The flawed and automatic application of the safe third country concept has been a major problem of the Serbian asylum system since its very establishment. Throughout the years, asylum authorities automatically relied on the Safe Countries List denying prima facie refugees the possibility for their asylum claim to be decided in merits. Moreover, this practice was equally damaging for the applicants who did not have prima facie claim regarding their country of origin, but had an arguable claim regarding the risk of torture and other forms of ill-treatment in the third countries through which they had travelled before arriving in Serbia and which were proclaimed as “safe” in the asylum procedure.
However, in 2019, the Asylum Office basically ceased applying this concept, which has led to a significant improvement in practice and the sharp increase of the cases being decided on the merits. One of the main reasons of the shift of the Office’s attitude towards the safe third country notion is the fact that there are currently two cases pending before ECtHR. Additionally, the provisions of the new Asylum Act have introduced certain types of boundaries against the automatic application of the safe third country concept. For that reason, the concept was applied in a total of 10 decisions in 2019 concerning 11 persons. Nine decisions were rendered in line with the old Asylum Act, while only 1 in line with the new one. Thus, the dismissal rate on the basis of the safe third country concept dropped from 64% in 2018 to 9% in 2019 which is a significant improvement. This being said, given that the old Asylum Act was applied in 95% of the decisions on the safe third country concept, it is important to reiterate the provisions of the previous legal framework below:
Safe third country under the previous legal framework
First of all, it is important to highlight that, according to the old Asylum Act, a safe third country was defined as “a country from a list established by the Government, which observes international principles pertaining to the protection of refugees contained in the 1951 Convention on the Status of Refugees and the 1967 Protocol on the Status of Refugees… where an asylum seeker had resided, or through which he/she had passed, immediately before he/she arrived on the territory of the Republic of Serbia and where he/she had an opportunity to submit an asylum application, where he/she would not be subjected to persecution, torture, inhumane or degrading treatment, or sent back to a country where his/her life, safety or freedom would be threatened.”
According to the Safe Countries Decision, Serbia used to consider the following as being safe third countries: Austria, Belgium, Bulgaria, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, the United Kingdom, Bosnia and Herzegovina, Croatia, FYROM, Montenegro, Norway, Iceland, Liechtenstein, Switzerland, Monaco, Australia, New Zealand, Japan, Canada, the United States of America and Turkey. Of particular relevance in this context are Bulgaria, Greece, North Macedonia, Montenegro and Turkey.
Taking into consideration the geographical position of Serbia, it is clear that the content of the list was extremely questionable, and this standing was confirmed as correct in practice that ensued after the old Asylum Act came into force in 2008. Thus, the often automatic application of the safe third country concept by the asylum authorities has been extremely problematic for the functioning of the asylum system, especially due to the fact that all bordering countries were considered safe third countries, except for Albania. States such as Turkey, Greece and North Macedonia were considered “safe” merely due to the fact that they are parties to the 1951 Geneva Convention; the fact that Turkey has opted to apply geographic limitations to its implementation of the Convention likewise is not taken into consideration. The list had never been revised in light of well-known case law such as the ECtHR’ judgment in M.S.S. v. Belgium and Greece and relevant reports such as those which were published by UNHCR in relation to North Macedonia and Bulgaria.
Also, it is important to highlight that the vast majority of asylum seekers arrived in Serbia by using a travel route which included at least two of the following states: Turkey, Greece, North Macedonia, Bulgaria and Montenegro. Accordingly, all of these states used to be listed in the Safe Countries Decision and where used as a ground for the dismissal of asylum applications. The most frequent “safe” states in practice have been North Macedonia and Bulgaria, then Montenegro and at the very end Turkey and sometimes even Greece.
Relevant pronouncements on safe third country practice in Serbia
In August 2012, UNHCR published “Serbia as Country of Asylum”, where it found that “Serbia lacks the resources and performance necessary to provide sufficient protection against refoulement, as it does not provide asylum-seekers an adequate opportunity to have their claims considered in a fair and efficient procedure. It further stated that Serbia should not be considered a safe third country, and in this respect, it urged States not to return asylum-seekers to Serbia on this basis” It is also stated that “most of the denials are made on the basis that the applicant comes from a designated safe third country, with no evaluation of the merits of the claim.”
In May 2015, CAT published its Concluding observations on the second periodic report of the Republic of Serbia stating: “Noting the Supreme Court’s decision that expulsion to a “safe third country” should be contingent on the asylum officer’s obligation to assess the situation on a case-by-case basis, the Committee is concerned at reports that, in practice, the safe third country rule is almost automatically applied.”
