The Belgrade Centre for Human Rights (BCHR) calls on the Serbian Government to publish accurate information in response to claims about the existence of an inter-state agreement between Serbia and Austria on Serbia’s admission of irregular migrants and unsuccessful asylum seekers at Austria’s request.

Following a number of media speculations, the Deutsche Welle Serbian language programme published a report on 15 April 2020 stating that the Austrian Ministry of Internal Affairs (MIA) had confirmed the existence of a “working agreement” between Austria and Serbia on Austria’s return of unsuccessful asylum seekers to Serbia, that such an agreement was signed on 24 April 2019, and that both parties agreed not to publicly divulge their mutual rights and obligations. Given that Deutsche Welle obtained such confirmation indirectly, through insight in the Austrian MIA’s response to a question posed by the Liberals in the Austrian Parliament, BCHR considers it crucial that the Serbian authorities urgently and precisely clarify whether such an agreement exists.

The BCHR recalls that increasingly radical anti-migrant views are regrettably being propagated by some Serbian groups, and that some media and social networks are flooded with unconfirmed reports and dubious information about the alleged Austrian-Serbian agreement. Imprecise, unclear and partial information that is now available gives rise to risks of various forms of abuse and is not in the interest of the legal certainty of either Serbia’s citizens or the people transiting through Serbia and seeking international protection.

The BCHR calls on the relevant state authorities, primarily the Serbian Ministries of Internal and Foreign Affairs, to respond to the allegations about the agreement between Austria and Serbia. If these claims are true, the authorities should make the document available to the public. The BCHR notes that it is critical that Serbia’s state representatives conduct a clear and transparent migration policy.  

Belgrade Centre for Human Rights alarms the public on the problems that can be caused by conducting court hearings using technical means of transmitting sound and images (Skype) in light of the absolute prohibition of torture, inhuman or degrading treatment or punishment. According to the Centre, conducting hearings using technical means of transmitting sound and images would erode guarantees for protection against ill-treatment arising from Article 25 of the Constitution of the Republic of Serbia and Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which are of non-derogable nature.

A defendant who has been a victim of ill-treatment and who is during the hearing under control by officers who ill-treated him or are in a close hierarchical or organizational relationship with the perpetrators, may be discouraged from disclosing allegations of ill-treatment to the court. Furthermore, the situation whereby the defendant does not make a personal contact with his defence counsel but rather communicates through technical means of transmitting sound and images, as requested by the Protector of Citizens in a recently issued opinion, would significantly contribute to the discouragement of the defendant to bring out the ill-treatment allegations.

Moreover, according to the European Court of Human Rights’ case-law, even when strictly speaking no complaint of ill-treatment has been made, an investigation must be initiated if there are sufficiently clear indications that ill-treatment occurred, i. e. bruises and injuries on the defendant’s body (Stanimirovic v. Serbia, App. no. 26088/06, Judgment of 18 October 2011, § 39). In this respect, the possibility of a judge to notice injuries into the defendant’s body during the hearing, in which the defendant is present only via technical means of transmitting sound and image, is questionable. In some cases, European Court of Human Rights took into consideration such possibility of the judge during the hearing when examining the violation of the material aspect of Article 3 of the Convention (Almaši v. Serbia, App. no. 21388/15, Judgment of 8 October 2019, § 82).

Since the state of emergency was declared in Serbia on 15 March 2020, Belgrade Centre for Human Rights filed three criminal charges against police officers on suspicion of committing torture and ill-treatment (Article 137 of the Criminal Code) by using unjustified force against citizens who violated the prohibition of movement.

The Belgrade Centre for Human Rights (BCHR) hereby alerts the Serbian Government to the detrimental effects of the regulations enacted during the state of emergency and providing for the imposition of misdemeanour penalties against individuals violating the Order Restricting and Prohibiting the Movement of Individuals in the Territory of the Republic of Serbia (hereinafter: Order).

To recall, BCHR is of the view that the Order is unconstitutional, because it does not constitute valid grounds for derogations from constitutionally guaranteed human and minority rights (notably, the right to liberty and security of person and the freedom of movement) and that the Decree on Misdemeanour Violations of that Order provides for violations of the ne bis in idem principle. It therefore reminds the Serbian Government of the legal obstacles to convicting citizens of misdemeanours under the Order.

On 20 March 2020, the Serbian Government enacted a Decree on Statutory Limitations in Court Proceedings Conducted during the State of Emergency. Under this Decree, statutory limitations for appeals of misdemeanour decisions shall not run during the state of emergency, which was declared on 15 March 2020. This means that the statutory limitations for appeals of first-instance decisions convicting individuals of violating the Order will start running only once the state of emergency is lifted. However, pursuant to Article 202(3) of the Constitution, the Decree on Misdemeanour Violations shall cease to be effective when the state of emergency is lifted.

Article 6 of the Misdemeanour Act lays down that misdemeanour offenders shall be tried under the law that was in force at the time they committed the offence, or, in the event it was amended in the meantime, under the law more favourable to them. Therefore, the BCHR is of the view that individuals prosecuted for violating the Order will be exculpated after the state of emergency is lifted. In other words, misdemeanour courts will be unable to punish them and will be forced to discontinue all ongoing misdemeanour proceedings for violations of the Order.

Furthermore, the criteria for determining whether the individuals who violated the Order should be charged with a criminal offence (non-compliance with health regulations during epidemics) or with a misdemanour under the Decree remain unclear given that the elements of these offences are identical, while the penalties they warrant and their other legal consequences differ. This brings into question both equality before the law and legal certainty in criminal law, which the Constitution does not allow even in a state of emergency.

BCHR regrets the inadequate legal formulation of the numerous regulations the Serbian Government has enacted during the state of emergency, which will have grave consequences on the human rights and, ultimately, the budgets of Serbia’s citizens.