In late December 2020, the Serbian Constitutional Court upheld the constitutional appeal filed on behalf of 17 Afghani nationals, including four children under five and three children under seven years of age, who had expressed the intention to seek asylum in the Republic of Serbia. The BCHR filed the constitutional appeal claiming violations of their rights in March 2017, a month after they were pushed back from Serbia to Bulgaria in the midst of winter.  

The Constitutional Court found violations their rights enshrined in the Serbian Constitution, specifically: the right to liberty and security (Art. 27(3)) in conjunction with their rights in case of deprivation of liberty not ordered by the court (Art. 29(1)), and their freedom of movement (Art. 39(3)) in conjunction with the right to inviolability of their physical and mental integrity (Art. 25). The Constitutional Court also found that they had not been extended adequate legal aid.

In cooperation with the Gendarmerie and Army of Serbia, the Gradina Border Police patrol on 3 February 2017 deprived the 17 migrants of liberty on the road to Dimitrovgrad. They were brought before a misdemeanour judge in Pirot, who discontinued the misdemeanour proceedings against them after they expressed the intention to seek asylum. The Serbian police were ordered to issue all of them certificates of intention to seek asylum so that they could be referred to an asylum centre. However, that night, the police subjected them to inhuman and degrading treatment as they took them to the border zone and pushed them back to Bulgaria. The Afghani migrants were forced to walk through the woods at below freezing temperatures, without any documents, all of which, including those issued in Serbia, the police had seized.

The Constitutional Court concluded that the police officers’ treatment of the 17 Afghani migrants had been inhuman, noting that the Pirot Misdemeanour Court concluded that they were refugees who fled their war-torn country of origin area, had expressed the intention to seek asylum and were thus eligible for protection under Serbian law. The Constitutional Court’s decision, the first on a constitutional appeal for illegal expulsion of persons who expressed their intention to seek asylum in Serbia, will be published in the Official Gazette in public interest.

To recall, the Serbian Government in July 2016 adopted a Decision on the Establishment of Joint Police-Army Forces to combat illegal migration and human trafficking along the border with Macedonia and Bulgaria. This facilitated pushbacks of aliens, who were denied the opportunity to access the asylum procedure in Serbia.

In its Concluding observations of April 2017, the UN Human Rights Committee expressed concern about reported cases of efforts to deny access to Serbian territory and asylum procedures, of collective and violent expulsions and of the misapplication of the “safe third country” principle, despite concerns regarding conditions in some of those countries. It recommended that Serbia refrain from collective expulsion of aliens and ensure an objective assessment of the level of protection when expelling aliens to “safe third countries”.

A detailed analysis of the Constitutional Court decision will be published in BCHR’s upcoming Right to Asylum in the Republic of Serbia, Periodic Report for January-March 2021.

More about the case is available in BCHR’s Right to Asylum in the Republic of Serbia, Periodic Report for January-March 2017, pp. 22-27.

The Protector of Citizens dismissed BCHR’s initiative to perform an ex officio review and establish any errors or omissions on the part of the relevant medical institutions that may have led to a higher number of COVID-19 deaths and infections amongst health professionals in Serbia.

In his letter to BCHR of 20 January 2021, the Protector of Citizens said that the requirements for initiating a review of the operations of administrative authorities had not been fulfilled because the BCHR should have first sent requests for free access to information of public importance to the Ministry of Health and the Public Health Institute Dr Milan Jovanović Batut, asking them about the higher number of COVID-19 deaths and infections among health professionals.

The media have over the past few weeks been publishing alarming information and statements by doctors, representatives of the Serbian Trade Union of Doctors and Pharmacists and other medical workers, who said that around 70 doctors succumbed to COVID-19 in 2020. They drew attention to the major discrepancies between the mortality rates among health professionals, especially doctors, in Serbia and the other countries in the region (e.g. Croatia and Slovenia). In their opinion, the main reasons for the higher rates in Serbia included, among others, staff shortages, lack of quality protection equipment, inadequate testing protocols in COVID-19 zones, et al. 

