Access to the territory and push backs

Legal access to the territory and effective access to means of legal entry at the border crossings

As regards legal access to the territory, third country nationals cannot apply for a (humanitarian) visa, specifically with the intention to apply for international protection upon arrival, nor are there any resettlement or relocation operations in place.

Also, Serbia has not designated official border crossings as places where asylum applications can be lodged or registered in terms of the standard which is reared to the existence of the effective access to means of legal entry,  which should be praised. In other words, persons in need of international protection who successfully access territory or who are not subjected to pushbacks or any other form of collective expulsion, can access asylum procedure regardless of the place of entry – official border crossing or green border area.

Hindering of access through legal ways

Serbia being neither a member of the European Union nor a party to the Dublin Regulation, there is nothing equivalent to a Dublin procedure in the country. However, Serbia has concluded Readmission Agreements with the European Union^[1] as well as North Macedonia,^[2] Albania,^[3] Montenegro^[4] and Bosnia and Hercegovina (‘Bosnia’).^[5]

As regards the Readmission Agreement with the EU, it has not been functioning properly since September 2015 and Hungary mostly expels foreigners to Serbia in an informal manner, amounting to a push-back policy. The same practice is applied by Croatia and Romania in the vast majority of cases. According to the MoI, in 2019, not a single foreigner was returned to Serbia under the Readmission Agreement, while in 2020, 84 readmission requests were accepted by Serbia. It is not clear from which states foreigners were returned as well as how many foreigners were included in these 84 requests.^[6] In 2022, a total of 678 foreigners was readmitted to Serbia from neighbouring countries.^[7]

The same can be said for the functioning of the Readmission agreement with North Macedonia. The NPM outlined in its Report the following:

‘The NPM also wants to point out the difficult implementation of readmissions with North Macedonia. According to the data obtained during the visit, in 2020, 68 requests for readmission of same number of persons were submitted to North Macedonia and all requests were rejected, usually with the explanation that there was no evidence that a foreigner entered Serbia from North Macedonia, even though, according to officials’ statements, that was more than obvious, and all the necessary evidence was provided.’^[8]

These findings remain valid until this date which can be seen from the under-outlined statistical data.

In April 2019, Serbia and Austria signed an agreement that would allow Austria to send back to Serbia asylum seekers whose asylum applications have been rejected in merits and who had entered from Serbia. Upon their return, they are to be placed in an “adequate” accommodation, for which Vienna will pay. What is important to outline is that this agreement is most likely the technical agreement between Serbia and Austria which should serve as foundation for operationalization of the Readmission Agreement which Serbia has signed with the European Union. At the time of writing the agreement has not yet been applied in practice and it triggers debates in both Austria,^[9] and Serbia.^[10]

In November 2022, the President of Serbia Aleksandar Vučić, Austria’s Chancellor Karl Nehammer and Hungarian Presidency Viktor Orbán signed trilateral agreement with an aim to strengthen Balkans border security policies.^[11] Even though it is not clear from this agreement which concrete measures will be undertaken and in line with what kind of procedures, the visible consequences of the agreement are detachments of Austrian and Hungarian border officers to Serbian border with North Macedonia, provision of additional equipment for monitoring of the borders, etc.^[12] As future measures, the heads of Austria, Serbia and Hungary highlighted readmission of those persons who are not in need of international protection. Without disputing the sovereign right of these States to cooperate in managing the mixed migratory flows, the practice of systemic denial of access to territory based on ill-treatment, pushbacks or other forms of collective expulsions has been recorded as the most common practice applied at borders of Serbia and Hungary in 2022. The terminology used at the press conference completely disregarded the category of refugees and asylum seekers, and was only based around the notions of ‘migrants’ and ‘illegal migration’.

For the purpose of 2022 Report, the MoI has delivered statistical data on the number of readmissions returns from and to Serbia. Even though the numbers are quite low,^[13] they should be considered as important for the comparative analysis with the number of pushbacks and other forms of collective expulsions which took place in the same period.

Also, it is important to highlight that persons readmitted from Serbia to neighbouring countries are primarily detained in one of the Immigration Detention Centres, mainly in the one located at the border with Bulgaria (Dimitrovgrad) and in line with the Article 87 of the Foreigners Act. The basis for detention is the forcible removal, so one of the additional preconditions for detention is the issuance and serving of the expulsion order to the foreign national and in line with the Article 77 of the Foreigners Act.

The expulsion order is served in Serbian language and in the procedure in which the acting police officer is not taking in consideration the potential risks of refoulement, where foreigners, and especially those that are in need of international protection, are denied effective possibility to contest this decision. Expulsion decisions, as well as refusal of entry decisions, are rendered in a bureaucratic manner on the template which is in Serbian Cyrillic.  Thus, these decisions are served to foreigners who rarely enjoy access to legal aid and who are not allowed to inform third persons of their whereabouts at the first hours of the arrest, which are also basic safeguards against ill-treatment, including the safeguards against refoulement.^[14] They are not informed in a language they understand on their other rights, but also obligations and applicable procedures, which further undermine their capacity to challenge both detention and expulsion decision.^[15] And finally, the appeal against an expulsion order does not have an automatic suspensive effect.^[16]

Readmission from neighbouring countries to Serbia in 2022

Readmission from Romania to Serbia in the period 1 January 2022 to 31 December 2022

Readmission from Hungary to Serbia in the period 1 January 2022 to 31 December 2022

Readmission from Croatia to Serbia in the period from 1 January 2022 to 31 December 2022

Readmission from Montenegro to Serbia in the period from 1 January 2022 to 31 December 2022

Readmission from Bosnia and Hercegovina to Serbia in the period from 1 January 2022 to 31 December 2022

Readmission from Bulgaria to Serbia in the period 1 January 2022 to 31 December 2022

 There were no readmissions from North Macedonia and Albania to Serbia in 2022.

Readmission from Serbia to neighbouring countries

Readmission from Serbia to Bulgaria in the period from 1 January 2022 to 31 December 2022

Readmission from Serbia to Montenegro in the period from 1 January 2022 to 31 December 2022

Readmission from Serbia to Romania in the period 1 January 2022 to 31 December 2022

In 2022, Serbia has not readmitted foreign nationals to Hungary, Croatia, Bosnia and Hercegovina, Albania and North Macedonia.

The conclusion that can be drawn is that formal cooperation on returns of refugees, asylum seekers and migrants between the States in the Western-Balkan region is basically non-existing. The border policies are mainly based on illegal forms of expulsions which are contrary to the principle of non-refoulement and prohibition of collective expulsions. In 2022, a total of 874 persons were subjected to the readmission procedure, out of which 191 were readmitted to neighbouring countries, especially Bulgaria. Moreover, 172 persons from Syria, Afghanistan, Palestine and Iraq were removed to Bulgaria, and on the basis of an expulsion decision rendered in the above-described manner, while 683 of them were returned to Serbia.

The fact that most of the people returned to Bulgaria could be in need of international protection gives serious reasons for concern because none of their expulsion orders were challenged through an appeal.^[17] Also, the manner in which expulsion orders are rendered and served clearly indicates that these people were sent back without any risk assessment of refoulement. If we add to that that only 4 persons were issued with registration certificate in Belgrade Immigration Detention Centre, while 0 in other detention facilities, it is clear that access to asylum procedure of persons that are in need of international protection who are detained for the purpose of forcible removal is highly questionable.

Refusal of entry under the Foreigners Act

Article 15 of the Foreigners Act foresees 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 for their stay in the Republic of Serbia, for return to their country of origin or transit to another country, or is not in other ways provided with subsistence during their 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,^[18] unless it is established that there are humanitarian reasons or interest for the Republic of Serbia to grant entry, or if the international commitments of the Republic of Serbia indicate otherwise.^[19] The foreigner can lodge an appeal to the MoI – Border Police Administration against the decision.^[20]

In practice, however, the foreigners at Nikola Tesla airport are taken to the detention room and are cut off from the outside world. In other words, their treatment amounts to arbitrary detention in terms of the ECtHR jurisprudence established in the Amuur v. France judgment.^[21] They typically cannot draft and send the appeal against the refusal of entry decisions 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) 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.^[22] This means that, even if the foreigner manages to lodge an appeal, they will have to wait for the decision on their appeal in the country to which they are expelled, which suggests that this remedy is theoretical and illusory.^[23] The refusal of entry decision is mainly applied at the airport, as discussed in the next section, but also at the official border crossings. In 2022, the MoI has provided the statistical overview of the refusal of entry decisions rendered on the land border crossings, and which will be outlined in the ensuing parts of this chapter. However, they were mainly applied at foreigners who are not in need of international protection.

