Grounds for detention

Detention of asylum seekers

An asylum seeker can be detained by a decision of the Asylum Office, when it is necessary to:[1]

• Establish their identity or nationality;
• Establish material facts and circumstances underlying their asylum application, which cannot be established without the restriction of movement, particularly if there is a risk of absconding;[2]
• Ensure their presence in the course of the asylum procedure, if there are reasonable grounds to believe that their asylum application was submitted with a view to avoiding deportation;
• Ensure the protection of security of the Republic of Serbia and public order in accordance with the law;
• Decide, in the course of the procedure, whether they have a right to enter the territory of the Republic of Serbia.

Asylum seekers can be also detained in case of non-compliance with the obligations envisaged in Article 58 of the Asylum Act which are related to the respect of the House Rules in Asylum and Reception Centres and inadequate cooperation with the Asylum Office during the asylum procedure.[3]

In practice, the Asylum Office rarely orders the detention of asylum seekers. Not a single detention order was issued in 2021 on those grounds, but there were four detention decisions in 2022d plus another one which was related to the subsequent asylum applicant from Türkiye who was detained as irregular migrant by the MoI and not Asylum Office. What binds these two cases is the fact that they were both subjected to the extradition to their countries of origin, that they applied for asylum but were represented by incompetent attorneys at law, that they were assessed as the national security threat by BIA and that their forcible removal cases are being examined by the CAT who issued interim measures.

Case of immigration detention of E.P.

The case of E.P., Turkish political dissident accused of terrorism in Türkiye, who has been facing extradition to his country of origin for almost two years, was detained in DC Padinska Skela for the maximum period of 6 months by the MoI.[4] What is interesting in this case is the fact that he was not detained by the Asylum Office, even though he has the status of an asylum seekers (he lodged subsequent application), but as irregular migrant who was served with the expulsion order in line with the Article 74 (2).[5]

The biggest problem in this particular case is the fact that Mr. E.P. is in extradition procedure, which is still ongoing, despite the fact that the CAT has issued an interim measure indicating to the Government of Serbia to refrain from sending Mr. E.P. back to Türkiye until the end of the procedure before the Committee.[6] He was deprived of his liberty in June 2021 and was ordered with the extradition detention which, according to the Law on Mutual Legal Assistance in Criminal Matters (LMLAC),[7] cannot last longer than 1 year. Since the maximum length of his detention expired in June 2022, he was supposed to be released and imposed with a measure alternative to extradition detention which is identical measure as the pre-trial detention. And he did when the Higher Court in Belgrade imposed the measure of prohibition a place of residence on the territory of Belgrade, which is the measure which limits the right to freedom of movement and does not imply deprivation of liberty. Still, he was placed in DC Padinska Skela, which, in line with the subjective and objective criteria of the Strasbourg Court is nothing but the measure of deprivation of liberty. Moreover, only the MoI – Department for Foreigners or Asylum Office – can detain foreign nationals in DC Padinska Skela and under the provisions of either Foreigner or Asylum Act. In other words, LMLAC, nor the Criminal Procedure Code[8] as lex generalis, are not providing for the possibility for a foreign national to be detained in immigration detention facilities. Accordingly, Mr. E.P. was detained arbitrarily, which was later on determined by the Appellate Court in Belgrade, which squashed the decision.[9]

Instead of releasing Mr. E.P., as a person whose legal status is being decided by the judicial extradition authorities, the Ministry of Interior, without conducting any kind of assessment of the risks of refoulement, issued an expulsion order in line with the Article of Foreigners Act, outlining that Mr. E.P. represents the threat to national security and that he should be removed instantly. This decision created the grounds for immigration detention in DC Padinska Skela, and on the same day, the decision on detention was delivered.

What was also worrying argumentation is the fact that decision on immigration detention was rendered on the basis of the negative security assessment of BIA. Thus, the MoI has just highlighted that Mr. E.P. represents the threat to national security. Immigration detention was challenged before the Administrative Court, but this body rejected the complaint also simply relying on the BIA security assessment.[10]

Case of immigration detention of A.S.

The case of Mr. A.S. is almost identical to the case of E.P. He has also been in the extradition procedure and his extradition detention expired, after which he was detained in DC Padinska Skela. As E.P., he also lodged subsequent asylum application, and his placement in DC Padinska Skela was also based on the security assessment of BIA. The only difference in this particular case is the fact that he was detained on the basis of the decision delivered by the Asylum Office[11] Without any reasoning, the Asylum Office simply invoked negative security assessment.