Neither the Ministry of Health nor the Batut Institute have reacted to such information to date or to public appeals and requests by health professionals to release the official data on the number of medical workers who succumbed to COVID-19.

To recall, under Articles 24 and 32 of the Protector of Citizens Act, the Protector of Citizens is entitled to himself initiate a review of the operations of administrative authorities based on information he learns in any manner, in order to ascertain whether any systemic shortcomings resulted in violations of human rights, in this case of health professionals during the COVID-19 epidemic. BCHR notes with regret that the Protector of Citizens – who referred to the wrong provisions of the Protector of Citizens Act, specifically the ones governing the review of complaints filed by individuals who believe their human rights have been violated – let the BCHR and the public know that he has no intention of addressing this concerning issue.

This was the second time BCHR asked the Protector of Citizens to review the efficiency of the Health Ministry’s management of the COVID-19 epidemic. In June 2020, it requested of the Ombudsman to review the work of the Health Ministry after BIRN said that Serbia underreported the number of COVID-19 deaths and infections in the March-May 2020 period. Several months later, the Protector of Citizens notified the BCHR that he would not initiate such a review “in view of the fact that the Ministry of Health said it would re-examine the entire procedure of entering and processing data in the COVID-19 Information System”. After pressures from reporters to address the issue, the Ombudsman in mid-October 2020 “asked” the Health Minister to notify him of the Ministry’s findings of the re-examination at an unspecified time in the future. To recall, the Health Minister said that the re-examination of the number of COVID-19 deaths and infections would be undertaken once the pandemic was over.

On the eve of International Human Rights Day on 10 December 2020, the BCHR presented the main findings of its public opinion survey “Human Rights in the Eyes of Serbia’s Citizens” conducted in November.

The year behind us was marked by numerous restrictions and derogations of human rights enshrined in the Constitution and international documents in Serbia, which culminated during the state of emergency that was in force from 15 March to 6 May 2020. In the view of Serbia’s citizens, 2020 brought new challenges in the realisation of human rights compared to 2019, which came as no surprise in the context of the COVID-19 pandemic. 

The survey respondents said that the most jeopardised rights were the right to health (18%), freedom of movement (18%) and media freedoms (16%), as opposed to 2019, when they singled out the right to work, the freedom of speech/media freedoms and the right to live in dignity. Whereas public perceptions that the right to health was at greatest risk in 2020 was expected amidst the global fight against the pandemic, the respondents’ ranking of other rights among the most jeopardised ones varied depending on their age and education level: respondents in the 18-29 and 30-44 age categories singled out freedom of movement, college graduates aged 30-44 highlighted media freedoms, respondents in the 18-29 age category thought the freedom of assembly was at risk, while respondents with lower education levels and respondents between 45 and 49 years of age were the most concerned by violations of the right to work.

The survey also showed an increase over 2019 in the number of citizens who complained about human rights violations to the Protector of Citizens, non-government organisations and the Serbian President and a decrease in the number of citizens who turned to the police and courts.

Public mistrust of the judiciary was evident in 2020 as well. As many as 64% of the respondents opined that the judges were not independent. Given that courts are the most important for the protection of human rights at the national level, such deep public mistrust in their work illustrates the hopelessness of the situation of people who believe their rights are at risk or have been breached. Around 45% of the respondents positively rated the work of the police; police activites met with the dissatisfaction of around 29% respondents, mostly younger ones. This indicates that the incidents during the state of emergency and the July protests, characterised by police brutality and excessive use of force, did not reflect negatively on public assessments of their activities.

The survey results also testify to the deep polarisation of Serbia’s society on media freedoms and the right to information: 49% of the respondents, most of them over 60 and with lesser education, believed that media with nationwide coverage informed the public of issues of public interest accurately, fully and promptly. Just as many respondents, mostly 18-44 years of age and respondents with university education, held the opposite view. Most respondents got their news from the public service broadcaster Radio Television of Serbia (RTS),  then Pink and Prva TV, stations with nationwide coverage, and cable TV station N1.

