Short overview of the asylum procedure

Author

Nikola Kovačević

International Legal Framework

Serbia is a State party to almost all relevant universal and regional treaties and conventions including the 1951 Refugee Convention Relating to the Status of Refugees,[1] 1967 Protocol,[2] European Convention for the Protection of Human Rights and Fundamental Freedoms,[3] UN Convention against Torture and Other Cruel, Inhumane and Degrading Treatment or Punishment,[4] International Covenant on Civil and Political Rights,[5] International Covenant on Economic, Social and Cultural Rights,[6] Convention on the Rights of the Child,[7] Convention on Preventing and Combating Violence against Women and Domestic Violence,[8] Convention on Action Against Trafficking in Human Beings,[9] Convention on the Elimination of All Forms of Discrimination Against Women,[10] Convention on the Rights of Persons with Disabilities[11] European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment[12] and several others.

This further means that persons in need of international protection can address individual complaints/communications/applications to most of the UN and CoE Treaty bodies and that the legal framework and practice related to the field of asylum and migration can be assessed through the other forms of work of these bodies such as monitoring visits, periodic reporting and review, inquiry procedures and others. Also, it is important to note that in September 2023, Serbia ratified the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights[13] while the Optional Protocol to the Convention on the Rights of the Child on a communications procedure is yet to be ratified.[14] Thus, individuals can now address the Committee on Economic, Social and Cultural Rights (CESCR), but not the Committee on the Rights of the Child (CRC). A11-Initiative for Economic and Social Rights (A11) had been advocating for the ratification of the OPCESCR since 2019,[15] launching campaigns, but also securing public promises from Ministers of Human Rights[16] which eventually led to a positive outcome.[17]

Constitutional Legal Framework

Article 16 of the Constitution of the Republic of Serbia[18] stipulates that generally recognised rules of international law and ratified international treaties are an integral part of the legal system of Serbia and that relevant authorities shall apply them directly. Article 18 of the Constitution further confirms that the human rights enshrined in the Constitution shall also be applied directly, as well as human rights arising from the generally recognised rules of international law and in line with the values common to democratic societies and in accordance with international human rights standards, as well as the practice of international bodies for the protection of human rights. And finally, Article 145 (2) of the Constitution entails that courts’ decisions shall be based on the Constitution, laws, ratified international treaties and other generally recognised rules of the international law.

Through cumulative interpretation of the above-outlined constitutional provisions, it can be safely concluded that all ratified universal and regional international treaties, as well as the practice of the ECtHR, UN Treaty Bodies and other relevant international bodies for the protection of human rights, should be interpreted as legally binding by asylum and other relevant authorities. This also implies that the legal framework governing asylum and migration issues should be aligned with the rules outlined in the sub-chapter 5.1., but also to the relevant practice of the bodies for the protection of human rights.

It is also important to note that the Constitutional Court of the Republic of Serbia (Constitutional Court) is entitled to receive individual complaints – constitutional appeals – and that the final outcome of the procedure initiated with the constitutional appeal can be pecuniary and non-pecuniary damage.[19] Accordingly, the Constitutional Court is entitled to examine individual complaints of refugees, asylum seekers and migrants and, in theory, this body can be considered as an effective legal remedy.[20] However, the practice has shown the opposite.[21]

The right to refugee status (‘utočište’) is explicitly enshrined in the Article 57(1) of the Constitution, which reads:

‘Any foreign national with reasonable fear of persecution based on his race, gender, language, religion, national origin or association with some other group, political opinions, shall have the right to asylum in the Republic of Serbia.’

Another relevant provision of the Constitution which recognises persecution in terms of the Article 1 of the Refugee Convention, but also provides wider protection from refoulement is the Article 39 (3) of the Constitution:

‘A foreigner can be expelled only on the basis of a decision of the competent authority, rendered in the procedure governed by law and if they are provided with the right to appeal, and only where they are not threatened with persecution because of their race, gender, religion, nationality, citizenship, belonging to a certain social group, political opinions or where they are not threatened with a serious violation of the rights guaranteed by this constitution.’

