Serbian Constitutional Court Rules Serbian Authorities Illegally Deported 17 Afghani Migrants

January 25, 2021

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.

Protector of Citizens refuses to establish errors and omissions that may have resulted in the high mortality rate among doctors and other health professionals in Serbia

January 21, 2021

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.