In July 2015, Amnesty International outlined:
“Article 33(6) of the Law on Asylum provides that an asylum application shall be dismissed in the event that “the asylum-seeker has come from a safe third country, unless he/she can prove that it is not safe for him/her”. Given the absence of an effective asylum process in Macedonia, and the human rights violations to which many migrants and refugees are subjected, including refoulement through push-backs to Greece, Amnesty International considers that Macedonia should not be regarded as a safe third country and that the continued application of the safe country concept would deny refugee status to the majority of asylum-seekers.”
On 21 November 2019, the ECtHR rendered a judgment in the case Ilias and Ahmed v. Hungary, where it found a violation of Article 3 ECHR due to the Hungarian authorities’ failure to carry out an assessment of the risk of refoulement in Serbia and chain refoulement to North Macedonia and further to Greece, taking into consideration available reports such as UNHCR reports on Serbia and North Macedonia or the AIDA report on Serbia. The Court stated that automatic reliance on the Government Decree listing Serbia as a safe third country deprived the applicants of ‘effective guarantees which would have protected them from exposure to a real risk of being subjected to inhuman or degrading treatment in breach of Article 3 ECHR.
On 10 April 2017 Human Rights Committee published its Concluding observations on the third periodic report of Serbia where it stated:
“While acknowledging the current challenges regarding refugees and appreciating the basic legal protections in place, the Committee is concerned about: … the misapplication of the ‘safe third country’ principle, despite concerns regarding conditions in some of those countries;
“The State party should strictly respect its national and international obligations by ensuring an objective assessment of the level of protection when expelling aliens to ‘safe third countries…”
On 3 January 2018, the Committee for the Elimination of Racial Discrimination (CERD) expressed concerns regarding the reports “that most asylum claims filed in the past two years have not been decided upon and that the safe third country principle was applied to the vast majority of asylum claims” and recommended to Serbia to “take urgent measures to ensure timely and fair processing of asylum claims… and to ensure consistent respect for the principle of non-refoulement.”
On 2 August 2019, the Committee against Torture found violation of Article 3 of the UN CAT in relation to the Turkish citizen Cevdet Ayaz who was extradited to Turkey despite the Committee’s interim measure. In its decision, CAT outlined that the manner in which asylum authorities applied the STCC failed to examine risks of refoulement with rigorous scrutiny. The STCC was applied in relation to Montenegro, but Mr. Ayaz was returned to his country of origin. More precisely, due to a flawed application of the STCC, Serbian asylum authorities have entirely neglected to examine risks of refoulement in Turkey where the applicant was eventually extradited. Additionally, extradition authorities did not examine risks of refoulement in Turkey and the question that remains to be resolved in the future is the relationship between asylum and extradition procedure, especially when these two have different outcomes.
The new legal framework
Article 42 of the new Asylum Act prescribes that an asylum application may be dismissed without examination on the merits if the concept of a safe third country can be applied. Although the new law significantly improves the framework of the safe third country concept, there are still ambiguities that may obstruct its adequate application. Namely, according to Article 45 of the Asylum Act, a “safe third country” is a country where the applicant is safe from persecution, as well as from the risk of suffering serious harm. Additionally, the safe third country must ensure that the applicant enjoys the protection from refoulement, which includes access to an efficient asylum procedure.
Interpreting the Asylum Act as a whole, it follows from Article 32 that the Asylum Office collects and considers all the relevant facts, evidence and circumstances when deciding on the merits of the asylum application as well as on the assessment of a certain third country as “safe”. Under “facts, evidence and circumstances” it considers “current reports about the situation in… countries of transit [of the applicant], including the laws and regulations of these countries and the manner in which they are applied – as contained in various sources provided by international organizations including UNHCR and the European Asylum Support Office… and other human rights organisations.”
Additional provisions regarding the application of the safe third country concept have been provided in Article 17 of the Asylum Act which refers to specific personal circumstances that must be taken into account in decision-making and relative to which individuals must be granted special procedural and reception guarantees. Specific circumstances are present if the applicant is a minor, unaccompanied minor, person with disabilities, elderly person, single parent with underage children, victim of human trafficking, severely ill person, a person with mental disorder and persons subjected to torture and other forms of abuse (“psychological, physical or sexual violence”). By analogy and following a logical interpretation of the above provision, it is evident that a person falling into one of the above categories must be ensured equal reception guarantees in the receiving country if subject to application of the safe third country concept. Moreover, the competent authorities must consider proprio motu the extent to which these special guarantees could be enjoyed in the receiving country.