Thus, the right to international protection in terms of both international human rights law and international refugee law, revolving around the refugee definition outlined in the Article 1 of the Refugee Convention, and the principle of non-refoulement in terms of both frameworks, is explicitly guaranteed. Also, the constitutional framework and its link with universal and regional treaties for the protection of human rights and the practice of relevant monitoring bodies (ECtHR, CAT, CCPR and others) provides additional layers of protection for persons in need of international protection.

Constitutional appeals submitted by refugees and asylum seekers to the Constitutional Court are also examined under Article 25 of the Constitution which prohibits torture and inhumane or degrading treatment or punishment, and which can be interpreted in line with the practice of the ECtHR and Article 3 of the ECHR, including under the auspices of the non-refoulement principle. Articles 27 to 29 of the Constitution reflect the content of the Article 5 of ECHR, including the Article 5-1-f which is related to immigration detention. Article 36 (2) of the Constitution reflects Article 13 of the ECHR usually read in conjunction with the non-refoulement principle, but also other relevant rights. Article 4 of Protocol 4 to the ECHR was examined by the Constitutional Court through the framework of the Article 39 (3) of the Constitution.[22] Article 26 prohibits slavery and other contemporary forms of slavery such as forced labour. And finally, the Constitution also contains provisions which are related to economic and social rights which can be linked to the inclusion and integration of asylum seekers and refugees: non-discrimination (Article 21), right to work (Article 60), right to health care (Article 68), right to social protection (Article 69), right to education (Article 71) and others.

Asylum legal framework

The asylum system and procedure stricto sensu are mainly governed by the Law on Asylum and Temporary Protection (Asylum Act) that came into force on 3 June 2018.[23] Additionally, relevant are the Foreigners Act,[24] the General Administrative Procedure Act (GAPA)[25] and the Administrative Disputes Act (ADA).[26] GAPA acts as legi generali with regard to the Asylum Act and Foreigners Act in their respective subject matter, as well as the Migration Management Act,[27] which regulates certain issues relevant to the housing and integration of asylum seekers and refugees, alongside the Decree on the Manner of Involving Persons Recognised as Refugees in Social, Cultural and Economic Life (Integration Decree).[28] There are several more laws and bylaws which regulate the House Rules in reception facilities, social and health-care issues, right to work and other aspects related to inclusion and integration of asylum seekers and refugees.

The Asylum Act was introduced in 2018 and is now applied to all asylum applications. All the procedures initiated under the old Asylum Act from 2008 were finalised by the end of 2019.[29] Thus, all the law’s novelties, except for the border procedure, are generally applied in practice.[30]

Ongoing amendments of the Asylum Act

In 2021, the Government was working towards amending the Asylum Act. The MoI initiated dialogues on the amendments and all relevant CSOs were invited to take part in consultations in November 2021. The consultations continued in 2022 and were finalised on 28 February 2023.[31] The MoI shared with CSOs the first draft of the amendments to the Asylum Act which included numerous positive changes such as:

• introduction of the new category of the “foreigner who expressed the intention to lodge an asylum application” who will be entitled to the majority of aspects of the material reception conditions;[32]
• harmonisation of terminology and certain procedural steps governed by GAPA;
• pre-elementary school education and preparation for children under the age of 7 who belong to the category of asylum seekers;
• recognising subsequent applicants as persons entitled to the same rights as first-time asylum seekers, including the right to have ID cards.