What is also different in then the case of Mr. E.P. is the authority which examines the legality of immigration detention – Higher Court in Belgrade. A.S.’s legal representatives lodged the appeal against decision on detention and extension of detention, invoking the jurisprudence of the ECtHR in the case of Muhammad and Muhammad v. Romania[12] where the Court outlined that hiding of all the relevant facts which are related to security assessment denies the applicant of the possibility to challenge the assessment.

Mr. A.M. was released after maximum of 6 months of immigration detention and was moved to the AC Obrenovac, while the Higher Court in Belgrade has never decided on the appeals.

What is common for both cases is that they represent the most flagrant form of arbitrary administrative detention which is unlawfully used for the purpose of extradition procedure and where the applicants.

Also, the practice of arbitrary detention at the airport has already been described in Access to the Territory, as well as detention in Asylum and Reception Centres during the COVID-19 lockdown. However, the Asylum Act introduced a Border Procedure. Thus, the applicant could be detained under these circumstances if adequate accommodation and subsistence can be provided.[13] However, since there are no adequate facilities located in border areas or in the transit zone, the border procedure has not yet been applied.

Other grounds for the detention of foreign nationals who may be in need of protection

In spite of the fact that the Asylum Office rarely enacts decisions putting asylum seekers in detention, persons in need of international protection may nevertheless be liable to detention in a number of situations.

Under the Foreigners Act, foreigners who are likely in need of international protection may be detained in the Detention Centre for Foreigners in Padinska Skela when they cannot be immediately forcibly expelled, for the purpose of their identification, when they do not possess valid travel documents, or ‘in other cases prescribed by the law’.[14] However, this concerns persons who do not express the intention to seek asylum in Serbia, as persons who have done so come under the regime foreseen by the Asylum Act explained above.

Article 87 of the Foreigners Act provides that a foreigner who is in a return procedure can be detained for the purpose of preparing the return or executing forced removal, based on the decision of the competent authority or border police. The detention is ordered where there is a risk that the foreigner will not be available to the competent authority for the execution of forcible removal or will attempt to avoid or interfere with the preparations for return or removal.[15] The valid reasons for this form of detention exist if a foreigner:

• Does not have documents to establish their identity;
• Does not cooperate in the return procedure and is interfering with their return;
• Has not departed from the Republic of Serbia voluntarily;
• Has not cooperated in the procedure of establishing identity or citizenship, or has given false or contradictory information;
• Is using or has used false or forged documents;
• Has attempted to enter or has already entered into the Republic of Serbia illegally;
• Has not fulfilled his obligations derived from the order on mandatory stay in a particular place;
• Does not have any relatives or social ties in the Republic of Serbia;
• Does not have any means to provide accommodation or subsistence.

The fact that a person is in need of international protection must not be neglected during the course of a forcible removal procedure. Thus, the individual should have access to procedural safeguards in the context of expulsion,[16] which is not the case at the moment. The current practice implies stereotypical issuance of a decision on cancellation of residency,[17] or an expulsion decision in case a foreigner does not have any legal grounds to reside in Serbia.[18] In these two procedures, foreigners do not enjoy legal assistance or services of interpretation, neither are they allowed to submit arguments against their expulsion or to effectively enjoy the right to a remedy which has a suspensive effect. Moreover, an appeal against the decision on cancellation of residency,[19] or the expulsion decision,[20] does not have a suspensive effect. The appeal against the expulsion decision could have a suspensive effect if there is a risk of refoulement.[21] However, since the guarantees regarding the expulsion are not in place in practice, it remains unclear how will the competent border police authority assess the risk of refoulement. The current practice is simply based on the automatic issuance of the expulsion decision in a template where only personal data and circumstances of irregular entry are stated, while the reasoning does not contain any assessment on the risk of refoulement.

Total number of detainees in DC Padinska Skela in the period 1 January 2022 – 31 December 2022

In 2022, a total of 272 foreign nationals were detained for the purpose of forcible removal in DC Padinska Skelal. Out of that number, 90 of them were from Afghanistan, 40 from Syria but also several foreigners originating from Türkiye, Iraq, Somalia and other countries in which detainees could face refoulement, especially if there is a possibility of the direct return to such countries (Türkiye for instance). Out of the above number of detained foreign nationals, 111 of them was removed via plane, 61 of them was readmitted to Bulgaria, while 16 of them was introduced in the assisted voluntary return (AVR) program conducted in the cooperation with the IOM. As for the rest, it is reasonable to assume that some of them were still detained at the moment this Report was concluded, but also that some of them were released due to the lack of possibility of return, such as one citizen of Türkiye[22] and one Kyrgyzstan[23] national who were protected by interim measures indicated by the CAT.