In establishing conditions for application of the safe third country, each asylum application is assessed individually, examining whether the country fulfills the conditions set by Article 45(1), and whether there is a connection between that country and the applicant on the basis of which it could be reasonably expected that he or she could seek asylum in that country. The new approach of the Asylum Act is encouraging as it implies an individual consideration of each case and not the application of the Safe Countries Decision or any other regulation proclaiming a country “safe” without transparent criteria.
Article 45(3) states that the applicant will be informed in good time about the application of the safe third country concept so as to allow him or her the possibility to challenge it. It may be reasonable to assume that the information i.e., challenging of the safe third country concept would take place during the interview.
This assumption is founded in the provision of Article 37 setting out that an officer of the Asylum Office authorised for interviewing, shall establish facts related to the travel routes of the applicant after leaving his or her country of origin or habitual residence, and whether he/she had previously sought asylum in any other country. If this is not the case, the future application of this provision by the Asylum Office remains to be seen.
The issue that remains unclear in the provisions regarding the safe third country concept is the certificate that the Asylum Office issues to the applicant, having ruled on dismissing his or her application due to application of the concept. Namely, the new Asylum Act only states that the certificate shall include an information for the authorities of a third state that the Republic of Serbia has not examined the asylum application on the merits.
Consequently, it is not clear whether applicants will have to go to the border crossing points themselves and present the certificate on the “safe third country” to the authorities or if the authorities of the safe third country be officially informed that the application of a certain individual had been dismissed as it was concluded that it could and should have been examined on the merits in that country.
Practical ambiguities of this provision aside, the issue of major concern is the absence of clear and accurate provisions on individual guarantees, being the key issue relating to every forcible removal procedure. The issues that remain open after the beginning of implementation of the Asylum Act are the manner in which the said guarantees would be obtained from the states assessed to be safe, what exactly would these guarantees include, and to what extent would they be personalised to each individual. Based on the above, however, it follows that, before the final evaluation, it is necessary to wait for the first decisions of the Asylum Office that will apply the safe third country concept in line with the Asylum Act.
Finally, the Asylum Act provides that the Republic of Serbia would examine a foreigner’s application on the merits if a third country considered safe refuses to admit him or her.
In 2019, the Asylum Office applied the new Asylum Act only once. Since BCHR’s lawyers did not act as legal representatives in the said case and that the decision was probably challenged before the Asylum Commission, it remains to be seen how the country qualified as safe will admit the Cuban asylum applicant back to its territory and allow him to submit an asylum application.
 ECtHR, El-Masri v. ‘The Former Yugoslav Republic Of Macedonia’, Application No 39630/09 Judgment of 13 December 2012, para 165; M.S.S. v. Belgium and Greece, Application No 30696/09, Judgment of 21 January 2011, EDAL, available at: https://bit.ly/2ErG9VZ, para 296.
 Council of Europe Committee of Ministers, Recommendation on the Right of Rejected Asylum Seekers to an Effective Remedy Against Decisions on Expulsion in the Context of Article 3 of the European Convention on Human Rights, 18 September 1998, Rec(98)13, Rec. 1.
 ECtHR, A.K. v. Serbia, Application No 57188/16, Communicated on 19 November 2018; M.H. v. Serbia, Application No 62410/17, Communicated on 26 October 2018.
UNHCR, The Former Yugoslav Republic of Macedonia as a country of asylum: Observations on the situation of asylum-seekers and refugees in the Former Yugoslav Republic of Macedonia, August 2015, available at: https://bit.ly/2TgkdFx.
 AIDA, Country Report Serbia, 2018 Update, March 2019, p. 42-52.
 Ibid, paras 4 and 79-81.
Ibid, para 13.
CAT/C/SR.1322 and CAT/C/SR.1323, para 15.
ECtHR, Ilias and Ahmed v. Hungary, Application No 47287/15, Judgment of 21 November 2019 , EDAL, available at: https://bit.ly/2yoNSDD
 Ibid, para 125.
 CCPR/C/SRB/CO/3, paras 32 and 33.
 CERD, Concluding observations on the combined second to fifth periodic reports of Serbia, 3 January 2018, CERD/C/SRB/CO/2-5, paras 26-27.
 CAT, Ayaz v. Serbia, Communication No 857/2019, Decision of 2 August 2019, para. 9.8.
 Article 45(1) Asylum Act.
 Article 45(2) Asylum Act.