When opening Asylum Centres, the CRM must act in line with the principles of prohibition of artificial changing of the national composition of local demographics,[1] and equal and planned economic development by managing migration,[2] both foreseen by the Migration Management Act. This is also the case for providing accommodation for persons granted asylum in Serbia.
Article 49 of Asylum Act provides that asylum seeker has the right to reside in the Republic of Serbia, and during that time enjoys freedom of movement throughout the country, unless there exist special grounds for the restriction of movement (see Alternatives to Detention).
Asylum Centres are open and accommodated asylum seekers have the right to leave the centre, although the obligation remains to be present for the daily roll call every evening in order for the centre’s authorities to ascertain that the person in question is still present. If they fail to report, in practice they could be removed from the list and treated as irregular migrants in the future. As ID cards are issued solely to foreigners who have lodged their asylum application, the rest of the people who do not enjoy the status of an asylum seeker may have trouble with the authorities should they be found outside of the Asylum Centre without any documents.
COVID-19 restrictions
The COVID-19 pandemic has severely impacted the right to freedom of movement of refugees, asylum seekers and migrants who were prohibited from leaving asylum and reception centres from 10 March 2020 to 14 May 2020.[3] The military and the police was deployed to all reception facilities. The same measures impacted UASC accommodated in Social Care Institutions for children,[4] whose detention lasted until August 2020 and on the basis of a Ministry of Social Affairs Instruction which has never been published.[5] Moreover, after the state of emergency was lifted, and due to alleged ‘increase of petty crime’ in the Western part of Serbia where RCs Adaševci, Šid and Principovci are located, the President of Serbia has issued an order to military to secure these camps and a perimeter around them, extending their detention until September 2020.[6] President’s order has never been published.[7]
The prohibition on leaving asylum and reception centres was de facto introduced between 7 and 10 March 2020 when the police started to pick up refugees and migrants residing in informal settlements around Belgrade and border areas with Hungary, Croatia and Romania. All foreigners detained in the Detention Centre for Foreigners were also transferred to different reception centres. CSOs providing different services were also banned from visiting all accommodation facilities.[8]
In the period between 16 March and 14 May 2020, three different legal regimes were used as grounds for the above-described ban on leaving reception facilities. The first one was the Government’s Decision on Temporary Restriction of Movement of Asylum Seekers and Irregular Migrants Accommodated in Asylum Centres and Reception Centres in the Republic of Serbia.[9] This decision was rendered in line with Article 6, Paragraph 1 of the Law on the Protection of the Population from Infectious Diseases (LPPID).[10] Thus, this restriction was imposed through bylaw which consisted of only 2 Articles:
‘1. In order to protect against the spread of infectious diseases in the territory of the Republic of Serbia, to prevent the uncontrolled movement of persons who may be carriers of viruses and to arbitrarily leave asylum centres and reception centres, the movement of asylum seekers and irregular migrants accommodated in asylum centres and reception centres in the Republic of Serbia is temporarily restricted and enhanced supervision and security of these facilities is established.
2. Asylum seekers and irregular migrants, exceptionally and in duly justified cases (visiting a doctor or for other justified reasons), will be allowed to leave the facilities referred to in item 1 of this Decision, with the special permission of the Commissariat for Refugees and Migration of the Republic of Serbia, which will be limited for a time in line with the reason it is issued.’
The Decision on Temporary Restriction of Movement of 9 April 2019 was suspended and its provisions were transposed into a new 2020 Decree on Emergency Measures (Decree) in identical form.[11] The Decree was the main legal act in force during the state of emergency and it prescribed the derogation measures in general.[12] Thus, from the “regular legal regime”,[13] the ban on leaving asylum centres and reception centres was moved into an “emergency legal framework”, which made the above stated ban as a measure of derogation.
After the state of emergency was lifted on 7 May 2020, the ban on leaving reception facilities for foreigners was transposed into another bylaw introduced by the Minister of Health – Order on Restriction of Movement on Open Accesses and Facilities of Reception Centres for Migrants and Asylum Centres.[14]
The regime of life introduced through the above-enlisted legal framework, and to which refugees, asylum seekers and migrants were subject to implied the following:
- prohibition on leaving space within the facilities that make up asylum centres and reception centre whose area does not reach up to 0.1 km2;
- constant surveillance by CRM workers and armed Ministry of Defence soldiers and Ministry of Interior police officers which were authorized to use force;
- Inability to make direct social contact with the outside world, including legal representatives and psychologists, except by phone and social networks;
- the risk of criminal and misdemeanour liability in the event of leaving the centre, which could ultimately result in imprisonment of up to three years;
- the prohibition on leaving asylum and asylum centre was in force for more than 60 days;
- the prohibition on leaving RCs Sid, Principovci and Adaševci was extended to September 2020.
The above-mentioned regime was also recorded by NPM during its visit to RC Adaševci and RC Obrenovac,[15] but also in two Analysis published by A11 and IDEAS.[16] Thus, the type, duration, effects and manner of implementation of COVID-19 measures raised a question of whether this limitation affected foreigners’ freedom of movement or their right to liberty and security.[17] The terminology that was used in all of the laws was ‘limitation to freedom of movement’.
