Published on 12 July 202 1

SECOND SECTION

Application no. 57185/17 O.H. and Others against Serbia lodged on 1 August 2017 c ommunicated on 23 June 2021

SUBJECT MATTER OF THE CASE

The present case concerns the conditions in which seventeen Afghan applicants (see the appended list), including seven minors at the relevant time, in February 2017, were apprehended by police after having covertly entered Serbian territory from Bulgaria, placed in administrative detention and ultimately summarily returned to Bulgaria, without any removal procedure and a reasonable and objective assessment of each applicant ’ s individual case.

The third, fourth, fifth and sixth applicants currently reside in Bulgaria, while all other applicants returned to Serbia and stay in the Krnja č a (Belgrade) Asylum Centre or Divljana (Bela Palanka ) Reception Centre respectively (for more details, see the appended list). Their constitutional appeal concerning the complaints raised before the Court are apparently still pending before the Constitutional Court

The applicants complain: (a) under Article 3 of the Convention that the Serbian authorities summarily removed them to Bulgaria, while disregarding their expressed wish to apply for asylum in Serbia, as well as about the circumstances and material conditions of their detention, transport and removal; (b) under 5 §§ 1 (f), 2 and 4 of the Convention in relation to their alleged detention; (c) under Article 4 of Protocol No. 4 that they were subjected to a summary removal which amount to a collective expulsion; and lastly, (d) that they had no access to an effective remedy before the national authorities to challenge and postpone their alleged collective expulsion to Bulgaria, in breach of Article 13 of the Convention in conjunction with Article 3 of the Convention and Article 4 of Protocol No. 4.

QUESTIONS TO THE PARTIES AND REQUEST FOR INFORMATION

1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

Articles 3 and 13 of the Convention and Article 4 of Protocol No. 4

2. Were the applicants provided with an opportunity to access to asylum proceedings after showing their intention to seek asylum before the national authorities on 3 February 2017 (see, for example, Hirsi Jamaa and Others v . Italy [GC], no. 27765/09, § 203, ECHR 2012)?

3. In light of the applicants ’ allegations, did the Serbian authorities, on 4 February 2017 compel the applicants, who had entered their territory from Bulgaria the previous day, to leave the Serbian territory and return to Bulgaria? Moreover, were the applicants ’ identity documents seized by the Serbian authorities on this occasion?

4. If so, was the applicants ’ alleged summary removal to Bulgaria, notwithstanding their intention to seek international protection in Serbia, consistent with the respect for the principle of non-refoulment as required under Article 3 of the Convention and carried out in a safe, dignified and human manner (see Soering v. the United Kingdom , 7 July 1989, §§ 90-91, Series A no. 161; Vilvarajah and Others v. the United Kingdom , 30 October 1991, § 103, Series A no. 125; H.L.R.v . France , 29 April 1997, § 34, Reports 1997-III; Jabari v. Turkey , no. 40035/98, § 38, ECHR 2000 ‑ VIII, and Saadi v. Italy [GC], no. 37201/06, § 152, ECHR 2008)? Did it entail a real risk that they would be subjected to ill-treatment, in violation of Article 3 of the Convention?

5. Have the applicants been subjected to a collective expulsion to Bulgaria by the authorities of the respondent State in breach of Article 4 of Protocol No. 4 (see, for example, ÄŒonka v. Belgium , no. 51564/99, ECHR 2002 ‑ I; Hirsi Jamaa and Others , cited above; Sharifi and Others v. Italy and Greece , no. 16643/09, 21 October 2014; Georgia v. Russia (I) [GC], no. 13255/07, §§ 167-178, ECHR 2014 (extracts), and N.D. and N.T. v. Spain [GC], nos. 8675/15 and 8697/15, 13 February 2020)? Furthermore,

- did the authorities ensure a reasonable and objective assessment of the particular case of each applicant within the group;

- was any expulsion decision taken for this purpose and were the applicants notified of such a decision; and, lastly,

- did the applicants have access to a lawyer with a view to challenging the expulsion decision before the national courts?