Public views on the role of human rights CSOs are still divided: 26% of the respondents had positive opinions of their work and an identical share disagreed. The divide does not come as a surprise given the executive’s many activities aimed at sidelining these NGOs and labelling them as “foreign mercenaries and groups working on destabilising the state”. Although abuse of anti-laundering and terrorist financing mechanisms by the Ministry of Finance Anti-Laundering Directorate caused the most stir in 2020, 37% of the respondents had neutral views on the roles and activities of NGOs.

Serbia’s citizens believe that discrimination is widespread. As many as a quarter of the respondents said they had suffered discrimination in 2020, while nearly a half of them (around 46%) said that women were treated worse than men.  Discrimination against women is quite extensive; so are discriminatory gender stereotypes in public discourse. The survey results show that the public is aware of numerous problems in this field, especially of gender inequalities in the labour market.

“Human Rights in the Eyes of Serbia’s Citizens” is the second annual survey BCHR conducted in cooperation with the UN Human Rights Team in Serbia and Ipsos Strategic Marketing. The survey aimed to gauge public perceptions of human rights in Serbia on the eve of International Human Rights Day. 

International Human Rights Day is marked on 10 December, the day the Universal Declaration of Human Rights was adopted in 1948. This year, it is marked in the shadow of the COVID-19 pandemic and the states’ efforts to fight its transmission and consequences, which have all directly reflected on the realisation and enjoyment of numerous human rights and freedoms.

The BCHR is preparing its 2020 Annual Human Rights  Report, which will provide a comprehensive overview of the state of human rights in Serbia and the challenges the COVID-19 pandemic brought to their realisation.

The results of the survey “Human Rights in the Eyes of Serbia’s Citizens” you can find here in Serbian.

The Belgrade Centre for Human Rights (BCHR) hereby alerts to the Serbian Constitutional Court’s disputable Decision (No. IUo-45/2020) discontinuing the review of the constitutionality of the Order Restricting and Prohibiting Movement of Individuals in the Republic of Serbia during the state of emergency and several provisions of the Decree on State of Emergency Measures. In BCHR’s view, the Constitutional Court put forward unconvincing arguments to corroborate its finding that the Order and several provisions of the Decree were not in contravention of the Constitution.   

In its review of the constitutionality of Articles 2 and 3 of the impugned Decree (co-signed by the President) by which the Government authorised the Ministry of Internal Affairs to lay down measures derogating from constitutionally guaranteed human rights and freedoms (right to liberty and security and freedom of movement) either independently (Article 3) or with the consent of the Health Ministry (Article 2), the Constitutional Court upheld the following arguments put forward by the Government: that “all measures adopted by the Minister of Internal Affairs had de facto been adopted with the prior consent of the Government, because all the proposed […] measures had been discussed at Government sessions and adopted only after it had consented to them”; that the Order “was essentially an appropriate implementation act which in and of itself is not an aspect of autonomous and autochthonous decision-making” i.e. that it “does not amount to a decision in substantive terms”; and, that the Government was entitled to “task the relevant Minister with concretising specific decisions it had essentially adopted”. In other words, the Constitutional Court held that, in its Order (co-signed by the President), the Government had laid down measures derogating from human rights by the very fact that it authorised the MIA to adopt general acts restricting and prohibiting movement in public areas and that the MIA’s decisions on the duration of the prohibition of movement, all the areas and people it applied to, exceptions from the prohibition, etc. were merely an act by which it “concretised”, “activated” and “operationally implemented” measures derogating from human rights that had been laid down earlier.

The Constitutional Court also held that the measures drastically restricting the movement of people over 65 (and 70 in smaller communities) and refugees and migrants in asylum and reception centres during the state of emergency did not amount to deprivation of liberty because the purpose of the measures (protection from an infectious disease) and their substance (equated with the purpose) did not indicate as much. The Constitutional Court failed to even make mention of the total lockdown of people over 65 (and 70) from 18 to 22 March; that they were allowed to leave their homes only in the early morning hours (first from 3 am to 8 am and then from 4 am to 7 am) – the times they spent mostly buying their groceries, the following 30 days; that they were allowed half-hour walks within a 600 m diameter from their homes three times a week as of 21 April; and, that they were allowed to leave their homes one hour a day as of 25 April.