However, the above-described treatment undoubtedly amounted to deprivation of liberty, considering foreigners’ individual situation and choice; the legal regime applied to them and its purpose and duration, nature and extent of the COVID-19 restriction imposed and experienced by refugees, asylum seekers and migrants.[18] This is further supported by the existence of both subjective and objective criteria developed in ECtHR jurisprudence and which could be determined here in relation to foreigners’ confinement in restricted space of asylum and reception centres for a period of over 60 days, without possibility to leave centres. This proposition is further supported by the level of supervision by CRM, police and military, as well as the level of control of their movement within the centre, high extent of isolation from the outside world and the lack of possibility of social contacts.[19] The subjective criterion is determined on the basis of general frustration of refugees and asylum seekers and their unwillingness to remain in such regime and conditions.[20]
Cumulatively, these measures could not have been considered a “temporary restriction of movement” but a deprivation of liberty. So, refugees, asylum seekers and migrants who were prohibited from leaving asylum centres and reception centres were deprived of liberty. The basis on which foreigners were deprived of the liberty were Decision on Temporary Restriction of Movement, the Decree and MoH Order.
Ministry of Health (MoH) Order and Decision on Temporary Restriction of Movement
When it comes to MoH Order and Decision on Temporary Restriction of Movement, both of these acts were bylaws in their nature and were rendered on the basis of the LPPID which does not contain a single provision which would prescribe detention measures. Thus, it is clear that detention of foreigners was not carried out on the basis of the law and in line with substantive and procedural national rules.[21] The short content of both bylaws lacked all other elements arising from the Article 5 of the ECHR such as legal certainty, principle of proportionality and the principle of protection against arbitrariness.[22]
Moreover, refugees, asylum seekers and other categories of migrants were never issued with individual decision and were not informed on reasons for their detention, which represents one of the most basic safeguards against arbitrariness.[23] Thus, they were not able to find out why they were put in such a situation and what were the arguments that they could have challenged before a judicial body.[24] In essence, they were denied the possibility to effectively use the right to appeal to the judicial body[25] since they have never been served or informed of specific and individual reasons in a language that they would understand.
The Decision on Temporary Restriction of Movement and MoH Order did not provide for:
- procedure for deprivation of liberty
- the reasons and conditions for determining, extending and ending the detention
- the duration of detention
- making individual and reasoned decision on deprivation of liberty
- the obligation to communicate the reasons for deprivation of liberty in a language that the person concerned understands
- the possibility of appealing or filing any other legal remedy that could initiate the process of challenging the legality of deprivation of liberty
- the possibility of engaging a legal representative by a person deprived of liberty and potentially other rights such as the right to medical examination and the right to be informed by a third party of his/her own choice.[26]
And finally, refugees, migrants and asylum seekers who were prohibited from leaving asylum centres and reception centres were unlawfully and arbitrarily deprived of liberty on the basis of discriminatory criteria based on their legal status, origin and temporary residence.[27]
Decree on Emergency Measures
As already stated, on 9 April 2019, the Decision on Temporary Deprivation of Liberty was put out of power and its provisions were moved into the Decree, making it indisputable that the deprivation of liberty of refugees, asylum seekers and migrants has become a derogation measure. Several NGOs outlined that derogation of right to liberty and security of refugees, migrants and asylum seekers was not in line with the requirements set in the jurisprudence of ECtHR for the following reasons:
- There was no need for the introduction of the state of emergency since the COVID-19 outbreak could have been treated in line with LPPID and thus, the ‘life of the nation’ was not at stake,[28] especially taking in consideration that state of emergency was not in force when the number of infected persons was much higher in the period October-December 2020.[29]
- The criteria of necessity and proportionality was also lacking, especially in relation to certain guarantees arising from the ECtHR jurisprudence and which should imply that foreigners should have at least received an individual detention decision rendered in clearly defined procedure and by the authority entitled by law to make that decision which could have been challenge before the judicial body.[30]
- Just as MoH Order and Decision on Temporary Restriction of Movement were not in line with the principle of non-discrimination the Decree was not either, since it contains identical provisions.[31]
- On 7 April 2020, the Republic of Serbia officially informed the Secretary General of the Council of Europe that it had waived certain human rights guarantees of the European Convention on Human Rights. However, the letter of only two pages did not specify which human rights were specifically derogated from, nor the specific reasons for these respective derogations. Instead, the letter provided a link to the legal information system where changes to the Decree that is the subject of this Analysis are posted.[32] In addition, at the time of notification, the deprivation of liberty of refugees, migrants and asylum seekers was carried out solely on the basis of the Decision on Temporary Restriction of Movement and not on the basis of the Decree, since the provisions of the Decision were transposed into the Decree on 9 April 2020. Therefore, the Government of the Republic of Serbia has not fulfilled its obligation to inform the Council of Europe regarding the total derogation of the right to liberty and security of person of refugees, asylum seekers and migrants.[33]
A11 submitted to the Constitutional Court the initiative for the assessment of constitutionality and legality of MoH Order, Decision on Temporary Restriction of Movement and the Decree on Emergency Measures, stating that limitation measures imposed on foreigners should be considered as deprivation of liberty and that their detention was unlawful, arbitrary and was not in line with the principle of proportionality and necessity. BCHR also submitted the same request, but only in relation to MoH order stating that such order is not in line with the Constitution, but also with LPPID. The CC has dismissed all initiatives stating that limitations to which refugees, asylum seekers and migrants were subject to did not amount to deprivation of liberty.[34] Several applications were submitted to ECtHR (1 by BCHR and 2 by IDEAS) soon after.