Suggestions of amendments to the First Draft of the amendments to the Asylum Act were proposed by some of the CSOs after the consultations. IDEAS and other CSOs suggested the following changes, which to a certain extent, reflect the proposals of other CSOs:

• prescribing more precise criteria for the assessment of the possibility for asylum seekers to enjoy protection from persecution in the country of origin – Article 31;
• excluding the deadline 15+8 days for submission of asylum application – Article 36 (see Lodging an application);
• introducing specific evidentiary activities such as forensic expert opinions and witnesses – Article 37;
• clarifying the registration of asylum seekers at the border in terms of their detention and introducing provisions which govern the procedure and competent body for a decision on deprivation of liberty for the purpose of the asylum procedure or forced removal– Article 48;
• making a clear distinction between measures which imply deprivation of liberty and measures which are related to the limitation of the freedom of movement – Article 78;
• introducing clear criteria for the application of the safe third country concept – Article 45;
• specifying which aspects of material reception conditions should be granted to the newly introduced category of “foreigner who expressed intention to lodge asylum application”;
• harmonisation of provisions on guardianship contained in the Family Law with provisions of the Asylum Act governing accommodation of unaccompanied and separated children (“UASC”).
• Introduction of the biometric ID cards of asylum seekers and persons granted asylum.

It was also suggested that the amendments to the provisions governing the exclusion procedure require more time and external expertise.

Unfortunately, in 2023 all attention was turned to another early Parliamentary elections which took place in December 2023, putting on hold again all legislative activities related to the Asylum Act. In May 2024, the new Government was elected, as well as the new Minister of Interior, and it remains to be seen if, when and in which form the amendments of the Asylum Act will be adopted.

Overview of the asylum procedure

The procedure for seeking asylum in Serbia is as follows: a foreigner may ‘express the intention to lodge an asylum application’ within the Serbian territory or at border crossing point (including the Nikola Tesla or Niš Airport in Belgrade), following which they are registered by the officials of the MoI before whom they have expressed the intention and receive a registration certificate of having done so.[33] The asylum seeker is then expected to go to their designated asylum centre, or to notify the Asylum Office should they wish to stay at private accommodation within 72 hours.[34] It is not possible to express such intention in diplomatic or consular representations of Serbia. In other words, the potential applicant must be present on Serbian territory or under the effective control of Serbian Border Police or other state authority.

Upon arrival at the centre or private accommodation, the asylum seeker should wait for 15 days for the Asylum Office to facilitate the lodging of the asylum application and then to issue them personal identity documents for asylum seekers. It is also possible to lodge a written application within 8 days after the expiry of the above-mentioned deadline.[35] Afterwards, an asylum officer will conduct the asylum interview.[36]

The Asylum Office is under the legal obligation to decide on the application within 3 months of its submission, during which time one or more hearings must be held in order to establish all of the facts and circumstances relevant to rendering a decision. This deadline could be extended up to 9 months.[37] Thus, the maximum length of an asylum procedure is 1 year.

In the case of a negative decision (in-merits or inadmissible), the asylum seeker has 15 days to lodge an appeal to the Asylum Commission. A negative decision also contains an order to leave the country and a deadline to do so, which can be up to 30 days. However, when the decision on rejection becomes final (confirmed by the Administrative Court), the relevant MoI unit for foreigners renders an additional expulsion decision in cases where the applicant has failed to voluntarily leave the territory of the State within the given deadline.[38] Only the expulsion decision creates grounds for forcible removal and potential immigration detention imposed for the purpose of forced removal and in line with the Foreigners Act.

The Asylum Commission has to decide and deliver the second instance decision to the applicant within 60 days of the appeal being lodged.[39]

An onward appeal to the Administrative Court must be submitted within 30 days from the delivery of the second instance decision and there is no deadline within which the third instance body has to decide.[40] Both remedies have automatic suspensive effect.[41]

Constitutional Court procedure

The last instance in the Serbian legal system is the Constitutional Court. The constitutional appeal does not have an automatic suspensive effect. It is possible to lodge a request for interim measures to the CC, but several cases, which implied forcible removal, have shown that this mechanism is weak and slow, as the decision on the interim measure was taken several months after the request was lodged.[42] This was recognised by the ECtHR which has granted interim measures submitted by Serbian lawyers on at least 10 occasions in the past several years.[43]

According to the Constitutional Court, in its practice, there were in total 10 constitutional appeals related to the alleged violations of human rights of refugees, asylum seekers and migrants decided by this body, out of which 5 have been concluded, while 5 are still pending.[44] This data seems to be inaccurate, and the following decisions have been collected for the purpose of this report.