The Foreigners Act contains the entire set of principles which aim to guarantee the respect of non-refoulement in all forcible removal procedures, including 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,^[24] specific position of people with disabilities,^[25] family unity,^[26] 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.^[27] 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 information on the right to lodge legal remedy into a language that the foreigner understands or may be reasonably assumed to understand.^[28] Furthermore, Article 83 envisages that a foreigner may not be forcibly removed to a territory where they would be under threat of persecution on the grounds of their race, sex, sexual orientation or gender identity, religion, nationality, citizenship, membership of a particular social group or their political views, unless they represent a threat for national security or public order.^[29] Regardless of the existence of such exceptions, Article 83(3) strictly prohibits foreigners’ removal to a territory in which they would be at risk of the 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 below. 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 the territory is now based on pushbacks, but also on legal decisions that cannot be effectively challenged before the competent judicial authority since the appeal does not have automatic suspensive effect.^[30]

The guarantees against refoulement that are introduced in the Foreigners Act existed in the Serbian legal framework before this Act came into force.^[31] 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).

Refusal of entry in relation North Macedonia for the period from 1 January 2022 to 31 December 2022

Refusal of entry in relation to Bulgaria for the period from 1 January 2022 to 31 December 2022

Refusal of entry in relation to Romania for the period from 1 January 2022 to 31 December 2022

Refusal of entry in relation to Hungary for the period from 1 January 2022 to 31 December 2022

Refusal of entry in relation to Croatia for the period from 1 January 2022 to 31 December 2022

Refusal of entry in relation to Bosnia and Hercegovina for the period from 1 January 2022 to 31 December 2022

Refusal of entry in relation to Montenegro for the from period 1 January 2022 to 31 December 2022

Refusal of entry at the Belgrade ‘Nikola Tesla’ airport in the period from 1 January 2022 to 31 December 2022

Refusal of entry at Niš International Airport in the period from 1 January 2022 to 31 December 20222

The above outlined numbers indicate that refusal of entry decisions are mainly rendered in relation to foreign nationals who are most likely not in need of international protection. Those who are in need of protection are simply subjected to pushback practices. However, the nationalities of people refused entry at the Belgrade airport (Syria, Afghanistan, Iran, Türkiye, Cuba, Somalia and others) give serious reasons for concern because the receiving states (mainly Türkiye) cannot be in any way considered as safe for refugees and these people are exposed to both risk of refoulement and chain-refoulement. The data obtained by the MoI provide several interesting and contentious details:

• a total of 170 stateless persons was returned to neighbouring countries, out of which 30 was returned to Hungary which does not provide international protection to foreigners who have not applied for the embassy procedure,
• 8 Afghans were refused entry and returned to Hungary, which cannot be considered as acceptable and most likely these people were automatically returned back to Serbia.
• Afghan nationals were returned back from Belgrade airport to Türkiye which is also contentious taking in consideration return policies to Afghanistan in this country,
• Refusal of entry from Serbian airports to Turkish nationals, and in a manner which cannot be considered as adequate due to the lack of risk assessment of risks of refoulement is also worrying, especially if we take in consideration numerous instances in which people fleeing persecution (journalists, political activists and others) from Türkiye were treated in the transit zone (arbitrarily detained, asylum claims ignored, etc.).

Examples of flawed application of the refusal of entry decisions in the period 2019-2022:

• On 10 February 2019, a Burundi citizen (M.F.) addressed the Belgrade Centre for Human Rights (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.^[32] 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.^[33]
• On 21 February 2019, a high-profile political refugee from Türkiye was automatically served a decision on refusal of entry and was about to be returned to Qatar and [possibly] further to Türkiye. Only after BCHR’s intervention did he receive a registration certificate and allowed access to territory and asylum procedure.^[34]
• 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.^[35] There were several cases of asylum seekers from India, for whom it remains unclear if they were allowed to access asylum procedure.^[36]
• In October 2020, BCHR was contacted by a transgender person from Cuba who was allegedly issued the registration certificate but had failed to remain in touch with acting lawyers. Since the interventions are made mainly over the phone, it cannot be excluded that foreigners are denied access to the territory and the asylum procedure, despite the information that legal representatives receive over the phone.^[37]
• In February 2021, a political refugee of Kurdish origin from Türkiye 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 for interim measures. Another similar situation happened the following weekend, and it is obvious that Kurdish refugees from Türkiye are at a very high risk of refoulement at the airport.
• On 15 September 2021, IDEAS and A11 lawyers lodged a request for urgent interim measures in order to prevent expulsion of a Kurdish political activist from Türkiye to his country of origin where he would face a life sentence without parole. The request was granted on the same day and the man decided to flee Serbia upon his release.^[38] This was the fourth Rule 39 request which was granted, since 2013, with regards to persons arbitrary detained at the airport who face expulsion to a third country or to their country of origin where they would face treatment contrary to Article 2 or 3 of the ECHR.^[39]
• On 15 October 2021, a victim of SGBV from Burundi, X., and her daughter were arbitrarily detained at the transit zone of the airport. They were kept there for more than 48 hours, and was forced to sleep on the chairs. The mother automatically served with a decision on refusal of entry and were about to be sent back to Istanbul, and then further to Addis Ababa and Bujumbura. Her cousin contacted IDEAS and its lawyers intervened and secured her access to Serbia. Prior to her arrival to Serbia, X. had been raped by the members of Imbonerakure – a 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 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 men 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 was never served her copy of the decision on refusal of entry, but IDEAS later on obtained the copies where it was stated that she had 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.^[40]
• 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 the Burundi secret service Documentation. He also claimed that he was never 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 he managed to enter was thanks to his cousin who was in the Asylum Centre in Krnjača contacted IDEAS.^[41]
• On 10 December 2021, a family of 4 from Burundi arrived at the airport and tried to express intent to submit an 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 were they 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 the 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 on the 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 Türkiye, but without avail. Upon his landing in Bujumbura on 12 January, he was arrested and taken to the building of the 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 the 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 assaulted by Tunisian nationals but was defended by other Burundian boys. On 4 January in the morning, the police came to the 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 the 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 the territory and the asylum procedure.
• Between 14 and 15 February BPSB, Afghan national M.Z. was refused entry and denied access to asylum procedure. He was about to be sent back to Türkiye, but after intervention of IDEAS, he was allowed to access territory and asylum procedure. In his testimony collected later, he claimed that he addressed border police in English, but that he was just served with ‘some papers’ (refusal of entry) which he refused to sign.
• On 16 February, Cuban Y.A.E. national whose brother in law is a political dissident from San Isidro was arbitrarily detained and served with the decision of refusal of entry at the Belgrade airport. Since he only spoke Spanish language, he was not able to elaborate on the risk of persecution that he faces in Cuba. He was denied access to territory and asylum procedure and was forced to sign refusal of entry decision. Only after IDEAS intervention he was issued with the registration certificate.
• On 30 May 2022, the ECtHR granted the Rule 39 request in relation to Narin Capan, Turkish journalist of Kurdish origin who fled Türkiye and Kurdistan in Iraq after she was sentenced to spreading terrorist propaganda and after she avoided assassination in Erbil. She spoke excellent English and was clearly outlining to BPSP officers that she cannot go back due to the above-mentioned reasons. However, her claims were ignored, she was detained for three days and was about to be boarded to the plane, when the Strasbourg Court issued interim measure.^[42] In her testimony which was recorded for the purpose of ECtHR procedure she explained in details modus operandi of BPSB and the manner in which people are forced to sign refusal of entry, without interpreted, without access to legal aid and while ignoring arguable claims. The testimony will be used for the purpose of another procedure against Serbia which is related to arbitrary detention and another attempt of forcible removal without any risks assessment of refoulement in line with the Article 83 of Foreigners Act.
• On 9 December 2022, 3-member family from Iran was refused entry and arbitrarily detained.^[43] M.B. and his family fled political persecution and criminal procedure in which one of the prescribed penalties, in line with Iranian Criminal Code, was death sentence. The BPSB officers attempted several times to board the family to the plane, but the family provided physical resistance including in the bus taking them to the plane on a runway – morning of 9^th December 2022. BPSB ignored IDEAS emails and phone calls, lawyers were denied access to the transit zone and the ECtHR interim measure request was used as the last resort. The Rule 39 request was granted on the same day. During the testimony collection in IDEAS office, after M.B. and his family were allowed to access territory, the family in details described treatment at the airport, mental and milder versions of physical violence, treatment of other detainees (including from Afghanistan), but also the interview with the FRONTEX officer. IDEAS informed FRONTEX fundamental officers about the case.

