A country shall be considered as a safe country of origin where, on the basis of the legal situation, the application of the law, and the general political circumstances, it is clear that there are no acts of persecution in the sense of Article 1 of the Refugee Convention, nor of risk of treatment contrary to absolute prohibition of torture and other cruel, inhumane and degrading treatment or punishment.[1] The assessment of safety is conducted in line with the following criteria:
- The relevant laws and regulations of the country, and the manner in which they are applied;
- Observance of the rights and freedoms guaranteed by the ECHR, particularly Article 15(2), the International Covenant for Civil and Political Rights, and the United Nations Convention against Torture;
- Observance of the non-refoulement principle;
- Application of effective legal remedies.[2]
The Asylum Act explicitly recognises that the safe country of origin assessment implies the use of information from sources such as EUAA, UNHCR, the Council of Europe, and other relevant international organisations. Also, the fulfilment of the conditions for the application of the safe country of origin concept shall be established on a case by case basis.[3]
However, it is prescribed that the Government shall determine a List of Safe Countries of Origin, on the proposal of the Ministry of Foreign Affairs which can be revised as needed, taking into account the above enlisted criteria,[4] as well as ‘the views of the competent authorities specified by this Law.’[5] A country included in the List of Safe Countries of Origin may be considered a safe country of origin in a specific case only if the applicant holds the nationality of that country or had habitual residence (in case of statelessness) and has failed to explain why the country in question cannot be considered safe in their case.[6] This list is yet to be adopted.
The safe country of origin concept was applied only once in practice so far and in relation to the citizen of Montenegro.[7] This decision was confirmed during the course of 2019 by both the Asylum Commission[8] and the Administrative Court.[9] No decisions relying on the safe country of origin concept were rendered in 2020, 2021 and 2022 according to the author’s knowledge.
[1] Article 44 Asylum Act.
[2] Article 44 (1) Asylum Act.
[3] Article 44 (2) and (5) Asylum Act.
[4] Article 44 (3) Asylum Act.
[5] Article 44 (4) Asylum Act.
[6] Article 44 (6) Asylum Act.
[7] Asylum Office, Decision No. 26-1720/18, 21 December 2018.
[8] Asylum Commission, Decision AŽ 2/19, 1 March 2019.
[9] Administrative Court, Judgment U 5037/19, 12 June 2019.