A group of civil society organisations filed an initiative with the Serbian Constitutional Court to review the constitutionality and legality of the Order Restricting Movement on Roads Leading to Asylum and Reception Centre Facilities and Grounds adopted on 6 May 2020. We believe that the Order, which prohibits refugees, asylum seekers and irregular migrants from leaving Asylum and REception Centres in the Republic of Serbia, amounts to unawarranted and disproportionate restriction of their right to liberty and security of person and their deprivation of liberty.

The impugned Order was issued by the Health Minister to prevent the spread of COVID-19 in the territory of the Republic of Serbia, under Article 52 of the Act on the Protection of the Population from Communicable Diseases, which authorises him to impose measures restricting movement in specific areas in which an emergency situation has been declared. However, the government did not declare an emergency situation in any part of Serbia where Asylum and Reception Centres are located after it lifted the state of emergency, which lasted 53 days, from 15 March to 6 May 2020. 

This measure does not fulfil the proportionality requirements either. Furthermore, the prohibition to leave the Asylum and Reception Centres is not strictly limited in time given that it will remain valid until the risk of COVID-19 spreading in Serbia ceases to exist.

Refugees, asylum seekers and irregular migrants have for nearly two months been locked down in Asylum and Reception Centres, many of which are seriously overcrowded and some of which suffer from substandard hygiene. This Order continues preventing them from directly contacting people outside the Centres, including their legal representatives, psychologists, psychiatrists and other people extending them various forms of support. The impugned Order does not include even an explanation of why the purpose of the restriction could not have been achieved by milder measures. Nor does it explain which medical and other circumstances led the authorities to conclude that they
had to prohibit all refugees, asylum seekers and irregular migrants from leaving the Asylum and Reception Centres given that even the measures prohibiting the freedom of movement of the categories of the population considered the most susceptible to contracting severe forms of COVID-19 ceased to be effective when the state of emergency was lifted. All of this indicates that the impugned Order is incompatible with Article 21 of the Serbian Constitution, which prohibits discrimination on any grounds.

By signing and ratifying the international Convention Relating to the Status of Refugees, the Republic of Serbia undertook to accord to refugees lawfully in its territory the right to choose their place of residence and to move freely within its territory, subject to any regulations applicable to aliens generally in the same circumstances.

The submitters of the initiative call on the Serbian Constitutional Court to issue a ruling initiating the review of the constitutionality and legality of the Order. We are of the view that a joint action of solidarity is necessary to ensure that refugees, asylum seekers and irregular migrants are treated the same as all other categories of the population in the Republic of Serbia.

The initiative to the Constitutional Court was submitted jointly by:

Belgrade Centre for Human Rights

HCIT – Humanitarian Center for Integration and Tolerance 

Indigo – Group for Children&Youth

Praxis

BCHR’s analysis of the lockdown measures in European countries shows that the restrictions of the freedom of movement of Serbia’s citizens imposed by the Serbian authorities to prevent the spread of COVID-19 were amongst the most drastic in Europe. The state of emergency, imposed in Serbia on 15 March 2020, was abolished after 53 days by a parliamentary decision adopted on 6 May 2020. Many human rights of Serbia’s citizens enshrined in the Constitution and ratified international treaties were restricted during the state of emergency.

Freedom of movement was undoubtedly the right that was restricted the most in Serbia. The BCHR filed an initiative with the Constitutional Court to review the constitutionality of the Decree on the State of Emergency Measures and the Order Restricting and Prohibiting Movement of Individuals in the Territory of the Republic of Serbia. While we wait for the Constitutional Court’s reply to the question whether the Ministry’s Order constitutes valid legal grounds for derogations from constitutional rights, we would like to draw attention to another important issue – the scope of the restrictions of the freedom of movement.

Article 202(1) of the Serbian Constitution allows derogations from specific human rights during a state of emergency, but only to the extent deemed necessary. Similarly, Article 4 of the International Covenant on Civil and Political Rights (ICCPR) sets out that in time of public emergency, states may take measures derogating from their obligations under the ICCPR to the extent strictly required by the exigencies of the situation. The Human Rights Committee said in its General Comment 29 on Article 4 of the ICCPR that States parties considering invoking Article 4 should carefully consider the justification and why such a measure is necessary and legitimate in the circumstances.

The impugned Order introduced a curfew during the state of emergency. Serbia’s citizens were under lockdown from 5 pm (and on some days from 3 pm) to 5 am on workdays, and from 5 pm on Fridays to 5 am on Mondays on weekends. People over 65 were under full lockdown as many as 34 days and were allowed to go shopping for groceries on a designated day every week, from 4 am to 7 am.

The BCHR’s analysis of the restrictions of the freedom of movement other European countries introduced in response to the pandemic shows that Serbia’s measures restricting and prohibiting the freedom of movement of its citizens were definitely amongst the most drastic in Europe. Frequent changes in the scope and periods of the restrictions and the illogicality of the order in which the measures were introduced and lifted created confusion among the people, who often had problems conforming their conduct and actions to the valid measures, as numerous cases of citizens penalised for violating the lockdown testify. The question remains whether such strict measures restricting and prohibiting the freedom of movement were necessary to achieve the goal – halt the spread of COVID-19, i.e. whether the same result could have been achieved by measures interfering less in the citizens’ rights, as well as whether the state acted in violation of the Constitution and international law in this case.

More in the Infographic

Twelve civil society organisations (CSOs) filed an initiative with the Protector of Citizens to launch a review of the legality and regularity of the operations of the Ministry of Internal Affairs (MIA), specifically, with respect to police responses to reports of citizens rallying on top of residential buildings and firing torches and fireworks in the evenings and to granting of curfew passes.

Over the past few days, media and social networks have been publishing footage of groups of citizens lighting torches and powerful fireworks in Belgrade and other cities across Serbia in the evenings, amidst the curfew imposed under the Decree on State Emergency Measures. The fire department intervened in one such fire hazard case in Niš. There were also clashes between these people and the residents, without whose consent they climbed on the roofs of their buildings and lit torches and fireworks and activated drones.

The social media also published allegations by citizens who reported to the police violations of the curfew and the Public Law and Order Act (Article 17 prohibiting fireworks and firing weapons). They claim that the police told them that they were not competent for these misdemeanours and to report them to the local communal police instead. Others reported that the police came to the scene, but took no action after establishing that the citizens lighting torches and activating fireworks had the curfew passes issued by the MIA during the state of emergency. 

Relying on Article 32 of the Protector of Citizens Act, the CSOs call on the Protector of Citizens to initiate a review of the legality and regularity of the MIA’s operations without delay, in order to establish:

1. To whom the MIA’s has issued curfew passes and why,
2. Whether it is true and, if so, why the MIA refused to respond to reports by citizens of violations of the curfew imposed under the Decree on the State of Emergency Measures and Article 17 of the Public Law and Order Act given that the Police Act charges the police with maintaining public law and order, identifying and investigating misdemeanours, identifying and apprehending their perpetrators and bringing them before the competent authorities, as well as with immediately forwarding all reports containing elements of misdemeanours to the police unit responsible for misdemeanours.

The initiative was submitted by:

• Belgrade Centre for Human Rights
• Belgrade Centre for Security Policy
• A11 – Initiative for Economic and Social Rights
• Centre for Judicial Research – CEPRIS
• Civic Initiatives
• Lawyers’ Committee for Human Rights – YUCOM
• Helsinki Committee for Human Rights in Serbia
• Policy Centre
• Youth Initiative for Human Rights
• Committee for Human Rights Niš
• Committee for Human Rights Negotin
• Committee for Human Rights Valjevo