In 2022, there were at least 34 interventions at the Belgrade airport performed by IDEAS, but also BCHR,^[44] in which 72 persons required legal aid from the transit zone. The legal aid was required via phone or through family members or friends who contacted UNHCR and its partners. The question that remains open is what was the destiny of those persons in need of international protection who were not able to contact legal aid providers, especially when it comes to nationals of Syria, Afghanistan, Türkiye, but also Cuba, Burundi, Iran or Stateless people? It is also important to note that people who were highlighted as stateless in the MoI response were most likely not even assessed as such,^[45] but the MoI did not even attempt to identify them. In other words, these could have been people who destroyed their travel documents and who originated from countries where they could face persecution. All of these problems were briefly outlined in the EU Progress Report.^[46]

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 entitled to render a decision on refusal of entry, but also to develop standard operational procedures which would help border officers to recognise different vulnerable categories of persons on the move.  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 who might be in need of international protection understand. In practice, however, interpreters do not seem to be employed. Additionally, a person who is about to be denied access to territory should be afforded adequate and free of charge legal assistance. Finally, the implementation of the Foreigners Act should be made transparent and border monitoring activities, as recommended by the CAT, would dispel any existing doubts on the flawed practices of border authorities. One of the standards of the European Committee for the Prevention of Torture and Inhumane and Degrading Treatment or Punishment (CPT) implies that detaining authority should serve foreign nationals deprived of their liberty with multi-lingual form which contains rights, obligations and applicable procedures in a language which the foreigner understands.^[47]

It is also worth mentioning that in light of the recent ECtHR judgment in M.A. v. Lithuania,^[48] the Foreigners Act should be amended to introduce automatic suspensive effect of the appeal against the decision on refusing the entry. The recent Strasbourg Court jurisprudence in cases such as A.I. and Others v. Poland,^[49] or A.B. and Others v. Poland, further confirm the above-highlighted necessity.^[50] The findings in these judgments also indicate that the practice at Serbian airports can also amount to collective expulsion in terms of the Article 4 of Protocol 4.

Informal pushbacks

Pushbacks from Serbia

Access to the territory for persons in need of international protection has continued to remain a serious concern in 2022.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^[51] according to both the subjective and objective criteria of the ECtHR;^[52]
• denial of access to a lawyer, right to inform a third person on their situation and whereabouts and right to an independent medical examination;^[53]
• 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;[54]
• denial of access to asylum procedure;[55]
• 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.;[56]
• forcible removal without examination of individual circumstances of each person or outside any legal procedure;[57]
• lack of assessment on any risks of refoulement and chain-refoulement[58] 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.[59]

The COVID-19 pandemic did not lead to imposing additional restrictive and contentious border polices in 2022, as it was the case in 2020.[60] 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.^[61] However, the practice of collective expulsions continued, regardless of the pandemic circumstances.^[62]

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.[63] The FRONTEX officers are designated on the border with Bulgaria, but there are not allegations on human rights violations made against FRONTEX officer that are known to the author of this Report.

As outlined above, IDEAS has addressed FRONTEX fundamental rights officers with regards to the case of attempted forcible removal of Iranian refugee family to Türkiye and further to Iran from Belgrade airport. Even though the allegations were not made against FRONTEX, the collected testimony indicates that the family briefly spoke with one of the FRONTEX officers who assured them that they will not be returned. Still, it is important to outline that there were no allegations in FRONTEX officers taking part in the removal procedure or any other contentious practice.

Arrivals

The number of arrivals to Serbia remain high, but it is necessary to consult different sources such as UNHCR, CRM, but also Frontex in order to get the clearest picture possible.

It is not possible to determine the exact number of arrivals to Serbia for several reasons:

• The MoI, CRM and UNHCR apply different methods to collect and compile data on refugees and migrants entering and residing on the Serbian soil;
• A significant number of refugees and migrants are not registered (fingerprinted and photographed) by the MoI. Thus, they are not introduced into the database with fingerprints and pictures of foreigners – Afis. This is the only way to properly identify persons without any ID and which can further prevent the recording of one person several times using a different name or when their name is not properly typed into one of the databases.^[64]
• It is not clear if the FRONTEX data on the number of irregular crossings to the EU from the Western-Balkan countries implies also those foreigners who were pushed-back.

Until 2020, the UNHCR office in Serbia kept 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 conducted with newly arrived foreigners. By using this method, 29,704 persons were recorded as newly arrived in 2019 and 25,003 in 2020.^[65] 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.^[66] 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).^[67]

In 2021, the UNHCR and CRM harmonised their respective methodologies and now apply the 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.^[68] This number almost doubled in 2022, reaching 119,670.  Additionally, in 2022, FRONTEX detected 145,600 cases of irregular border crossings into EU from Serbia and Bosnia outlining nationals of Syria, Afghanistan, Türkiye, Burundi, India and Tunisia as the majority

‘In 2022, there were 145 600 irregular border crossings reported on the Western Balkans route, 136% more than in 2021. This is the highest number of crossings reported on this route since 2015 and about half of all reported irregular entries in 2022. Citizens of Syria, Afghanistan and Türkiye accounted for the largest number of detections. Nationalities that previously had been little on this route were also reported, such as Tunisians, Indians and Burundians.’^[69]

According to Frontex’s information, numbers of irregular border crossings corresponds to a large extent to the number of people residing in Serbian camps. However, in its 2021 Report, FRONTEX outlined that these are persons who repeatedly try to reach their target country in the EU.^[70] The word ‘repeated’ was not used in the 2022 Report, but it is reasonable to assume that this number does not imply that there were 145,600 different persons, but also persons who attempted to cross the EU external borders on numerous occasions, but who were pushed back. 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 a 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 the MoI in the Afis, which cannot be expected in the near future due to lack of capacities of the Border Police Administration.

The number of arrivals per month was as follows:

What is important to underline is the fact that in 2022, a record number of arrivals from Tunisia, Cuba, Burundi, India and Türkiye was recorded. What is also important to mention is that citizens of Tunisia, Cuba, Burundi and India, as well as several other countries were using the air route, flying directly to Belgrade. The reason for this has been the visa policy of Serbia which was established in relation to the countries which have not recognized independence of Kosovo, or who withdrew recognition. With some countries, such as Cuba or Tunisia, Serbia has had a free visa regime since early 1970s.

In its 2022 Progress Report, the European Commission outlined the following:

Serbia’s visa policy is not fully aligned with the EU list of third countries whose nationals are visa exempt or visa required. The following countries that are on the EU list of visa required countries enjoy visa-free travel to Serbia: Armenia, Azerbaijan, Bahrain, Belarus, Bolivia, Burundi, China, Cuba, Guinea Bissau, India, Indonesia, Jamaica, Kyrgyzstan, Kuwait, Kazakhstan, Mongolia, Oman, Qatar, Russia, Suriname, Tunisia and Türkiye.^[71]

Thus, and due to the increased number of irregular entries to the EU of Indian, Burundian, Guinea Bissau and Tunisian citizens, Serbia was pressured to reintroduce visa regime with these countries.^[72] This decision was preceded with the shift in polices at the airport, when several thousand citizens of India (4,516 in total in 2022) and Tunis (2,787 in total in 2022) were refused entry. The free visa regime with Cuba and Türkiye, as well as with Russia.

