Published on 14 June 202 1

SECOND SECTION

Applications nos. 60417/16 and 79749/16 A.H. against Serbia and North Macedonia and A.H. against Serbia lodged on 19 October 2016 and 27 December 2016 respectively communicated on 27 May 2021

SUBJECT MATTER OF THE CASE

The present cases essentially concern the alleged difficulties encountered by the Sudanese applicant, Mr A.H., in attempt to seek international protection in Serbia, in the course of which he has been allegedly subject to several summary removals to the Republic of North Macedonia by the authorities of the Republic of Serbia and to Greece by the authorities of North Macedonia, respectively, without any formal removal decision and procedural safeguards in this respect.

Eventually, the applicant covertly returned to Serbia in December 2016. On 27 December 2016 the duty judge of the Court granted the applicant ’ s request under Rule 39 and indicated to the Serbian Government that he should not be removed from Serbia for the duration of the proceedings before the Court. The applicant is represented before the Court by Ms O. Đurović , a lawyer of the Asylum Protection Center , a non-governmental organisation based in Belgrade.

In respect of Serbia, the applicant complains: (a) under Article 3 of the Convention of the circumstances surrounding his summary removals to the Republic of North Macedonia, on 12 and 24 October 2016, respectively, bad reception conditions and a risk of eventual refoulement to Sudan; (b) under Article 5 § § 1 and 2 about his unlawful deprivation of liberty, without any decision or notification; and, lastly (c) under Article 13 to the Convention, in conjunction with Articles 3 and 5 of the Convention, that he had no access to a procedure before the national authorities that would have allowed him to challenge and postpone his summary removals to North Macedonia and/or his confinement.

In respect of the Republic of North Macedonia, the applicant raises the same complaints under Articles 3, 5 and 13 of the Convention, albeit concerning his summary removals to Greece allegedly carried by the authorities of North Macedonia, on 9 and 11 November 2016, as well as his confinement in the Tabanovce Transit Centre, between 14 and 19 October and between 24 October and 9 November 2016, respectively.

QUESTIONS TO THE PARTIES AND REQUESTS FOR INFORMATION

Common questions and requests for both responding States

Has the applicant exhausted all effective domestic remedies in Serbia and North Macedonia, respectively, in respect of his complaints raised before the Court, as required by Article 35 § 1 of the Convention?

Both respondent Governments are invited to inform the Court of any information that they have concerning the outcome of the asylum request that had been allegedly lodged by the applicant in Bulgaria.

They are further requested to submit case-law of the domestic courts on domestic administrative practices concerning alleged summary removals to the neighbouring countries carried out by their own authorities, if any.

The parties to the case are also invited to provide any available information concerning the conditions of reception facing the applicant and other asylum seekers removed to Serbia, North Macedonia and Greece.

Questions for the Government of the Republic of Serbia only

1. In light of the applicant ’ s allegations, did the Serbian authorities carry out summary removals on 12 and 24 October 2016 of a large group of individuals, including the applicant, to the territory of the Republic of North Macedonia? If so, was any judicial or administrative decision taken for this purpose and was the applicant notified of such a decision?

2. If so, were the applicant ’ s two alleged summary removals to the Republic of North Macedonia carried out in a safe, dignified and human manner? In particular, did the material conditions of the applicant ’ s confinement, his transport and the circumstances surrounding his alleged removals amount to inhuman or degrading treatment contrary to Article 3 of the Convention, (see 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)?

3. Did the alleged removals entail a real risk that the applicant would be subjected to ill-treatment, in violation of Article 3 of the Convention, both on the account of the reception conditions in the Republic of North Macedonia and/or of a risk of further refoulment to Greece or his country of origin? Moreover, was the presence of such a risk assessed prior to his removal?

4. Did the applicant have at his disposal an effective domestic remedy to raise before the Serbian authorities his complaints under Articles 3 and 5 of the Convention, as required by Article 13 of the Convention? Moreover, can a constitutional appeal be considered an effective domestic remedy in respect of complaints under Article 3 of the Convention, in view of the fact that it does not have automatic suspensive effect (see ÄŒonka v. Belgium , no. 51564/99, § 79, ECHR 2002 ‑ I; Gebremedhin [ Gaberamadhien ] v. France , no. 25389/05 , § 58, ECHR 2007 ‑ II; and Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 200, ECHR 2012)?

5. Are there currently any asylum or removal proceedings pending in Serbia against the applicant? If the case of latter, have directions been given as regards the date and the country of destination? Would the applicant face a real risk of being subjected to treatment, in breach of Article 3 of the Convention, if he was to be expelled to one of the transit countries or his country of origin, directly or by way of refoulement (see, in respect of the applicant ’ s country of origin, A.A. v. France , no. 18039/11, 15 January 2015 and A.F. v. France , no. 80086/13, 15 January 2015; M.A. v. Belgium , no. 19656/18, 27 October 2020; S.A. v. the Netherlands , no. 49773/15, 2 June 2020; see, also, mutatis mutandis , A.A. v. Switzerland , no. 58802/12, 7 January 2014)?

6. Are there any effective remedies currently available to the applicant, as required by Article 13 of the Convention, to which he can resort in the event of an attempt by the State authorities to expel him (see, mutatis mutandis , Abdolkhani and Karimnia v. Turkey , no. 30471/08, § 108, 22 September 2009)?

Questions for the Government of the Republic of North Macedonia only

7. Was the applicant provided with an opportunity to request asylum from the national authorities in the Republic of North Macedonia and did he express any wish in this respect?

8. In light of the applicant ’ s allegations, did the authorities of the respondent Government carry out on 9 and 11 November 2016 the summary removals of individuals, including the applicant, to the territory of Greece?

9. If so, did the applicant ’ s alleged summary removals to Greece on 9 and 11 November 2016 entail a real risk that he would be subjected to ill-treatment, in violation of Article 3 of the Convention ? In particular, did the authorities examine, prior to his removal, if he would risk any treatment contrary to Article 3 on account of the alleged deficiency in the asylum proceeding and/or bad conditions in the reception centres in Greece and possibility of his further removal to his country of origin?

10. Was the applicant ’ s confinement in the Tabanovce Transit Centre, in the period between 14 October and 19 October 2016 and 24 October and 9 November 2016, respectively, in breach of Article 5 § 1 of the Convention (see, mutatis mutandis , Amuur v. France , 25 June 1996, § 38-49, Reports of Judgments and Decisions 1996 ‑ III, Khlaifia and Others v. Italy [GC], no. 16483/12 , 15 December 2016? Did it fell within the first or second limb of paragraph (f) of this provision?

The Government are invited to submit the data and copies of the relevant documents regarding the applicant ’ s confinement, including the grounds for it.

11. Was the applicant ’ s confinement “in accordance with a procedure prescribed by law”?

12. Was the applicant informed promptly, in a language which he understood, of the reasons for his deprivation of liberty, as required by Article 5 § 2 of the Convention?

13. Did the applicant have at his disposal an effective and accessible procedure by which he could challenge the lawfulness of his confinement, as required by Article 5 § 4 of the Convention?

14. Alternatively, should Article 5 considered to be inapplicable to the circumstances of the present case, has there been a restriction on the applicant ’ s right to liberty of movement, guaranteed by Article 2 § 1 of Protocol No. 4 to the Convention?

15. Did the applicant have access to an effective remedy before a national authority within the meaning of Article 13 of the Convention, to assert his rights guaranteed under Articles 3 and 5 of the Convention, or alternatively, Article 2 § 1 of Protocol No. 4?