The practice of the Constitutional Court for the period 2008-2023 – concluded and pending cases

International legal procedures

In the past several years, the number of asylum seekers addressing UN Treaty Bodies, UN Special Procedures and the ECtHR has been increasing. Currently, there are 9 communicated cases pending before the ECtHR related to the rights of asylum seekers:

1. M.H. v. Serbia;[55]
2. A.K. v. Serbia;[56]
3. M.W. v. Serbia;[57]
4. A.H. v. Serbia and North Macedonia and A.H. v. Serbia;[58]
5. H.G.D. v. Serbia;[59]
6. O.H. and Others v. Serbia;[60]
7. E.B. v. Serbia and A.A. v. Serbia;[61]
8. S.B. and Others v. Serbia.[62]
9. Mohamed v. Serbia[63]

Also, there is at least 1 complaint pending before the Committee against Torture: Sulaimanov v. Serbia.[64]

[1] UNGA, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, available at: https://bit.ly/2GCMu4R, hereinafter: Refugee Convention.

[2] UNGA, Protocol Relating to the Status of Refugees, 31 January 1967, United Nations, Treaty Series, vol. 606, p. 267, available at: https://bit.ly/3kbPLpf, hereinafter: the Protocol.

[3] CoE, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5, available at: https://bit.ly/3oUqWkC, hereinafter: ECHR.

[4] UNGA, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty Series, vol. 1465, p. 85, available at: https://bit.ly/3auJjbJ, hereinafter: UN CAT.

[5] ICCPR, UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at: https://bit.ly/3nBpWBv, hereinafter: ICCPR.

[6] UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3, available at: https://bit.ly/3mRV4fy, hereinafter: ICESCR.

[7] UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3, available at: https://bit.ly/3mfoK5y, hereinafter: UN CRC.

[8] Council of Europe, The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, November 2014, ISBN 978-92-871-7990-6, available at: https://bit.ly/3G0FoSJ.

[9] Council of Europe, Council of Europe Convention on Action Against Trafficking in Human Beings, 16 May 2005, CETS 197, available at: https://bit.ly/2IRT9ZV, hereinafter: Istanbul Convention.

[10] UNGA, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13, available at: https://bit.ly/3ucAOxX, hereinafter: UN CEDAW.

[11] UN General Assembly, Convention on the Rights of Persons with Disabilities: resolution / adopted by the General Assembly, 24 January 2007, A/RES/61/106, available at: https://bit.ly/3wVbbNZ, hereinafter: CRPD.

[12] Council of Europe, European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, 26 November 1987, ETS 126, available at: https://bit.ly/3h2KQXQ.

[13] UNGA, Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: resolution / adopted by the General Assembly, 5 March 2009, A/RES/63/117, available at: https://bit.ly/3ydMXBD, hereinafter: OPCESCR.

[14] UN Human Rights Council, Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure: resolution / adopted by the Human Rights Council, 14 July 2011, A/HRC/RES/17/18, available at: https://bit.ly/3tFVecN.

[15] A11, The Initiative to Ratify the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, 1 April 2019, available at: http://bit.ly/3L0Bxca.

[16] Insajder, Čomić: Do kraja godine ratifikacija Opcionog protokola; Ćurčić: To bi bila velika stvar za zaštitu ljudskih prava u Srbiji, 25 February 2022, available in Serbian at: http://bit.ly/3ZlZpes.

[17] A11, Parliament ratifies the international treaty allowing for enhanced protection of economic and social rights, 11 September 2023, available at: https://bit.ly/45BKEZ5.

