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.