Apart from 119,670 of arrivals of people from Africa and Asia, in 2022, around 180,000 citizens of Ukraine, Russia, and Belarus were granted some form of temporary residency, mostly on labour, but also family grounds.^[73] According to the Commissariat for Refugees and Migration (CRM), more than 148,000 Ukrainian refugees were recorded in Serbia in 2022, out of which around 26,000 were granted temporary residency, while 1,231 were granted temporary protection.^[74] The remaining continued their journey predominantly towards EU countries.

Pushbacks to North Macedonia, Bulgaria and Montenegro

The so-called Western Balkan route represents a region in which refugees, asylum seekers and migrants are systematically subjected to collective expulsions and very often ill-treatment committed by the hands of border authorities. In 2022, the presence of civil society organisations at the borders with North Macedonia, Bulgaria and Montenegro continued to be limited.^[75] 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.

It is important to note that there are not too many 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.’^[76]

The argumentation of the MoI that refugees and migrants are discouraged from irregular crossings when they encounter border police is simply 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’.^[77] This argument was publicly used for the first time by Mr. Jovan Krivokapić from the Ministry of Defence who stated on national television that refugees and migrants are discouraged when they spot border patrol forces.^[78] 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.^[79] Three months before, a Kurdish family of 7 was left in the forest to freeze to death and only because of CSO InfoPark reaction, was a search and rescue mission carried out and refugees saved.^[80] Accordingly, the credibility of such statements can be verified only if an independent border monitoring mechanism is established, as recommended by the Committee against Torture in 2015^[81] and 2021.^[82]

In one of the Klikaktiv Reports the following was outlined:

‘In the end of September, the Klikaktiv team spoke to a group of four men from Morocco who stated they had been pushed back to Bulgaria by the Serbian police on the green border near the city of Pirot: the police did not issue them with any documentation or provided information on asylum procedure, but allegedly had beat them, took away their personal belongings (3 mobile phones and 350 euros) and made them walk back to Bulgaria.’^[83]

The 2022 Progress Report from 2021 indicates that 14,806 foreign nationals were prevented from entering Serbia, and it is reasonable to assume that some of these people were prevented to enter from Bulgaria and Montenegro.^[84] This data was probably obtained by the MoI who keeps this kind of records, but does not have the practice to disclose it publicly. These numbers are usually disclosed by state officials in the context of assuring the public that Serbia is successfully combating organized crime, smuggling, human trafficking and illegal migration.^[85]

The border with North Macedonia

In 2022, the presence of civil society organisations at the border with North Macedonia continued to be limited.^[86] However, UNHCR and its partners continued to report on incidents involving pushbacks and other forms of collective expulsions to North Macedonia.^[87] APC also published a report containing allegations and statistics on pushbacks to North Macedonia in the first six months of 2021,^[88] but it appears that their activities on this border have become limited in the past period.^[89]

The fence towards North Macedonia 

On 15 May 2020, the Ministry of Defence announced a public procurement for the purchase of 2.5 tons of barbwire for the purpose of fencing asylum and reception centres.^[90] Several CSOs, including A11 and PIN, swiftly reacted to the public statement, condemning the idea and declaring it to be contrary to international human rights law.^[91] Soon after the announcement of the public procurement, an online Portal Direktno announced that the Government of Serbia was planning to build a barbwire fence at its borders with Northern Macedonia and Bulgaria.^[92] At the time, it was not possible to confirm the news, but UNHCR partners noticed that, during the state of emergency, the military had started clearing the land in the border area with North Macedonia.^[93] On 22 May 2020, the Ministry of Defence selected a private company (Žica Best) to build fences around asylum and reception centres. However, on 31 May 2020, the Ministry stopped the public procurement stating that the need for such a measure had ceased to exist after the state of emergency was lifted.^[94] In August 2020, the Radio Free Europe reported that Serbia had built the fence alongside the border with North Macedonia.^[95] 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.^[96]

In July 2022, Klikaktiv reported the following:

‘The construction of the fence on the border between Serbia and North Macedonia continues: between June 2021 and June 2022 a minimum of additional 10-15 km were built. The fence has three layers, one of which is made of barbed wire. Unfortunately, the fence has been notably increased, both in its length and size. The fence is approximately 3 to 4 meters high; between the double fence, there is a space for patrolling army and police vehicles. At the top of the fence, there is barbed wire. At the moment it is tens of kilometres long and is situated on the hills along the border. Due to the fence and in-creased presence of border police, including Frontex (European Border and Coast Guard Agency, in control of the European Schengen Area), some of the refugees have tried to enter Serbia via an alternative route through Kosovo.’^[97]

Pushbacks

The findings of the Border Violence Monitoring Network (BVMN) from 2020 and of UNHCR and APC in 2021 indicate that refugees and asylum seekers arriving from North Macedonia were subject to short-term deprivation of their liberty, searches, occasional ill-treatment and a denial of access to basic rights.^[98] 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 risks of chain refoulement further to Greece or Türkiye. They did not have the possibility to apply for a remedy with suspensive effect in order to challenge their forcible removal.^[99]

According to UNHCR, at least 773 refugees and migrants were pushed back to North Macedonia in 2019, 977 in 2020, 210 in 2021 and 576 in 2022 More detailed reports on pushbacks to North Macedonia were solely published by the BVMN in 2020 and APC in 2021, while there were no reports published by CSOs in 2022. However, the UNHCR reported an increased number of testimonies on pushbacks.

Source: UNHCR.

One case from 2020 deserves 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 were being transferred to the reception centre (RC) in Preševo. Instead, they were dropped off 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.^[102] The group addressed several NGOs, including BVMN, BCHR and IDEAS.^[103] The case was latter on referred to the Ombudsman by the BCHR.^[104] The Ombudsman issued an extremely contentious Recommendation, stating that the MoI and Commissariat for Refugees and Migration (CRM) had failed to prevent ‘uncontrolled movement’ of migrants who were, according to the report, left in front of the RC in Preševo and then went in an ‘unknown direction’. This finding implies that the Ombudsman rejected as not credible the allegations of collective expulsion, even though he was provided with the phone number and location of the victims.^[105] 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.^[106] This case displays a similar pattern as the case of collective expulsion reported by the APC in 2019.^[107]

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 collectively expelled to North Macedonia close to the Serbian border village Miratovac.^[108] Two other reports were published in October 2020 outlining that refugees and migrants were taken respectively from AC Tutin,^[109] and the town Preševo,^[110] to the green border area with North Macedonia close to Miratovac village. APC reported pushbacks to North Macedonia in November 2020.^[111] All the enlisted cases included different forms of ill-treatment, such as: slapping, kicking, hitting with a 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 a 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 pushbacks from Serbia and particularly from North Macedonia to Greece are likely to be happening on a much larger scale.^[112]

An encouraging sign in 2021 was a 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.^[113]

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 others collected by the BVMN from 2020. Still, apart from BVMN in 2020 and APC in 2021, other CSOs 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^[114]

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.^[115]

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.^[116] In June 2020, it was published in the media that up to June 2020, 532 migrants had been prevented from ‘illegally’ crossing the border.^[117] 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.^[118] This part of the Ombudsman’s report contradicts the Ombudsman’s own findings based on the above-cited testimonies compiled in the same document.

Klikaktiv reported in October 2022 that ‘some of the refugees interviewed here stated they had been pushed back by the Serbian police back to North Macedonia, with no physical violence committed during the push back.’^[119]

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.’^[120]

On 15 December 2022, president of Serbia Aleksandar Vucic outlined that in 2022, a total of 45,965 illegal entries from North Macedonia were prevented.^[121] He did not disclose such numbers in relation to arrivals from Bulgaria.