The duration of the measures, the extent of the restrictions of movement and social contacts imposed on the elderly during the state of emergency are comparable with the degree of restrictions of liberty during house arrest or home imprisonment, which are considered deprivation of liberty measures. The conclusion that the elderly were subjected to a collective measure of deprivation of liberty is also corroborated by the fact that the MIA continuously supervised compliance with the measure and that non-compliance elicited criminal and misdemeanour sanctions (maximum three years’ imprisonment and maximum 150,000 RSD fines respectively). The grounds on which the MIA issued curfew passes were not prescribed, and were thus unforeseeable; the topmost officials publicly said that they would be issued only in exceptional (especially justified) situations.

A similar regime applied to refugees and migrants, who were confined in the asylum and reception centres from 16 March to 14 May 2020. They were allowed to leave them only in circumstances in which individuals under house arrest or home imprisonment are allowed to leave their abodes.

The Constitutional Court’s above reasoning led to its failure to even discuss the proportionality of the measures restricting freedom of movement. In response to the claims by the initiators of the constitutionality review – that the above measures had discriminated against people over 65 (70) – the Constitutional Court said that “the anti-discrimination regime that applied to derogation measures was the one laid down in Article 202(2) not in Article 21 of the Constitution” – age is listed as grounds on which discrimination is prohibited in Article 21 but not in Article 202 of the Constitution. 

To recall, under well-established case-law of the European Court of Human Rights, the classification of confinement as deprivation of liberty or restriction of the freedom of movement in domestic law cannot alter the nature of the constraining measures and deprivation of liberty will have been at issue even if the authorities’ aim had been to assist the applicants and ensure their safety (Khlaifia and Others v. Italy, App. No. 16483/12, § 71). The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity (duration of the restriction, its social effects, degree of supervision, consequences of non-compliance, et al) and not one of nature or substance, reasons for the restriction or its classification in the national order (Guzzardi v. Italy, App. no. 7367/76, § 93). 

The Serbian Constitutional Court decision is available in Serbian here.

In its latest Serbia Progress Report, the European Commission said that Serbia had “some level of preparation” to implement the EU acquis on justice, freedom and security (Chapter 24, which includes asylum and migration issues) and that it continued to significantly contribute, as a transit country, to the management of the mixed migration flows towards the EU by playing an active and constructive role. The EC confirmed that migrant smuggling networks remain very active along the Western Balkan route and stated that the fight against this type of crime needed to be strengthened.

The EC Report states that most migrants in Serbia are placed in temporary accommodation facilities and do not have any legal status, but adds that Serbia continued to make substantial efforts to meet the essential needs of migrants passing through or remaining on its territory while facing increased mixed migratory movements and a large number of arrivals. The EC said that the national legal framework was largely aligned with the EU acquis but that Serbia needed to further adapt its legislation notably as regards effective access to the asylum procedure, appeal bodies, legal aid and the safe third country procedure. It also noted that access to and provision of information regarding the asylum procedure needed to be improved at all stages, especially at Belgrade international airport Nikola Tesla, where transit procedures, as envisaged by the law on asylum, were not yet being implemented and adequate premises for accommodation at the airport were lacking – issues the Belgrade Centre for Human Rights has been alerting to for years.

The European Commission made no mention in its report of the wire fence Serbia erected along its border with North Macedonia or of the “technical agreement” it signed with Austria on the implementation of the Readmission Agreement. Nor did it go into the problems in the enforcement of the bilateral readmission agreements, which are minimally implemented, if at all. It did note that lack of enforceable bilateral readmission agreements with third countries was a serious obstacle for Serbia to manage returns effectively, notably with the main countries of origin including Afghanistan, Pakistan and Iran.

As per integration, the European Commission said that integration-related by-laws had been adopted and that the basic legal framework for integration existed but that major obstacles to integration remained. It noted that implementing legislation in different sectors needed to be harmonised with the Asylum and Temporary Protection Act to provide those granted international protection with effective access to socio-economic rights. The European Commission also noted the years-long failure of the Serbian authorities to issue travel documents to successful asylum seekers.