Author
Applicants can challenge their detention before the competent Higher Court within 8 days from the delivery of the detention decision.[1] The appeal against the Asylum Office’s detention decision does not have suspensive effect.[2]
Since the decision is drafted in Serbian, and foreigners often do not have legal counsel, there is no real possibility to challenge detention decisions.
In 2022, one applicant from Kyrgyzstan tried to challenge his detention on security grounds before the Higher Court of Belgrade, but the court never decided upon the appeal It is unclear why the lawmaker has made Higher Courts competent to examine the lawfulness of administrative detention decisions, instead of the Administrative Court.
As for the appeals against immigration detention imposed by the MoI and in relation to foreign nationals detained under the Foreigners Act, the competent body is the Administrative Court. Article 90 provides that a complaint against a decision on immigration detention or extension of immigration detention can be lodged within 8 days of the day of delivery of the decision, but the complaint will not have a suspensive effect. The Administrative Court shall decide on the complaint within 15 days which is not respected in practice, as outlined in the Table below.
| The practice of the Administrative Court with regards to the complaints lodged against decisions on immigration detention in the period 1 January 2023 – 31 December 2023 | ||||||
| No. | No. of Judgment | Date of complaint | Date of Judgment | Outcome | Nationality | No. of persons |
| 1. | U 1674/23 | 2 March 2023 | 27 Mach 2023 | Upheld | Türkiye | 1 |
| 2. | U 1676/23 | 2 March 2023 | 19 March 2023 | Upheld | N/A | 1 |
| 3. | U 3633/23 | 26 April 2023 | 22 May 2023 | Rejected | N/A | 1 |
| 4. | U 4216/23 | 4 May 2023 | 29 May 2023 | Upheld | N/A | 1 |
| 5. | U 13151/22 | 24 March 2022 | 14 June 2023 | Upheld | N/A | 1 |
| 6. | U 4939/23 | 22 May 2023 | 19 June 2023 | Upheld | N/A | 1 |
| 7. | U 5429/23 | 30 May 2023 | 4 July 2023 | Upheld | N/A | 1 |
| 8. | U 5979/23 | 14 June 2023 | 7 July 2023 | Upheld | N/A | 1 |
| 9. | U 6925/23 | 7 July 2023 | 25 July 2023 | Rejected | N/A | 1 |
| 10. | U 7337/23 | 18 July 2023 | 7 August 2023 | Rejected | N/A | 1 |
| 11. | U 6926/23 | 7 July 2023 | 11 August 2923 | Rejected | N/A | 1 |
| 12. | U 6794/23 | 5 July 2023 | 29 August 2023 | Upheld | N/A | 1 |
In 2023, a total of 12 complaints were lodged against decisions on immigration detention or decision on extension of immigration detention. The majority of complains were upheld, but what is important to outline is that despite the Administrative Courts having upheld the complaints, it referred the case back to the MoI unit which rendered the decision on detention, which in turn did not release the detainees involved, but referred the case back to the MoI unit which rendered the decision on detention. This essentially means that even if the complaint is upheld, detainees remain in detention.
What can also be seen from the above listed practice is that less only 12 foreign nationals[3] detained under the provisions of the Foreigners Act challenged their detention. This basically means that less than 2% of immigration detainees challenged their detention in 2023.
Since the refugees detained in the transit zone of Nikola Tesla Airport are not considered persons deprived of liberty by the border police officials, they do not have the possibility to challenge their situation before the relevant authority. In other words, the placement of foreigners in the transit zone is not accompanied by a lawful decision depriving them of their liberty, specifying the duration of such deprivation of liberty and their rights, such as the right to have access to a lawyer, the right to notify a third person of one’s deprivation of liberty and the right to be examined by a doctor (see refusals of entry).
Foreigners who are sentenced for the misdemeanour of irregular border crossing or stay in Serbia may lodge an appeal against the first-instance decision. However, since the majority of cases are processed in an accelerated manner, where foreigners are deprived of the possibility of challenging the charges against them in a language they understand and with the help of an attorney, appeals in these procedures are quite rare.[4]
[1] Article 78(5) Asylum Act.
[2] Article 78(6) Asylum Act.
[3] In three instances foreign nationals complained twice – once against the decision on detention and the other time against the decision on extension of detention.
[4] CAT, Concluding observations on the second periodic report of Serbia**, 3 June 2015, CAT/C/SRB/CO/2*, available at: https://bit.ly/3uj15La, para 14.