[1] Article 4 Migration Management Act.
[2] Article 5 Migration Management Act.
[3] Hod po žici, Chapter IV.
[4] Ibid.
[5] Ibid.
[6] N1, Vučić naredio da vojska ide u Šid zbog migranata, 16 May 2020, available at: http://bit.ly/36taocS [accessed on 20 January 2020.
[7] Hod po žici, p. 64.
[8] Ibid.
[9] Official Gazette no. 32/2020, hereinafter: Decision of Temporary Restriction of Movement.
[10] Official Gazette no. 15/2016.
[11] Official Gazette, nos. 31/2020, 36/2020, 38/2020, 39/2020, 43/2020, 47/2020, 49/2020 and 53/2020
[12] A11, Analysis of Measures Derogating from Human and Minority Rights during the State of Emergency in the Republic of Serbia caused by the Epidemic of Infectious Disease COVID-19, March 2020, available at: https://bit.ly/329fgT7, p. 4-6.
[13] Meaning the legal regime, which is valid in regular circumstances, not during the state of emergency.
[14] Official Gazette No. 66/2020, hereinafter: MoH Order.
[15] NPM, Извештај о посетама прихватним центрима у Обреновцу и Адашевцима, 16 June 2020, available at: https://bit.ly/2NLywRc, p. 23.
[16] A11, Analysis of Measures Derogating from Human and Minority Rights during the State of Emergency in the Republic of Serbia caused by the Epidemic of Infectious Disease COVID-19, March 2020, available at: https://bit.ly/329fgT7, p. 40.
[17] ECtHR, Guzzardi v. Italy, App. No. 7367/76, Judgment of 6 November 1980, available at: http://bit.ly/2V0jJmt, para. 92.
[18] ECtHR, Ilias and Ahmed v. Hungary, Application No. 47287/15, Judgment of 21 November 2019 [GC], EDAL, available at: http://bit.ly/3pCI7I1, para. 217.
[19] ECtHR, Strock v. Germany, App. No. 61603/00, Judgment of 16 June 2005, available at: http://bit.ly/3esoyws, para. 73.
[20] ECtHR, Stanev v. Bulgaria, App. No. 36760/06, Judgment of 17 January 2012, available at: http://bit.ly/3fGxdvK, para. 117.
[21] ECtHR, Creangă v. Romania, Application No. 29226/03, available at: http://bit.ly/2NcU1XD, para. 101.
[22] ECtHR, Plesó v. Hungary, Application No. 41242/08, Judgment of 2 October 2012, available at: http://bit.ly/2N97nnX, para. 59, and Simons v. Belgium, Application No. 71407/10, Decision of 28 August 2012, available at: http://bit.ly/3fBTnPC, para. 32: see more in A11 Analysis on Detention of Foreigners during the State of Emergency, p.12-13
[23] ECtHR, Khlaifia and Others v. Italy, Application No. 16483/12, Judgment of 15 December 2016 [GC], EDAL, available at: http://bit.ly/2Bojevu, para. 71.
[24] ECtHR, Čonka v. Belgium, Application No. 51564/99, Judgment of 5 February 2002, EDAl, available at: http://bit.ly/2YLIUeh, para. 50.
[25] ECtHR, Shamayev and Others v. Georgia and Russia, App. No. 36378/02, Judgment of 12 April 2005, par. 413.
[26] A11 Analysis on Detention of Foreigners during the State of Emergency, p. 16.
[27] Ibid., p. 17 and 18.
[28] Hod po žici, p.77.
[29] Ibid.
[30] Baş v. Turkey, App. No. 66448/17, Judgment of 3 March 2020, available at: http://bit.ly/2CnULal, para. 230 and 231, and Kavala v. Turkey, App. No. 28749/18, Judgment of 10 December 2019, available at: http://bit.ly/3hIQkao, para. 194–196.
[31] A. and Other v. the United Kingdom, App. No. 3455/05, Judgment of 19 February 2009 [GC], available at: http://bit.ly/3hr8Tj0 para. 190.
[32] Available at: https://bit.ly/3beJju9 [visited on 18 April 2020].
[33] See more in A11 and IDEAs.
[34] CC, Decision no. Iyo – 45/2020, Decision of 15 October 2020, p. 31-32 and Iyo – 62/2020, 1 Feburay 2020.