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^[122] 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)

To conclude, it is clear that denial of access to the territory represents the State policy which has remained unchanged in 2022.

International and judicial reactions

Thus, although reports of collective expulsions to North Macedonia and Bulgaria have been decreasing in the past several years, data published by the highest state authorities (MoI, but also the Ombudsman) indicate that pushbacks are still a reality. This 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 a 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 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.^[128] These concerns have also been shared by the CAT^[129] and Amnesty International,^[130] while UNHCR had reported this problem for the first time in 2012.^[131] In 2015, the 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.’^[132] To this date, Serbia has failed to establish an independent border monitoring mechanism. The CAT reiterated its recommendation in 2021 and urged Serbia to:

‘Introduce a border monitoring mechanism that includes representatives of independent entities, such as international Organisations 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’.^[133]

In 2021, the Constitutional Court (CC) confirmed that illegal border practices have been a state practice.^[134] This decision is the first official recognition that relevant state authorities denied access to territory and asylum procedure and carried out collective expulsions.^[135] On 29 December 2020, the CC adopted the constitutional appeal submitted by 17 refugees from Afghanistan who complained to have been collectively expelled to Bulgaria in February 2017.^[136] The case concerned the 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.^[137] 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 the defendants were 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 asylum certificates, the applicants were put in a truck and, instead of being taken to the camp, were taken to the green border area and collectively expelled to Bulgaria.

The Constitutional Court found that Gradina officers had violated the applicants’ right to liberty and security (Article 27 (3) and Article 29 (1) of the Constitution)^[138] by denying them the possibility to challenge the lawfulness of their detention with the assistance of a competent legal representative. The Court dismissed the applicants’ claim that the material conditions of the basement amounted to inhumane and degrading treatment stating, that a period of 12 hours is not lengthy enough to reach the threshold of Article 25 of the Constitution (Article 3 of ECHR).^[139] The Court further found that it is an undisputable fact that the applicants were expelled to Bulgaria. By applying the standards established in the ECtHR jurisprudence in Čonka,^[140] Hirsi Jamaa^[141] and Georgia v. Russia,^[142] the Court determined that the applicants were expelled to Bulgaria outside any legal procedure, without examining the individual circumstances of every applicant and without the possibility for them to provide arguments against their expulsion. The Court also awarded EUR 1,000 to each of the applicants.^[143]

This case was further appealed to the ECtHR. On 12 July 2021, the ECtHR communicated the case to the Government of Serbia so it could answer on the issues raised by the Court in its questions, 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).^[144] The communication phase was concluded at the end of 2022, and the judgment of the Court is pending.

On 14 June 2021, another case referring to informal expulsions 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 a Sudanese applicant who attempted to seek international protection in Serbia. Instead of being registered, he was 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 was never 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.^[145]

Pushbacks towards Serbia and its consequences

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.^[146]

This state of affairs indicates that Serbia’s geographical position puts the country in a difficult situation. Namely, the Serbian asylum system cannot be considered as fair and effective, and thus, it is not attractive to refugees and asylum seekers.^[147] For that reason, most 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 and Croatia. One of the exit routes is also towards Bosnia and Hercegovina.

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 one of the over 20 informal settlements established in abandoned facilities or tent settlements formed in forests and fields. Apart from food, water and a roof over their heads, refugees, asylum seekers and migrants who 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.^[148]In 2022, Klikaktiv and BVMN regularly reported on the appalling conditions in which people on the move experience.^[149]

Thus, illegal border practices of the neighbouring countries are not only contentious from the perspective of domestic laws and international standards but also disregard Serbia’s lack of capacity to accommodate victims of pushbacks in a manner which respects their physical and mental integrity. Simply, Serbia does not have the capacity to address basic needs of refugees, asylum seekers and migrants staying in border area, nor it has the capacity to establish the system which can handle hundreds of informal returns from Romania, Hungary and Croatia outside readmission or any other formal cooperation. Moreover, refugees and migrants tend to use more dangerous ways in crossing the borders, including digging undergrounds tunnel with an aim to cross to Hungary.^[150]

One of the consequences of illegal border polices, very often explained as a ‘necessity’ in the combat against organized crime, irregular migration, human trafficking and smuggling, was the increased number of operations from organized smuggling groups. The state of affairs on the field indicates the failure of such approach. According to the work of investigative journalist Saša Dragojlo from BIRN, organized smuggling groups are consisted of refugees and migrants, local population, but also local police and interpreters like Alen Dayoub Basil, Syrian-Serbian national hired by the police for the purpose of raids and questioning. The report also contains allegations on the involvement of employees of BIA and Military-Security Agency (VBA).^[151] A day after BIRN story about criminal groups was published, armed clash and stabbings happened in the RC Sombor and in areas around the RC between opposed smuggling groups. According to BIRN, organized criminal groups intended to discover journalist sources.^[152] Similar incident occurred in the small town Horgoš, located at the very border with Hungary, when a 20-year-old man was shoot from the automatic weapon (Kalashnikov).^[153] A day after, one the police raids was conducted and the MoI informed the public that weapons such as guns, automatic rifles and knifes were seized.^[154] The final outcome of the armed clash was that one person was killed while the other one wounded.

On 19 February 2023, the N1 television published the documentary ‘Bellow the surface – the Network’ authored by the investigative journalist Ksenija Pavkov which covered the work of another smuggling group on the border with Hungary governed by the Moroccan national using alias ‘the king of Horgoš’ Mohamad Tetuania who metaphorically formed the State of Harabu.^[155] The Documentary provides testimonies of the operations of smuggling groups, ill-treatment they apply on refugees and migrants who are not able to pay for services, the scheme of services and prices for such services, the hierarchy within groups, relationship and distribution of territories among different groups, etc. The testimonies also clearly indicate that RC Sombor and RC Subotica are run by organized smuggling groups in which foreigners have to pay for the stay in state-established camps, in which people who do not abide informal rules are expelled from the camp or physically ill-treated. Also, the Documentary analysis the content of social networks in which these services are publicly offered, and several interviews outlined the link which heads of smuggling groups have with Serbian and Hungarian police. The statements from representatives of local population also imply that armed clashes have been happening on a daily basis, but were not publicised, until the July.^[156]

These, and many other media stories would always trigger reaction of the MoI which would imply raids and massive arrests filmed with cameras. These images included hundreds of refugees and migrants kneeling in the fields with their hand behind their head, surrounded with police special forces with balaclavas and automated weapons.^[157] This kind of treatment undoubtedly amounts to degrading, but it has deeper consequences in presenting refugees and migrants as security threat to the wider public. Thus, in 2022, the actions of the police in north of Serbia undoubtedly incited further animosity towards refugees and migrants who are exclusively portrayed as security threat.  Minister of Police at that time, Aleksandar Vulin, formed ‘the special task force for combating crimes committed by migrants’.

All of these events cumulatively, further incited actions of right-wing groups such as Citizens Patrols (Narodne patrole),^[158] Levijatan,^[159] but also opposition parties such as Dveri.^[160] The Insider TV work has shown that there is not a single criminal case pending against members of these groups for the acts which are based on hate speech, physical attacks and discrimination.^[161] The BVMN outlined the following:

‘People-on-the-move in Serbia are subjected to violence from far-right groups of civilians within the country. These groups seem to have grown in structure, geographical scope and membership in the past years. This type of non-institutionalized violence can take different forms and intensities. One of them is the rise of anti-migrant messages in public spaces, including posters inside public buses or the increasing appearance of hostile graffiti such as “Migrants go home”, especially around the areas usually inhabited and transited by people-on-the-move. Though more subtle and less immediately dangerous than direct physical violence, these messages contribute to the creation of an even more hostile environment for people-on-the-move in the cities and can further impact the general public’s opinion and attitudes. The anti-migrant rhetoric takes a particularly virulent shape on Facebook and other social media platforms, tools that have become integral to the growth and Organisation of these groups all around the world. On Facebook, Narodna Patrola (“Peopleʼs Patrol) and STOP Naseljavanju migranata (“STOP Settlement of migrants”), constitute two of the biggest groups each with daily posts and 1,700 and 318,100 followers, respectively. Outside of the online sphere, and as their name suggests, Narodna Patrola has become increasingly well-known for organizing patrolling vigilante groups in a growing number of cities in the country.’