6. Did the material conditions of the applicants ’ detention in the Gradina border police station, their transport and the circumstances surrounding their alleged removal to Bulgaria amount to inhuman or degrading treatment contrary to Article 3 of the Convention, in particular having regard to the fact that the seven applicants were minors at the relevant time (see, mutatis mutandis , Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999 ‑ V; Abdolkhani and Karimnia v. Turkey (no. 2) , no. 50213/08, 27 July 2010; Horshill v. Greece , no. 70427/11, 1 August 2013; Tarakhel v. Switzerland [GC], no. 29217/12, ECHR 2014 (extracts); Varga and Others v. Hungary , nos. 14097/12 and 5 others, § § 44-45, 10 March 2015; Moustahi v. France , no. 9347/14, §§ 54-56 and 65-67, 25 June 2020)?

The respondent Government are invited to comment on the applicants ’ allegations and the supporting material supplied by them in this respect.

7. Were the applicants deprived of any remedy which would have enabled them to assert with a competent national authority their rights guaranteed by Article 3 of the Convention and Article 4 of Protocol No. 4, as required by Article 13 of the Convention, in order to obtain a thorough and rigorous assessment of their requests before the removal measure was enforced?

Article 5

8. Was the applicants ’ deprivation of liberty in the Gradina border police station, in breach of Article 5 of the Convention (see, mutatis mutandis , Nolan and K. v. Russia , no. 2512/04, §§ 93-96, 12 February 2009, in the context of duration of detention; see Popov v. France , nos. 39472/07 and 39474/07, 19 January 2012, in the context of the protection of children ’ s interest; see, further, Saadi , cited above, §§ 64-66, ECHR 2008; Khlaifia and Others v. Italy [GC], no. 16483/12, 15 December 2016, and De Tommaso v. Italy [GC], no. 43395/09, § 80, 23 February 2017)? What was the particular ground for the applicants ’ deprivation of liberty and did it the fell within the first or second limb of paragraph (f) of this provision?

9. Was the applicants ’ detention “in accordance with a procedure prescribed by law” (see, mutatis mutandis , R.U. v. Greece , no. 2237/08, §§ 88-96, 7 June 2011, and Suso Musa v. Malta , no. 42337/12, §§ 94-107, 23 July 2013)?

10. Were the applicants informed promptly, in a language which they understood, of the reasons for their arrest, as required by Article 5 § 2 of the Convention (see Khlaifia and Others , cited above, § 115, and J.R. and Others v. Greece , no. 22696/16, §§ 121-124, 25 January 2018)?

11. Did the applicants have at their disposal an effective and accessible procedure by which they could challenge the lawfulness of their deprivation of liberty, as required by Article 5 § 4 of the Convention (see Khlaifia and Others, cited above, §§ 128 and 130-131)?

12. The Government are invited to submit the data and copies of the relevant documents regarding the applicants ’ deprivation of liberty, including the grounds for it.

APPENDIX

No.

Applicant ’ s Name

Gender

Year of birth

Nationality

Place of residence

1.O.H.

M

2000Afghan

Bela Palanka (SER)

2.H.A.

M

2000Afghan

Bela Palanka (SER)

3.F.A.

F

1990Afghan

Sofia (BLG)

4.M.A.

F

2011Afghan

Sofia (BLG)

5.Mi.A .

F

2015Afghan

Sofia (BLG)

6.Mo.A

M

2013Afghan

Sofia (BLG)

7.Z.F.

F

1993 or 2000

Afghan

Asylum Centre Krnjača (SER)

8.M.H.

F

1962Afghan

Bela Palanka (SER)

9.T.H.

M

1994Afghan

Bela Palanka (SER)

10.H.N.

M

2001Afghan

Bela Palanka (SER)

11.J.N.

M

1996Afghan

Bela Palanka (SER)

12.A.J.R .

M

2014Afghan

Asylum Centre Krnja č a (SER)

13.A.R.

F

2009Afghan

Belgrade (SER)

14.N.R.

M

1975Afghan

Belgrade (SER)

15.S.R.

F

1982 or 1989

Afghan

Belgrade (SER)

16.S.R.

F

2010Afghan

Belgrade (SER)

17.T.R.

F

2011Afghan

Belgrade (SER)