ECtHR - S.E. v. Serbia, Application No. 61365/16, 11/07/2023
| Country of applicant: | Syria |
| Court name: | European Court of Human Rights |
| Date of decision: | 11-07-2023 |
| Citation: | ECtHR, S.E. v. Serbia, Application No. 61365/16, 11 July 2023 |
| ECLI: | ECLI:CE:ECHR:2023:0711JUD006136516 |
Keywords:
| Keywords |
|
Freedom of movement (right to)
Description
Generally: “This right is made up of three basic elements: freedom of movement within the territory of a country, right to leave any country and the right to return to his or her own country." In an EU context: "A fundamental right of every citizen of an EU Member State or another European Economic Area (EEA) State or Switzerland to freely move, reside and work within the territory of these States. Notes: 1. This is a fundamental right enshrined in Article 45 of the Charter of Fundamental Rights of the European Union. 2. Whilst initially one of the founding rights in the establishment of the European Union, it has also been extended, via various acquis and agreements (e.g. see Protocol 19 of the Treaty on the Functioning of the EU), to other EEA states (i.e. Iceland, Liechtenstein, Norway) plus Switzerland and certain categories of third-country nationals (as outlined in Notes 4. and 5. below). 3. Some Member States have applied transitional arrangements that currently restrict freedom of movement of workers/(citizens) of EU-2 Member States (see http://ec.europa.eu). 4. Whilst third-country nationals have the right to travel freely within the Schengen area, taking up residence in another Member State is covered by specific legal instruments, detailed below. 5. Third-country nationals may take up residence in another Member State depending on their status and subject to the necessary conditions being met. For third-country nationals who are long-term legal residents in an EU Member State, this is covered by Chapter III of Council Directive 2003/109/EC, whilst for third-country nationals with highly qualified employment, this is covered by Article 18 of Council Directive 2009/50/EC.” |
|
Country of origin
Description
The country (or countries) which are a source of migratory flows and of which a migrant may have citizenship. In refugee context, this means the country (or countries) of nationality or, for stateless persons, of former habitual residence. |
|
Nationality
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. Nationality can be defined generally as the legal bond between a person and a State which does not indicate the person's ethnic origin. According to the Qualification Directive, when considered as a reason for persecution, the concept of nationality is not confined to citizenship or lack thereof and, in particular, includes membership of a group determined by its cultural, ethnic, or linguistic identity, common geographical or political origins or its relationship with the population of another State |
|
Political Opinion
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive the concept of political opinion includes holding an opinion, thought or belief on a matter related to potential actors of persecution and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant. |
Headnote:
Serbia, by refusing to issue the refugee applicant a travel document due to the absence of appropriate regulations, breached Article 2 § 2 of Protocol No. 4 of the ECHR
Facts:
The applicant is a Syrian national who obtained refugee status in Serbia. He applied for a travel document, which was denied through a notification stating that the Ministry of Interior has not implemented subsidiary regulations to issue travel documents to refugees under Article 58 § 1 (4) of the Asylum Act, which did not contain any legal or administrative recourse for the applicant. He filed an appeal against this notification under Article 170 of the Constitution, which was declared inadmissible by the Constitutional Court, stating that Article 170 could not be used against the non-adoption of a general legal act. Subsequently, the applicant obtained a Syrian national passport from the Syrian embassy in Belgrade and left the Serbian territory for Germany.
Decision & reasoning:
The applicant argued that Article 2 § 2 of Protocol No. 4 of the ECHR legally obliges Serbia to ensure that he could freely leave and return to Serbia. He added that Serbia disregarded its obligation to protect his freedom of movement by failing to provide travel documents. The Serbian Government disputed any interference with the applicant’s right to leave Serbia. They also argued that the nature of reasons behind the refusal to issue travel documents was merely technical due to the lack of subsidiary regulations to the Asylum Act, and hence did not constitute a violation of Article 2 § 2 of Protocol No. 4 of the ECHR.
The UNHCR (third-party intervener in the case) submitted to the Court that the State Parties to the 1951 Refugee Convention have a mandatory obligation to issue travel documents under Article 28 of the Convention. They stated that the objective of Article 28 is to facilitate international freedom of movement for refugees, which is also guaranteed under Article 12 (2) of the ICCPR and Article 2 § 2 of Protocol No. 4 of the ECHR. They further added that Serbia has failed to enact subsidiary regulations to issue travel documents for recognised refugees despite several UNHCR and NGO interventions.
The Court observed that Article 2 § 2 of Protocol No. 4 cannot be considered to impose a general obligation on Contracting States. However, irrespective of the intentions of the Serbian authorities, the Court found that the refusal to issue a travel document ultimately interfered with the right to freedom of movement of the applicant. The Court further considered whether this interference was “in accordance with law” and found that the legislative inaction surrounding the Asylum Acts has lasted a long time, indicating systemic failure on the part of the authorities. Hence, the Court concluded that the State authorities, by their refusal to issue the applicant a travel document, have curtailed his right to freely leave Serbia.
