Grounds for detention

Serbia

Country Report: Grounds for detention Last updated: 23/03/21

Author

Nikola Kovačević

Detention of asylum seekers

 

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

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

Asylum seekers can be also detained in the 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 detention of asylum seekers. Only 3 detention orders were issued in 2020 on those grounds, including the Cameroon citizen who was introduced in an accelerated asylum procedure.

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 new Asylum Act has introduced a Border Procedure. Thus, the applicant could be detained under these circumstances if adequate accommodation and subsistence can be provided.[4] However, since there are no adequate facilities located in border areas or in the transit zone, the border procedure has not yet been applied. However, MoI plans to open a Detention Centre for Foreigners in Dimitrovgrad, a city located at the green border with Bulgaria.

 

 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 under 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”.[5] 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 in the case of the 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.[6] The valid reasons for this form of detention exist if a foreigner:

  1. Does not have documents to establish his or her identity;
  2. Does not cooperate in the return procedure and is interfering with his or her return;
  3. Has not departed from the Republic of Serbia voluntarily;
  4. Has not cooperated in the procedure of establishing identity or citizenship, or has given false or contradictory information;
  5. Is using or has used false or forged documents;
  6. Has attempted to enter or has already entered into the Republic of Serbia illegally;
  7. Has not fulfilled his obligations derived from the order on mandatory stay in a particular place;
  8. Does not have any relatives or social ties in the Republic of Serbia;
  9. 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 forcible removal procedure. Thus, the individual should have access to procedural safeguards in the context of expulsion,[7] which is not the case at the moment. The current practice implies stereotypical issuance of the decision on cancellation of residency,[8] or an expulsion decision in case a foreigner does not have any legal grounds to reside in Serbia.[9] 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,[10] or the expulsion decision,[11] does not have a suspensive effect. The appeal against the expulsion decision could have a suspensive effect if there is a risk of refoulement.[12] 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.

Additionally, another problematic 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.[13]

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

[5]           Articles 87 and 88 Foreigners Act.

[6]           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.

[7]           Article 1 Protocol 7 ECHR.

[8]           Article 39 Foreigners Act.

[9]           Article 74 Foreigners Act.

[10]          Article 39(7) Foreigners Act.

[11]          Article 80(3) Foreigners Act.

[12]          Articles 80(3) and 83 Foreingers Act.

[13]          BCHR, Right to Asylum in Serbia 2020, p. 44.

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection