Constitutional Court Invalidates Parliament’s Role in State of Emergency Proclamation Procedure

May 26, 2020

By dismissing as manifestly ill-founded the initiatives to review the constitutionality of the Decision on the State of Emergency of 15 March 2020, the Constitutional Court of Serbia has invalidated the National Assembly’s role in the state of emergency proclamation procedure.

The Serbian Constitution gives the National Assembly the main role during a state of emergency. Under Articles 99, 105, 106, 109 and 200 of the Constitution, the National Assembly shall proclaim a state of emergency and may impose measures derogating from human and minority rights; a disbanded National Assembly shall perform only current or urgent tasks stipulated by law and, in case a state of emergency is proclaimed, it shall regain its full competence until the state of emergency is lifted; and, the National Assembly shall be convoked without notice upon the proclamation of a state of emergency. Pursuant to the Constitution, in the event the decision on the state of emergency is not taken by the National Assembly, the National Assembly shall verify it within 48 hours or as soon  as it is in a position to convene. A decision on the state of emergency not verified by the National Assembly shall cease to be effective upon the end of its first session after the proclamation of the state of emergency. The Serbian Government is under the duty to submit the decrees on measures derogating from human and minority rights, which are co-signed by the Serbian President, for verification by the National Assembly within 48 hours or as soon as the National Assembly is in a position to convene. Otherwise, such measures shall cease to be effective 24 hours after the beginning of the first session of the National Assembly held after the proclamation of the state of emergency. 

The National Assembly Speaker’s notice to the Serbian President and Government of 15 March 2020 that the Assembly was not in a position to meet sufficed for the Constitutional Court to conclude that there was no cause to review the constitutionality of the Decision on the State of Emergency, which was adopted by the Serbian President, Prime Minister and National Assembly Speaker rather than the National Assembly.

The initiatives submitted to the Constitutional Court de facto raised the issue of abuse of the constitutional provision exceptionally providing for the proclamation of a state of emergency by the President, Prime Minister and Speaker in the event the National Assembly cannot meet. The Constitutional Court held that it “had no constitutional or other legal grounds to question the Speaker’s notice that the parliament was unable to meet,” wherefore it did not question, under constitutional law, the Speaker’s power to herself suspend the work of the legislature, without first calling and holding a session of the Collegium[1], obtaining the opinions of the MPs, their caucuses or the parliamentary committees on whether it was possible to hold a session, and to opt for the constitutional exception. It thus comes as no surprise, although it definitely gives rise to concern, that the Constitutional Court qualified the proclamation of the state of emergency by the Serbian President, Prime Minister and parliament Speaker as an alternative rather than a subsidiary procedure.

In its explanation of its decision, the Constitutional Court devoted a lot of space to enumerating and analysing the facts supporting the introduction of the state of emergency (the epidemiological situation in China, Spain, France, Italy, Serbia, the unknowns surrounding COVID-19, etc.). On the other hand, it did not deem relevant to examine the actions (e.g. calling and holding a session of the Collegium, obtaining the opinions of the MPs, their caucuses or the parliamentary committees on whether a session could be held elsewhere, et al) that should have preceded the Speaker’s notice to the Serbian President and Prime Minister that the Assembly could not meet. The Constitutional Court explained that it was unable to assess the Assembly’s organisational capacity to meet without delay in an emergency threatening human life and health.

The invalidation of the parliament’s role also brings into question the constitutionally proclaimed sovereignty vested in the people and exercised through their freely elected representatives. The Constitutional Court apparently does not consider the possibility of one MP (merely “the first among equals”) usurping this sovereignty a relevant constitutional law issue.

To recall, the Belgrade Centre for Human Rights filed three initiatives with the Constitutional Court to review the constitutionality of the Serbian authorities’ state of emergency decisions and their compliance with ratified international treaties. These initiatives are still pending before the Constitutional Court.

 

[1] The National Assembly Collegium is a body convened by the National Assembly Speaker to coordinate and consult on the work of the National Assembly. The Collegium comprises the National Assembly Speaker, National Assembly Deputy Speakers and heads of the parliamentary groups in the National Assembly.

BCHR Calls on the State to Enable Citizens without Personal Documents to Exercise the Right to One-Off Financial Aid without Delay

May 21, 2020

A number of citizens deprived of liberty and serving their prison sentences in Serbian penitentiaries contacted the Belgrade Centre for Human Rights since 15 May, asking for assistance in exercising their right to one-off financial aid the state is granting to dampen the effects of the COVID-19 pandemic. They said that they did not have ID cards at all or that their ID cards had expired and that they were unable to obtain personal documents whilst in prison.

Under the Serbian Government Decree on one-off financial aid to Serbian nationals adopted on 24 April 2020, all adult nationals of Serbia with valid ID cards are entitled to such aid. The Decree, however, does not address exercise of this right by citizens who do not have valid personal documents. The deadline for applying for the financial aid expires on 5 June 2020.

We therefore appeal to the Serbian Government to as soon as possible amend the Decree to enable a large number of Serbian nationals without personal documents (who are living, e.g. in closed institutions or informal Roma settlements), as well as citizens who do not have phones or the Internet, to exercise their right to one-off financial aid. We also urge the Government to extend the deadline for applying for the aid.

BCHR Files Criminal Report against Guards for Violence against Unaccompanied Children in the Bogovađa Asylum Centre

May 19, 2020

The Belgrade Centre for Human Rights (BCHR) alerts the public to the inadmissible conduct of the Bogovađa Asylum Centre security guards, who verbally and physically abused the unaccompanied children living in the Centre. The BCHR filed a criminal report against the guards with the Ub Basic Public Prosecution Service. The incident also prompted a visit to the Centre by the Protector of Citizens on 15 May 2020.

An incident broke out at the Bogovađa Asylum Centre in the night of 11/12 May 2020, during which the guards of the company Dekapolit, contracted to maintain security of the Centre, physically and verbally abused the unaccompanied children living in the Centre. The video footage of the violence clearly shows a guard threatening the children and punching one child and hitting him with an object resembling a baton. The same group of children was intimidated by that guard when he found out that there was video footage of the incident and that the relevant authorities were notified of it.

In BCHR’s view, the conduct of the staff of the company contracted to maintain security in the Bogovađa Asylum Cenre includes elements of the crime of torture and ill-treatment under Article 137 of the Serbian Criminal Code. The BCHR filed a criminal report against the guards to the relevant prosecution service. The competent authorities ought to react urgently in this case since any kind of violence, including within institutions under the State’s jurisdiction, is inadmissible, especially when it is perpetratated against a particularly vulnerable category, such as children.

Given the risk of the violence recurring and that the children are intimidated by the abusers’ ongoing presence in the Centre, we call for their urgent removal from the Bogovađa Asylum Centre and any other facilities in which both refugees and migrants and nationals of Serbia reside. Such an urgent measure should be imposed immediately to protect the children now living in the Republic of Serbia and prevent any similar incidents in Asylum and Reception Centres in the future. Maintaining security of facilities such as Asylum Centres involves exercise of public powers, conferred upon the guards by the State, which is under the obligation to ensure it is not conferred upon abusers. We call on the prosecution service to immediately and thoroughly act on the criminal report given the particular vulnerability of children in the Bogovađa Asylum Centre and on the company Dekapolit to suspend its staff who took part in the incident pending the completion of the investigation and to dismiss them in the event they are found guilty of the crime.

Online survey – how well young people were informed during COVID-19 pandemic

May 14, 2020

Informisanost mladih covid-19 1The BCHR’s Youth Programme conducted an online survey on how well informed young people were about the situation in the country during the state of emergency imposed in response to the COVID-19. The survey was conducted within the “On an Isolated Youth” campaign in the 31 March – 11 April 2020 period. The respondents were asked to fill a questionnaire on how well they were informed about the situation in Serbia and most of the world and on their mental health and support and solidarity among youths.

The survey results showed that over half (57.4%) of the youths thought that they were well-informed about the situation caused by the COVID-19 pandemic. As many are 25.6% of the respondents thought that there was an overload of information and that they were too well-informed, 13.8% rated their knowledge as middling, while only 1% believed they were insufficiently informed about the situation. Another 1% said that they did not want to be informed of this topic at all.

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Initiative Filed with the Constitutional Court to Review the Constitutionality and Legality of the Order Restricting Movement on Roads Leading to Asylum and Reception Centre Facilities and Grounds

May 12, 2020

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

Stories from Isolated Islands published in Latest Issue of Our Youth Programme’s Newsletter

May 11, 2020

Capture newsletter 3The latest Newsletter brings “Stories from Isolated Islands” our Youth Programme received within the “On an Isolated Youth” campaign. 

The BCHR Youth Programme team invited its friends, young people, to share stories of the time they have spent in isolation and how they have felt in such isolated circumstances. We want to thank everyone on their courage, honesty and willingness to share their stories with others. Feel free to download and read the stories and experiences of Milica J, Goran, Milica C, Vlada, Sofija, Vasil, Tamara, Bojana and Dino! 

The first and second Newsletters focused on providing information about and promoting human rights of youths in this time of crisis.

The Newsletters are part of the campaign the Youth Programme launched during the COVID-19 pandemic.  You can follow the campaign on our social media profiles, Facebook and Instagram, and on the BCHR’s website.   

Please feel free to contact us if you want to share your thoughts or stories from your isolated islands with us or report violations of youth human rights at youth@bgcentar.org.rs and in DM on Instagram @mladibgcentar.

The new issue of the Newsletter is available in Serbian HERE.