ECtHR - S.E. v. Serbia, Application No. 61365/16, 11/07/2023

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)
Country of origin
Nationality
Political Opinion

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 National Legislation
Serbia, Act, Asylum Act (Zakon o azilu), Official Gazette of the Republic of Serbia No. 97/2008, 26 November 2007.
Serbia, Act, Asylum and Temporary Protection Act (Zakon o azilu i privremenoj zaštiti), Official Gazette of the Republic of Serbia No. 24/2018, 22 March 2018.

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).