Total number of detainees in DC Dimitrovgrad in the period 1 January 2022 – 31 December 2022

Out of the above number of detained foreigners, 15 of them were forcibly removed via plane, while 114 of them were readmitted to Bulgaria, predominately citizens of Afghanistan. A total of 13 Indian citizens was returned though the AVR. As already outlined, it is not possible to determine if these people had the possibility to outline risks of refoulement in Bulgaria, not the risks of chain-refoulement, if they were allowed to access asylum procedure, legal aid, or if they had the possibility to challenge their forcible removal with the remedy that has automatic suspensive effect. What is known for certain is that no one was registered as an asylum seeker.

Total number of detainees in DC Plandište in the period 1 January 2022 – 31 December 2022

Out of the above-enlisted number of detained foreigners in the DC Plandište, a total of 14 of them were forcibly removed to Romania. Identical questions with regards to effective access to remedies against forcible removal and expulsion can be outlined here.

Additionally, another problematic practice is the widespread practice of convicting persons coming from refugee-producing countries for irregular entry or stay; the greater part of this practice is likely not in line with the principle of non-penalisation for illegal entry or stay foreseen by Article 31 of the 1951 Refugee Convention. However, although the majority of misdemeanour proceedings end with the person in casu paying a fine before being issued an order to leave Serbia within a certain time limit, it is not uncommon for potential refugees to be sentenced to a short term in prison as a result of their irregular entry or stay. Bearing in mind that access to an interpreter for languages most refugees speak is extremely limited, it is doubtful to which extent these persons are made aware of their rights and understand the proceedings, including the right to seek asylum in Serbia.[24]

In general, it can be safely assumed that relevant state authorities of Serbia rarely resort to measures of deprivation of liberty of persons that are in need of international protection who enjoy the status of asylum seekers, while on the other hand, persons who are likely in need of international protection who do not wish to apply for asylum could be subjected to immigration detention.

[1] Article 77(1) Asylum Act.

[2] Article 77(3) prescribes that the risk of absconding shall be assessed on the basis of all the facts, evidence, and circumstances in a specific case, particularly taking into account all the applicant’s previous arbitrary attempts of leaving the Republic of Serbia, his or her failures to consent to identity checks or identity establishment procedures, or concealing information or providing false information about his or her identity and/or nationality.

[3] Article 58(1)(3) and (7) Asylum Act.

[4] MoI, Decision on immigration detention no. 26-13/22, 14 July 2022, extended on 14 October 2022.

[5] MoI, Expulsion Decision no. 26-1712/22, 14 July 2022.

[6] CAT, Piroglu v. Serbia, Communication No. 1130/2022, 2 June 2022.

[7] Official Gazette, no. 20/2009, available in Serbian at: https://bit.ly/325Z8kN, Article 22.

[8] Official Gazette, no. 72/2011, 101/2011, 121/2012, 32/2013, 45/2013, 55/2014, 35/2019, 27/2021 – decision of the CC and 62/2021 – decision of the CC.

[9] Appellate Court in Belgrade, Decision No. Kre. 8/22, 5 October 2022.

[10] Administrative Court, Judgment no. U 44363/22, 2 December 2022.

[11] Asylum Office, Decision No. 26-2052/21, 16 September 2022, extended on 15 December 2022.

[12] Application No.  80982/12, Judgment of 15 October 2020, EDAL, available at: https://bit.ly/3MNcTN5.

[13] Article 44(1)(1) Asylum Act.

[14] Articles 87 and 88 Foreigners Act.

[15] Article 87(4) Foreigners Act envisages that a foreigner is avoiding or interfering with the preparations for return and forced removal if his identity cannot be established, or if the foreigner does not have a travel document.

[16] Article 1 Protocol 7 ECHR.

[17] Article 39 Foreigners Act.

[18] Article 74 Foreigners Act.

[19] Article 39(7) Foreigners Act.

[20] Article 80(3) Foreigners Act.

[21] Articles 80(3) and 83 Foreigners Act.

[22] CAT, Piroglu v. Serbia, Communication No. 1130/2022, 2 June 2022, see more at Balkan Insight, Serbia Ignores Calls to Free Kurdish Politician on Hunger Strike, 29 July 2022, available at: https://bit.ly/3PtXgaP.

[23] CAT, Sulaimanov v. Serbia, 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.

[24] See more in AIDA, Country Report: Serbia, 2021 Update, p. 149.