On the other hand, refugees and migrants could be afforded with better and safer conditions in reception facilities in the south or east of the country. As already outlined, Serbian police has been organising frequent transfers of people staying in appalling conditions in border areas to the Reception Centre in Preševo, especially during the winter times,^[162] but also in summer times after the above-described incidents. Again, 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.^[163]

In 2022, in one of the Klikaktiv reports the following was reported;

Near Sombor, Klikaktiv regularly visited one of the largest squats in the border area, who at the time of a visit in September accommodated approximately 400 people on the move, in an abandoned factory facility. Previously, in July 2022, refugees at the squat reported regular police raids at the location during which the Serbian police detained them, used physical violence and destroyed their personal belongings (tents, backpacks, mobile phones etc.). In August the raids ceased, according to the refugees’ testimonies. In September however, the increased number of people and tents in several of the factories’ buildings was notable, as well as a significant proportion of young unaccompanied boys from Syria (7-14 years old).^[164]

Thus, the consequences of pushbacks to Serbia with regards to persons who might be in need of international protection implies the potential risks of ill-treatment, particularly targeting UASC and other vulnerable groups, and which can be materialised through:

• Ill-treatment committed by trans-national organized criminal groups controlling the border area and reception facilities.
• Poor, unhygienic and unsafe living conditions in the informal settlements
• Poor and unsafe living conditions in reception facilities of RC Sombor, RC Subotica or RC Kikinda.
• excessive use of force by police and special forces of Serbia
• Acts of extreme right-wing groups who act against impunity.

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.^[165] In 2022, the UNHCR collected testimonies on 5,554 persons who claimed to be pushback to Serbia – BiH (2), Croatia (297), Hungary (3,929) and Romania (1,326).

UNHCR statistics on pushbacks to Serbia in 2022^[166]

APC reported 527 pushbacks from Hungary, Croatia and Romania in the first half of 2021 and estimate that on average at least 200 people are pushed back to Serbia every day,^[167] outside of the 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.^[168]

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

Pushbacks from Hungary to Serbia and Embassy Procedure

Since the contentious changes in the Hungarian legal framework in the period 2015-2020,^[169] including the legalisation of a practice which is considered to be in violation of the prohibition of collective expulsions, more than 288,000 persons were expelled back to Serbia. Due to such practice, but also the Court of Justice of the European Union (CJEU) judgment, FRONTEX suspended its operational activities in Hungary.^[170]

In 2020, BVMN published 3 testimonies encompassing 30 people who were pushed back from Hungary to Serbia.^[171] 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 the other 25 cases the following forms of ill-treatment by the 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 lie or sit on the ground, dog attacks, insulting, threating, pepper spraying, etc.^[172] The same trend continued in 2022, when BVMN compiled 77 reports encompassing 1,337 persons who were pushed back from Hungary.^[173]

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.^[174]

APC reported that over 300 people attempted to cross the border with Hungary every day in the first 6 months of 2021.^[175] 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.’^[176]

Particularly worrying examples of push-back practices 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.^[177] In April 2021, an SGBV survivor who arrived from Senegal to Budapest airport was expelled to Serbia.^[178] In September 2021, an Afghan student in Hungary was expelled to Serbia.^[179] 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 victim of human trafficking in Serbia.^[180]

It is noteworthy that in 2020 access to the territory and the asylum procedure in Hungary was made possible only through a consulate in Belgrade.^[181] 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 wait to be summoned in order to submit the Declaration of Intent for Lodging an Application on Asylum (‘DoI’).^[182] The new procedure is described in detail in the AIDA report on Hungary. According to the data obtained by IDEAS, several hundred applicants (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 the Consulate premises to lodge the DoI. So far, only 3 families from Iran (12 persons in total) have entered Hungary. IDEAS and InfoPark have been providing technical assistance to the foreigners interested in applying for asylum. The problems that were detected are the following:

• DoI forms are in English, which represents a serious obstacle for most of the applicants
• The filling out of the DoI forms requires at least basic knowledge of 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 appointment or to lodge the 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 did not know how to use an email
• there is no clear criterion on who will be invited to submit the 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 in submitting the DoI at the Hungarian consulate do not have effective access to the asylum procedure, and it is clear that this mechanism has showed to be theoretical and illusory for all except three families from Iran who were 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 contrary to Article 4 of Protocol 4 of the ECtHR in the case Shahzad v. Hungary.^[183] The ECtHR outlined that the 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.^[184] An identical Judgment as Shahzad was rendered in the case H.K. v. Hungary.^[185] Also, three more applications lodged against Hungary were upheld with Court’s judgment in the case W.A. and Others v. Hungary, where three Syrian refugees were expelled back to Serbia on the basis of the automatic application of the safe third country.^[186]

Official statistics on pushbacks from Hungary to Serbia 2016-2021^[187]

As it can be seen from the table above, the Hungarian immigration authorities have been transparent when it comes to the number of persons expelled back to Serbia under their domestic framework, outside of any readmission procedure, and without the knowledge of Serbian border authorities. According to the data delivered by the MoI, only 30 foreigners were officially readmitted from Hungary to Serbia in 2022.

Due to increasing violence at the Croatian border and taking into consideration that the Hungarian barbwire fence carries significant risk to the life and physical integrity of the concerned persons, in 2018 refugees and migrants started to use the 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, while that number in 2022 was 1,326.

This was one of the reasons why Frontex instigated a joint operation with the Romanian Border Police aimed at preventing and combating irregular migration at the EU border with Serbia.^[188]

BVMN published 3 testimonies referring to 67 persons who were pushed back from Romania in 2020.^[189] In 2021, 20 incidents encompassing 238 persons were 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.^[190] In 2022, BVMN reported 17 pushback testimonies encompassing 126 persons.^[191]

The European Union Agency for Fundamental Rights (FRA) highlighted that the Romanian police reported that in just the first six months of 2021, 28,737 refugees and migrants were ‘prevented’ from entering from Serbia. Thus, this number shows that the push-back practice represents an official state policy in this country as well.^[192] The total number of persons who were ‘prevented from entering’ from Serbia is almost 75,000.^[193]

APC reported that at least 50 persons per day were trying to cross to Romania in the first half of 2021.^[194] IDEAS has observed the trend whereby refugees who cross to Romania continue to the city of Arad and then enter Hungary. After being apprehended by the Hungarian police, they are expelled to Serbia.^[195]

And finally, it is interesting to note that 1,243 persons was officially readmitted to Serbia from Romania, while Kikaktiv published the analysis in which it described individual cases in which people returned to Serbia were denied access to the asylum procedure.^[196]

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 the period 2018-2022^[197]

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 into 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.^[198]

In 2020, BVMN published 9 testimonies involving 93 people who were pushed back from Croatia,^[199] and APC was also reporting on cases of collective expulsions which included severe forms of violence.^[200] 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.’^[201]

APC estimates that in the first 6 months of 2021, approximately 300 to 400 persons were present in the border area with Croatia trying to cross the border.^[202] 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 […]^[203]

BVMN documented 33 cases involving 92 refugees and migrants being denied access to Croatian territory in 2021. Each and every case implied some form of ill-treatment such as: punches, kicks, undressing, hitting with rubber truncheon and others.^[204] As for 2022, only 7 testimonies encompassing 41 persons were recorded by the BVMN, which further indicates that this route has been less frequent.^[205]

And finally, it is important to note that the ECtHR 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 that the State had hindered the effective exercise of the applicants’ right to an individual application by restricting access to their lawyer among other things.^[206]

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.^[207]

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)’s report.^[208]

UNHCR statistics on pushbacks from Croatia to Serbia in 2021^[209]

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 remained unchanged in 2022.^[210] 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 their country of origin, or after their admission into Serbia which ensued after CSOs interventions. Allegations of ill-treatment were particularly worrying in the last quarter of 2022, when free visa regimes with Tunis and India were cancelled and when BPSB has been issuing hundreds of refusal of entry decisions per week, which was the reason why NPM conducted the visit.^[211]  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 truncheons and handcuffing in painful position. Ill-treatment occurred in situations where refugees and asylum seekers were forced to go to the detention premises at the airport or forced to board the plane.^[212]

In 2021, BPSB issued 146 certificates of intention to submit an asylum application (‘registration certificate’). This is a significant increase in comparison to 2020, where only 44 certificates were issued and 2019, where 69 persons was registered by the BPSB.^[213] 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. In 2022, a total of 689 asylum certificates were issued at Serbian airports.

