The Asylum Act envisages that the Minister of Interior adopt a bylaw on the content and design of travel documents for persons granted refugee status within 60 days from the date of entry into force of the Act.[1] The bylaw was not passed by the time of writing of this report.
Due to this legal vacuum, refugees’ freedom of movement is limited even though it is guaranteed by the Serbian Constitution and the ECHR. This means that refugees can leave Serbia only illegally unless they possess a valid travel document issued by their country of origin. In light of this situation, in which one Syrian refugee who was granted asylum in Serbia found himself, the BCHR filed a constitutional appeal before the Constitutional Court in 2015. A constitutional appeal was filed in 2014 as well for the same reasons for other BCHR clients.
The Constitutional Court dismissed the constitutional appeal on 20 June 2016, stating that the subject of a constitutional appeal cannot be a failure to adopt a general legal act, but only the individual act as it is prescribed by Article 170 of the Constitution.[2] This reasoning remains unclear since the consequences embodied throughout illegal and unjustified limitation of freedom of movement were reflected upon individuals. The impossibility to receive a travel document for asylum beneficiaries still remains a problem at the time of writing.
BCHR has lodged an application to the ECtHR stating a violation of Article 2(2) Protocol 4 ECHR which provides that everyone shall be free to leave any country, and of Article 2(3) stating that no restrictions may be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of public order, etc. The communication phase before the ECtHR was concluded in 2021 and it remains to be seen whether the Court will find a violation of the freedom of movement under Article 2(3) Protocol 4 ECHR.[3]
The Asylum Act also envisages that, in exceptional cases of a humanitarian nature, a travel document may also be issued to persons who have been granted subsidiary protection and who do not possess a national travel document, with a validity of maximum one year.[4] This provision is yet to be applied.
In 2022, there were two public debates on the amendments to the Asylum Act which contain provisions on the refugee travel document which contain clarifications of the travel document provisions and which, if adopted, would not require the adoption of the bylaw but the Asylum Act itself would represent grounds for issuing of travel document.[5]
[1] Article 101 Asylum Act.
[2] Constitutional Court, Decision UŽ 4197/2015, 20 June 2016.
[3] ECtHR, Seraj Eddin v. Serbia, Application No 61365/16, Communicated to the Government on 23 February 2018.
[4] Article 91(3) Asylum Act.
[5] Available at: https://bit.ly/3yepU9U, Article 39.