policies and presented several testimonies from refugees collectively expelled from Croatia. BVMN published 3 testimonies encompassing 30 people who were pushed back from Hungary to Serbia,[62] 9 testimonies involving 93 people who were pushed back from Croatia,[63] 3 testimonies referring to 67 persons who were pushed back from Romania,[64] and 2 testimonies given by 7 persons who were collectively expelled from Bosnia.[65] APC was also reporting on cases of collective expulsions which included severe forms of violence.[66] 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.’[67]

It is noteworthy that in 2020 access to the territory and asylum procedure in Hungary was made possible only through a consulate in Belgrade.[68] 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’).[69] The new procedure is described in detail in the AIDA report on Hungary. According to the data obtained by IDEAS, more than 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. Only one family of Iranian converters from Islam to Christianity have entered Hungary in 2020, while many other families were rejected. IDEAS and InfoPark were providing technical assistance to those foreigners interested in applying for asylum. The problems which 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.

In April 2019, Serbia and Austria signed an agreement which would allow Austria to send to Serbia refused asylum seekers who had entered from Serbia. Upon their return, they are to be placed in an “adequate” accommodation, for which Vienna will pay. As of April 2020, the agreement has not yet been put in practice and it triggers debates in both Austria,[70] and Serbia.[71] As of December 2020, this agreement has not been applied in practice.

 

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 2020.[72] BPSB issued only 44 certificates on intention to submit asylum application (‘registration certificate’), which represents a further decrease in comparison to previous year when 68 registration certificates had been issued.[73] To a certain extent, the lower number can be attributed to the fact that air traffic was limited in 2020 due to COVID-19 circumstances. Regardless of the number of persons who were recognised by airport border authorities as individuals who might be in need of international protection, the most concerning issue remains unlawful and arbitrary deprivation of liberty and the manner in which decisions on refusal of entry are being issued.[74]

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.[75] 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.[76]

In June 2019, the Constitutional Court (CC) dismissed as manifestly unfounded BCHR’s constitutional appeal submitted on behalf of Iranian refugee H.D.[77] 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,[78] in line with the criteria established in the jurisprudence of the ECtHR.[79] 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,[80] using the subjective and objective criteria[81] such as the type, duration, effects and manner of implementation of the measure in question.[82] 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.[83] The case is yet to be communicated to the Government by the ECtHR.

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.[84] 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,[85] without the possibility to use services of a lawyer and an interpreter, and lodge an appeal with a suspensive effect.[86]

According to the information provided by the Ombudsman,[87] BPSB rendered 705 decisions on refusal of entry in the period 1 January to 1 October 2020, including for such nationalities as Turkey (104), Cuba (25), Libya (4) Palestine (1), Burundi (1) and Afghanistan (1).

During 2020, BCHR lawyers were denied access to the transit zone for most of the year, on the basis of COVID-19 restrictions. 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 Centre’s support. Another CSO who occasionally has access to airport transit zone is APC, but no reports on their activities in this regard were published.

Still, since April 2018, the Ministry of Interior has started issuing temporary entry cards for the transit zone to BCHR 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 BCHR. Thus, this practice still does not mean that 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,[88] nor do they all have access to phones or internet. Accordingly, very often, the people who would receive counsel from BCHR lawyer 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. This problem was highlighted by the European Commission.[89] Also, 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.

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 or 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,[90] 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 Ministry of Interior.

 

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 inoculation 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,[91] 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.[92] The foreigner can lodge an appeal to the border authority against the decision,[93] but the appeal does not have suspensive effect.[94] This means that the foreigner 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.[95] The refusal of entry decision is mainly applied at the airport, as discussed in the previous 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,[96] specific position of people with disabilities,[97] family unity,[98] 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.[99] 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.[100] 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.[101] 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 Ministry of Interior 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.[102] 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.[103] 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.[104] 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.[105]

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.[106]

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.[107] There were several instances of asylum seekers from India, for whom it remains unclear if they had been allowed to access asylum procedure.[108]

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.[109]

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.[110] Another similar case happened the following weekend, and it is obvious that Kurdish refugees from Turkey at a very high risk of refoulement at the airport.