The majority of certificates were issued to 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 its recognition of Kosovo*’s unilaterally declared independence.^[214] Following this, hundreds of Burundian citizens moved to Serbia and applied for asylum. The free visa regime was cancelled in November 2022.^[215]

Even though the number of issued certificates increased in 2022, the practice of BPSB remained unpredictable, inconsistent and deprived of any clear criteria. In fact, as the number of arrivals of Burundians, but also other nationalities (Türkiye, Tunisia, India and others) continued to increase, BPSB continued with contentious practices including one comprising of the following steps:^[216]

1. the police wait at the exit of the plane with decisions on refusal of entry forms already filled in with all the available details (flight details, arrival time in Serbia, reasons for refusal of entry, etc.) except for the personal details of the travellers which are later on taken from their passports;
2. Foreigners, including persons that might be in need of international protection, are then apprehended right after they leave the plane and are invited to sign the forms while they are still not aware of what these forms mean;
3. their cell phones and passports are frequently taken away and the personal details from the passport are filled in on the decisions on refusal of entry;
4. if the flight immediately flies  back to Istanbul, foreigners are boarded back onto the plane threatened with the use of force;
5. if individuals manage to decline to board this immediate boarding or there is no immediate 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 a seat on a return flight to Istanbul does not become available:
7. when a seat on a return flight becomes available, detainees are forcibly taken to the side exit, forced into police cars and driven across the runway to the plane which is already boarded with regular travellers.
8. decisions on refusal of entry in English and Serbian are served to detained individuals prior to their forcible boarding onto the plane, regardless of whether they have been signed or not by detainees.

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

• unlawful and arbitrary deprivation of liberty at the transit zone;
• the manner in which decisions on refusal of entry are being issued;^[217]
• 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, the 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.^[218] 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.^[219]

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.^[220] 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,^[221] without the possibility to use services of a lawyer and an interpreter, and to lodge an appeal with a suspensive effect.^[222]

In June 2019, the Constitutional Court (CC) dismissed as manifestly unfounded BCHR’s constitutional appeal submitted on behalf of Iranian refugee H.D.^[223] In November 2016, Mr. H.D. was detained at the airport transit zone for 30 days, in the manner described 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,^[224] in line with the criteria established in the jurisprudence of the ECtHR.^[225] 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 be 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,^[226] using the subjective and objective criteria^[227] such as the type, duration, effects and manner of implementation of the measure in question.^[228] 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 the asylum procedure. The applicant faced refoulement to Türkiye, and further [chain-refoulement] to Iran. Eventually, the ECtHR granted the Rule 39 request, submitted by the BCHR.^[229] 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’.^[230] According to the said reports, MoI 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. In 2022, the BPSB issued the record of 8,682 refusal of entry decisions, while Border Police Station at Niš airport issued 229 decisions.

During 2022, 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 were 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 contacted via email or cell phone by foreigners detained at the airport. The main condition for access to the transit zone was that lawyers have to know the exact name of the person detained, their 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 contacted 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,^[231] nor do they all have access to phones or internet. Accordingly, very often, the people receiving counsel from CSOs at the airport state that there are dozens of others who are detained and wish to apply for asylum or receive additional information on their legal possibilities in Serbia. The European Commission highlighted this problem.^[232] 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 an asylum application.

In 2021, the 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,^[233] 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 managed jointly by UNHCR, CSOs and representatives of the MoI.

[1] Official Gazette no. 103/2007

[2] Radio Free Europe, Srbija i Makedonija potpisale sporazum o readmisiji, 4 October 2010, available at: http://bit.ly/3kI8Od3 [accessed on 26 February 2021].

[3] Official Gazette no. 7/2011.

[4] Official Gazette no. 13/2013.

[5] Radio Free Europe, Srbija i BiH potpisale Sporazum o readmisiji, 5 July 2013, available at; http://bit.ly/3dSKJ1F [accessed on 26 February 2021].

[6] MoI, Извештај о спровођењу Стратегије супротстављања ирегуларним миграцијама за период 2018-2020. година, June 2021, available at: https://bit.ly/3Dtss4r, 24.

[7] MoI, Response to the freedom of information request no. 072-1-32/23-2, 30 January 2023.

[8] 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.

[9] 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.

[10] BCHR, 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.

[11] Euronews, Austria, Serbia and Hungary strike migration deal, saying EU measures have failed, 17 November 2022, available at: http://bit.ly/3T1LWGk.

[12] RTS, Vučić, Orban i Nehamer potpisali Memorandum o borbi protiv ilegalnih migracija, 16 November 2022, available at: https://bit.ly/3T0VzVG.

[13] Especially in comparison to the number of pushbacks from and to Serbia.

[14] CPT, Immigration Factsheet, CPT/Inf(2017)3, available at: https://bit.ly/3zntMUA, pp. 2 and 3.

[15] Ibid.

[16] Article 80, Foreigners Act.

[17] Response of the MoI, Border Police Administration on the freedom of information request no. 072/1-32/23-3 of 26 February 2023.

[18] Article 15(2) Foreigners Act.

[19] Article 15(3) Foreigners Act.

[20] Article 15(6) Foreigners Act.

[21] Application no 19776/92, Judgment of 25 June 1996, EDAL, available at: http://bit.ly/2TayPpz.

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

[23] 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.

[24] Article 75(1) Foreigners Act.

[25] Article 75(2) Foreigners Act.

[26] Article 75(3) Foreigners Act.

[27] Article 75(5) Foreigners Act.

[28] Article 75(6) Foreigners Act.

[29] Article 83(2) Foreigners Act.

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

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

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

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

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

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

[36] Ibid.

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

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

[39] 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

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

[41] Ibid.

[42] ECtHR, Capan v. Serbia, Application No. 26005/22, Request for Interim Measures granted on 30 May 2022, see more at: Radio Free Europe, Disidenti iz Turske prepušteni na milost Srbiji, 30 May 2022, available at: http://bit.ly/3YLeJQG.

[43] ECtHR, Moazen and Others v. Serbia, Application No. 56318/22, Request for Interim Measure granted on 9 May 2022.

[44] Right to Asylum 2022, p. 33.

[45] Serbia does not have the law which treats stateless people through specially designed procedure.

[46] Progress Report 2022, p. 63.

[47] CPT, Immigration detention, CPT/Inf (2017)3, March 2017, available at: https://bit.ly/3Li4Xzd.

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

[49] ECtHR, A.I. and Others v. Poland, Application No. 39028/17, Judgment of 14 November 2022, EDAL, available at: http://bit.ly/3l67o0m.

[50] ECtHR, A.B. and Others v. Poland, Application No. 42907/17, Judgment of 14 November 2022, EDAL, available at: https://bit.ly/3l67o0m.

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

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

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

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

[55] 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.

[56] ECHR, Article 3.

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

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

[59] The issue of pushbacks and various forms and layers of human rights violations was addressed by different bodies for the protection of human rights such as CPT, The prevention of ill-treatment of foreign nationals deprived of their liberty in the context of forced removals at borders, available at: https://bit.ly/43uWNxA , paras. 69-107.as well as Special Rapportero on Human Rights of Migrants, Human rights violations at international borders: trends, prevention and accountability, A/HRC/50/31, 26 April 2022, available at: https://bit.ly/3JzQgtu.