Outcome:
The Court found Serbia in violation of Article § 2 of Protocol No. 4 of the ECHR. The Court applied Article 41 and Article 44 § 2 of ECHR and rejected pecuniary damages requested by the applicant but allowed non-pecuniary damages chargeable to 3500 EUR. The Court, by applying Article 46 of ECHR, ordered the Respondent State to take statutory and operational measures to complete the legislative framework.
Observations/comments:
This summary was written by Archana Pingal during her participation in the Migration Law Clinic of Gent University.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Müslim v Turkey (Application no. 53566/99) |
| ECtHR - Hirsi Jamaa and Others v Italy [GC], Application No. 27765/09 |
| ECtHR - Assanidze v Georgia [GC], Application No. 71503/01 |
| ECtHR- Scozzari and Giunta v. Italy [GC], ( Application nos. 39221/98 and 41963/98) |
| ECtHR - Baumann v. France, (no. 33592/96) |
| ECtHR - F.G. v. Sweden (no. 43611/11) (Grand Chamber), 23 March 2016 |
| ECtHR - Mogoş v. Romania ((dec.), no. 20420/02, 6 May 2004) |
| ECtHR - Aristimuno Mendizabal v. France, Application no. 51431/99 |
| ECtHR – Vuckovic and others v Serbia, Application No. 17153/11 |
| ECtHR - Valašinas v. Lithuania, Application no. 44558/98 , ECHR 24 October 2001 |
| ECtHR - Khlaifia and Others v. Italy (GC), no. 16483/12, 15 December 2016 |
| ECtHR, M.S.S. v Belgium and Greece [GC], Application No. 30696/09, 21 January 2011 |
| ECtHR - Lekić v. Slovenia, Application no. 36480/07, 2018 |
| ECtHR - Bartik v. Russia, Application no. 55565/00, 21/12/2006 |
| ECtHR - Rotaru v. the Republic of Moldova, Application no. 26764/12, 08/12/2020 |
| ECtHR - Berkovich and Others v. Russia, Application nos. 5871/07 and 9 others, 27/03/2018 |
| ECtHR - Mursaliyev and Others v. Azerbaijan, Application nos. 66650/13 and 10 others, 13/12/2018 |
| ECtHR - Kerimli v. Azerbaijan, Application no. 3967/09, 16/07/2015 |
| ECtHR - A.E. v. Poland, Application no. 14480/04, 31/03/2009 |
| ECtHR - Stamose v. Bulgaria, Application no. 29713/05, 27/11/2012 |
| ECtHR - Khlyustov v. Russia, Application no. 28975/05, 11/07/2013 |
| ECtHR - Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], Application No. 47848/08, 17/07/2014 |
| ECtHR - Roman Zakharov v. Russia [GC], Application No. 47143/06, 04/12/2015 |
| ECtHR - H.F. and Others v. France, Application Nos. 24384/19 and 44234/20, 14/09/2022 |
| ECtHR - Battista v. Italy, Application No. 43978/09, 02/12/2014 |
| ECtHR - Diamante and Pelliccioni v. San Marino, Application No. 32250/08, 27/09/2011 |
| ECtHR - Iovita v. Romania (dec.), Application No. 25698/10, 07/03/2017 |
| ECtHR - L. v. Lithuania, Application No. 27527/03, 11/09/2007 |
| ECtHR - Lolova and Popova v. Bulgaria (dec.), Application No. 68053/10, 20/01/2015 |
| ECtHR - Napijalo v. Croatia, Application No. 66485/01, 13/11/2003 |
| ECtHR - Peltonen v. Finland (dec.), Application No. 19583/92, 20/02/1995 |
| ECtHR - Riener v. Bulgaria, Application No. 46343/99, 23/05/2006 |
| ECtHR - Rodić and Others v. Bosnia and Herzegovina, Application No. 22893/05, 27/05/2008 |
| ECtHR - Roldan Texeira and Others v. Italy (dec.), Application No. 40655/98, 26/10/2000 |
| ECtHR - Soltysyak v. Russia, Application No. 4663/05, 10/02/2011 |
| ECtHR - Stamose v. Bulgaria, Application No. 29713/05, 27/11/2012 |
| ECtHR - Stojanović v. Serbia, Application No. 34425/04, 19/05/2009 |
Other sources:
Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms – Article 2 § 2 (Freedom to leave any country).
Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms – Article 2 § 3 (Restrictions on freedom of movement).
Committee of Experts to the Committee of Ministers, Report H (65) 16, 18 October 1965 – §§ 15 and 18.
Council of Europe, Explanatory Report to Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 46, 16 September 1963 – § 15.
Rules of Court of the European Court of Human Rights – Rule 77 §§ 2 and 3 (Signature, delivery and notification of judgments).