[18] Official Gazette of the Republic of Serbia, nos. 98/2006 and 115/2021.

[19] Constitutional Court Act, Official Gazette of the Republic of Serbia, nos. 109/2007, 99/2011, 18/2013, 103/2015 and 40/2015, available in Serbian at: http://bit.ly/2NHOtVm, Articles 82 to 92.

[20] On the effectiveness of the Constitutional Court see more in the following chapters.

[21] More about the practice of the Constitutional Court in the following chapters.

[22] Constitutional Court, Decision No. UŽ 1823/17, Decision of 29 December 2020, available in Serbian at: http://bit.ly/3fk0aPD.

[23] Official Gazette no. 24/2018.

[24] Official Gazette no. 24/2018 and 62/2023

[25] Official Gazette no. 18/2016 and 95/2018.

[26] Official Gazette no. 111/2009.

[27] Law on Migration Management of the Republic of Serbia, Official Gazette of the Republic of Serbia, no. 107/2012.

[28] Official Gazette, no. 101/2016 and 56/2018.

[29] AIDA,, Country Report: Serbia, Update on the year 2019, May 2020, available here, 32.

[30] Ibid., 18-19.

[31] The final proposal of the amendments is available in Serbian language on the following link: http://bit.ly/3yepU9U.

[32] At this moment, only persons who lodged an asylum application are recognized as a category which is entitled to material reception conditions.

[33] Article 35 Asylum Act.

[34] Ibid.

[35] Article 36 Asylum Act.

[36] Article 37 Asylum Act.

[37] Article 39 Asylum Act.

[38] Article 74 (1-8) Foreigners Act.

[39] Article 95 Asylum Act and Article 174 GAPA.

[40] Article 96 Asylum Act.

[41] Ibid.

[42] Constitutional Court, Decision No. UŽ 3548/2013, Decision of 19 September 2013, available in Serbian at: http://bit.ly/3cG4bhy.

[43] 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.

[44] Constitutional Court, Response to the freedom of information request no. 17/1 of 9 January 2023.

[45] Available at: http://bit.ly/3kKVHME.

[46] Available at: http://bit.ly/3ygC4yO.

[47] Available at: http://bit.ly/3cG4bhy.

[48] Available at: http://bit.ly/3F5BmZk.

[49] Not available online.

[50] Not available online.

[51] Available at: http://bit.ly/3oeSFND.

[52] Not available online.

[53] Available at: http://bit.ly/3fk0aPD.

[54] For the said cases see more in BCHR, Right to Asylum in the Republic of Serbia 2022, available at: https://bit.ly/3F4yJXE, para. 3.4, hereinafter: Right to Asylum 2022.

[55] Application No. 62410/17, 23 October 2017, available at: https://bit.ly/34MuQHJ.

[56] Application No. 57188/16, 3 October 2016, available at: https://bit.ly/3rVFfde.

[57] Application No. 70923/17, 29 September 2017, available at: https://bit.ly/3oT0Ot0.

[58] Application Nos. 60417/16 79749/16, 19 October and 27 December 2016 respectively, available at: https://bit.ly/3oVp8dz.

[59] Application No. 3158/20, 12 December 2019, available at: https://bit.ly/3HU3uxR.

[60] Application No. 57185/17, 1 August 2017, available at: https://bit.ly/3JyPhXo.

[61] Application Nos. 50086/20 50898/20, available at: https://bit.ly/3GUV4F1.

[62] Application No. 22463/17, 8 February 2017, available at: https://bit.ly/3JuDPfu.

[63] Application No. 4662/22, 4 July 2022, available at: http://bit.ly/3ynDYO8.

[64] Communication No. 1145/2022, 10 August 2022, see more at Danas, CAT zatražio od Srbije da se uzdrži od izručenja državljanina Kirgistana, 24 August 2022, available at: http://bit.ly/3L6gzZe.