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 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,[111] the Foreigners Act should be amended and automatic suspensive effect of the appeal against the decision on refusing the entry should be introduced and in order to meet the standard of effective remedy, as stated in the Court’s judgment.

[1]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].

[2] 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, p. 18-19. hereinafter: Hod po žici.

[3] Ibid., 32.

[4]  Ibid., p. 33-34.

[5]  The data on arrivals to Serbia is published by the UNHCR, available at: https://bit.ly/2PirlAK.

[6]  Hod po žici, p. 26-31.

[7]  Official Gazette no. 23/2020

[8]  The Decision on Closing of the Border Crossings, Official Gazette no. 25/2020

[9]  COVID-19 Decision, Official Gazette no. 23/220, 24/220, 27/220 i 28/220.

[10] Ibid., Official Gazette no. 23/220, 24/220, 27/220, 28/220 i 30/2020.

[11]  Article 3 (a) Decree on the State of Emergency Article.

[12] Point 4 (1) COVID-19 Decision.

[13]  Official Gazette no. 76/2020.

[14]  Hod po žici, p. 31.

[15] UNHCR, Key Legal Considerations on access to territory for persons in need of international protection in the context of the COVID-19 response, 16 March 2020, available at: https://bit.ly/35P5UM2, paras. 2 i 3, hereinafter: UNCHR COVID-19 Guidelines.

[16] European Commission, COVID-19 Guidance on the implementation of the temporary restriction on non-essential travel to the EU, on the facilitation of transit arrangements for the repatriation of EU citizens, and on the effects on visa policy, Brussels, 30 March 2020, C (2020) 2050 final, available at: https://bit.ly/2XCbPjL, hereinafter: EU COVID-19 Guidelines.

[17] UNHCR COVID-19 Guidelines, p. 1 and 2 and EU COVID-19 Guidelines, p. 5 and 6.

[18]  See the above Table.

[19] 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].

[20]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].

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

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

[23]  The Best Wire

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

[25] 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].

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

[27] These are the three countries from which more then 95% of persons in need of international protection are entering Serbia.

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

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

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

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

[32] Hod po žici , p. 34.

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

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

[35]   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.

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

[37] 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.

[38] 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.

[39] 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.

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

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

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

[43] 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]

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

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

[46] 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.

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

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

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

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

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

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

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

[54] 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.

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

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

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

[58] 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].

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

[60] 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.

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

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

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

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

[65] The testimonies are available at: https://bit.ly/2NA7uwf.

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

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

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

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

[70] Taz, Einfach weitergeschoben: Abgelehnte Geflüchtete will Österreich in serbischen Abschiebezentren unterbringen – und für sie zahlen, 17 April 2020, available (in German) at: https://bit.ly/2SY8U3c; Der Standard, Grüne lehnen Abschiebung abgelehnter Flüchtlinge nach Serbien ab, 16 April 2020, available (in German) at: https://bit.ly/2T0LzOv.

[71] Belgrade Centre for Human Rights, BCHR Calls on the Serbian Authorities to Immediately Respond to Claims about the Existence of an Alleged Serbia-Austria Agreement Migrants and Asylum Seekers, 17 April, available at: https://bit.ly/2T31tIh.

[72]  AIDA, Country Report Serbia, 2018 Update, March 2019, 18-20.

[73]  AIDA, Country Report, 2019 Update, p. 22.

[74]  Article 15 Foreigners Act.

[75] Article 13(2) Foreigners Act.

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

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

[78]Article 27 Constitution.

[79] 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.

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

[81] 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.

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

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

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

[85]  Article 15 Foreigners Act.

[86] 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.

[87]  Information was obtained in October 2020 by the Author of this Report.

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

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

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

[91]  Article 15(2) Foreigners Act.

[92]  Article 15(3) Foreigners Act.

[93]  Article 15(6) Foreigners Act.

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

[95] 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.

[96]  Article 75(1) Foreigners Act.

[97]  Article 75(2) Foreigners Act.

[98]  Article 75(3) Foreigners Act.

[99] Article 75(5) Foreigners Act.

[100]  Article 75(6) Foreigners Act.

[101]  Article 83(2) Foreigners Act.

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

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

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

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

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

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

[108]  Ibid.

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

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

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

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