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

[61] 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 and Country Report: Serbia, 2021 Update, May 2022, p. 37.

[62] Ibid., 33-34.                                                                                                                                             

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

[64] 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.

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

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

[67] Ibid.

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

[69] FRONTEX, EU’s external borders in 2022: Number of irregular border crossings highest since 2016, available at: http://bit.ly/3ZWZAwM; for the past year see also: Frontex, EU external borders in 2021: Arrivals above pre-pandemic levels, 11 January 2022, available at: https://bit.ly/33w9fTu.

[70] Ibid.

[71] European Commission, Serbia: Progress Report, SWD(2022) 338 final 12 October 2022, available at: https://bit.ly/3LedaYB, 64.

[72] BalkanInsight, Serbia Ends Visa-Free Regimes with Tunisia and Burundi, 25 October 2022, available at: https://bit.ly/400dcav and Schengen Visa, Serbia Introduces Visas for Nationals of India & Guinea-Bissau From January 1, 2023, 23 December 2022, available at: https://bit.ly/42aQP3Z.

[73] Mondo, Od početka rata u Ukrajini, u Srbiju je došlo 178.000 ljudi sa područja Istočne Evrope, 16 December 2022, available at: http://bit.ly/429Z2FR.

[74] Dijalog.net, Kroz Srbiju prošlo 148.000 državljana Ukrajine, a 26.000 prijavilo boravište, 24 February 2023, available at: http://bit.ly/3YKcYDr.

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

[76] 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.

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

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

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

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

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

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

[83] Klikaktiv, The Third Quarterly Report in 2022 (July-August-September), available at: https://bit.ly/3Ld2pFU, 20.

[84] Progress Report 2022, 61.

[85] See for example, Government of the Republic of Serbia, Меморандум о сарадњи Србије, Мађарске и Аустрије у борби против илегалних миграција, 16 November 2022, available at: http://bit.ly/3yxUlId.

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

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

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

[89] There were not publicly available reports on the APC’s website: http://www.apc-cza.org/en/.

[90] 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].

[91] 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].

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

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

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

[95] 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].

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

[97] Klikaktiv, The Second Quarterly Report in 2022 (April-May-June), available at: http://bit.ly/3yx2dcX, pp. 7-8.

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

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

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

[101] Ibid.

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

[103] Hod po žici , 34.

[104] 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.

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

[106] 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.

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

[108] 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.

[109] 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.

[110] 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.

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

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

[113] 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.

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

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

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

[117] 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].

[118] 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.

[119] Klikaktiv, The Third Quarterly Report in 2022 (July-August-September), available at: https://bit.ly/3Ld2pFU, 15.

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

[121] YouTube, Вучић: Предузимамо важне мере за сигурност наших грађана, 15 December 2022, available at: http://bit.ly/3l6xtwi.

[122] Article 15 Foreigners Act.

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

[124] 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.

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

[126] 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.

[127] 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.

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

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

[130] 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.

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

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

[133] 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.

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

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

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

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

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

[139] 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.

[140] ECtHR, Čonka v. Belgium, Application no 51564/99, Judgment of 5 February 2002, available at: http://bit.ly/2YJEZ1y.  [141] ECtHR, Hirsi Jamaa and Others v. Italy, Application no 27765/09, Judgment of 23 February 2012 [GC], EDAL, available at: http://bit.ly/2R5G6Em.

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

[143] 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].

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

[145] 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.

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

[147] Progress Report 2022, p. 48.

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

[149] See for example BVMN, Violence Within State Border: Serbia, 26 September 2022, available at: https://bit.ly/3Fi3ys6.

[150] FRA, Migration: Key fundamental rights concerns, Bulletin 1 for 2021, available at: https://bit.ly/3ApVId2, p10,

[151] BIRN, With Police Connections, Serbian-Syrian Translator Turned People-Smuggler, 22 June 2022, available at: https://bit.ly/3A9SBqf.

[152] BIRN, Shootings, Stabbing Reported Near Serbian Migrant Camp, 24 June 2022, available at: https://bit.ly/3l4f17I.

[153] Infomigrants, Serbia: Man shot in border town clash between migrants and smugglers, 28 November 2022, available at: https://bit.ly/3yAlYR4.

[154] Reuters, Serbian police find 600 migrants after shootout near Hungarian border, 28 November 2022, available at: http://bit.ly/3JBdm2W.

[155] N1, ‘Bellow the surface – the Network’, Ksenija Pavkov, 20 February 2023, available at: http://bit.ly/3YH2epp.

[156] Ibid.

[157] YouTube, Ministar Vulin-Subotica akciji usmerena na suzbijanju krivičnih dela i prekršaja koje čine migranti, 14 July 2022, available at: https://bit.ly/3TahUjO.

[158] YouTube, Narodna patrola razgovara sa Ahmedom, 27 March 2022, https://bit.ly/3TemAFh.

[159] YouTube, Pavle Bihali o odnosu prema migrantima, 23. November 2020, available at: http://bit.ly/3T9aoWe.

[160] YouTube, Boško Obradović Migranti stvorili autonomnu oblast u AP Vojvodini, 23 November 2022, available at: https://bit.ly/427HbPF.

[161] Insajder, Postupci u tužilaštvu protiv Narodnih patrola i dalje bez epiloga, 11 January 2023, available at: http://bit.ly/3ywQvyT.

[162] 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.

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

[164] Klikaktiv, The Third Quarterly Report in 2022 (July-August-September), available at: https://bit.ly/3Ld2pFU, pp. 12 and 13.

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

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

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

[168] Ibid.

[169] See AIDA Hungary report.

[170] FRA, Migration: Key fundamental rights concerns, Bulletin 2 for 2021, available at: https://bit.ly/3BwONyt, p. 6

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

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

[173] Ibid.

[174] A detailed report will be published in late June 2023.

[175] APC, Pushbacks – January -Jun 2021, 8 December 2021, available at: https://bit.ly/3LHhOw5, 6.

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

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

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

[179] 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.

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

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

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

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

[184] Ibid., para. 67.

[185] Application No. 18531/17, Judgment of 22 September 2022, available at: http://bit.ly/3LhVaMI.

[186] ECtHR, W.A. and Others v. Hungary, Applications Nos. 64050/16 64558/16 and 66064/16, Judgment of 15 December 2022, available at: http://bit.ly/427BS2z.

[187] Hungarian Ministry of Interior official data. 

[188] FRA, Migration: Key fundamental rights concerns, Bulletin 3 for 2021, available at: https://bit.ly/41yNuLz, p. 9.

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

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

[191] Ibid.

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

[193] FRA, Migration: Key Fundamental Rights Concerns, available at: https://bit.ly/404kWYW.

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

[195] data collected in 2021.

[196] Klikaktiv, Formalizing Pushbacks – The use of readmission agreements in pushback operations at the Serbian-Romanian border, available at: https://bit.ly/3yyttru. 

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

[198] 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.

^[199] The testimonies are available at: https://bit.ly/2KJPezk.

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

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

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

[203] Ibid., 9.

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

[205] Ibid.

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

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

[208] 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.

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

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

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

[211] NPM, НПМ у ненајављеној посети Аеродрому „Никола Тесла“, проверавао услове боравка, 22 November 2022, available at: http://bit.ly/3T7QPxK.

[212] More information in the list of incidents outlined above in the chapter on refusal of entry.

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

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

[215] See more in the chapter on the arrivals to Serbia.

[216] 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. 

[217] Article 15 Foreigners Act.

[218] Article 13(2) Foreigners Act.

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

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

[221] Article 15 Foreigners Act.

[222] 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.

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

[224] Article 27 Constitution.                                                                                                                            

[225] 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.

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

[227] 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.

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

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

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

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

[232] European Commission, Progress Report: Serbia, 6 October 2020, SWD (2020) 352 final, available at: https://bit.ly/2YaPjPJ, p. 49; Progress Report 2022, 48.

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