Published on 22 November 2021

SECOND SECTION

Applications nos. 50086/20 and 50898/20 E.B. against Serbia and A.A. against Serbia lodged on 6 November 2020 and 14 November 2020 respectively communicated on 5 November 2021

SUBJECT MATTER OF THE CASES

In the wake of the COVID-19 pandemic, the Serbian authorities declared a state of emergency, between 15 March and 6 May 2020, and introduced a set of extraordinary measures in order to prevent the spreading of the SARS-CoV-2 coronavirus . In this context, the executive authorities imposed, by a set of successive bylaws and/or administrative decisions, a temporary restriction on freedom of movement, between 1 March and 14 May 2020, of refugees, asylum seekers and migrants accommodated in asylum and reception centres in the Republic of Serbia, save with the authorisation by the Serbian Commissioner for Refugees and Migrations, for specific period of time and in exceptional circumstances, i.e. “to see a doctor or for another justifiable reasons”. During this period, the Serbian police and army allegedly provided enhanced supervision and security of the asylum and reception centres.

On 17 September 2020, the Constitutional Court refused the initiatives of several NGOs to open the proceedings for a review of constitutionality of, inter alia , the aforementioned measures.

The applicants have been enjoying the status of asylum seekers in Serbia, including the second applicant who was an unaccompanied minor at the relevant time. They complain under Article 5 § § 1, 2, 3, 4, in conjunction with Article 14 of the Convention, that the disproportionate restriction of their freedom of movement, i.e. the de facto 24 hour lockdown in the Krnjača Asylum Centre, was tantamount to house arrest and therefore constituted an unlawful, arbitrary, unnecessary and collective deprivation of liberty. In this regard, the criteria for confinement and relevant procedures for permission to seek leave under the applicable bylaws and decisions were too vague and the applicants did not have sufficient information on the reasons for their confinement and access to judicial protection in any form. Moreover, the contested measures were imposed on the basis of discriminatory criteria, unjustifiably distinguishing between refugees, asylum seekers and migrants accommodated in the asylum and reception centres, and the general population of Serbia, asylum seekers and aliens with residence in private accommodation. In particular, the State was not in general lockdown at the relevant time. The population had freedom of movement and the restaurants, cafes, shopping malls, betting centres, open and closed green markets, gyms and other services remained open during the said period or during a part of it.

The first applicant also complains that the disproportionate measures in question were in contravention with her right to liberty of movement as guaranteed by Article 2 of Protocol No. 4. As a consequence of these measures, she and her husband lost their jobs, her two sons could not attend the school classes and the family suffered physically and mentally as they were not allowed to go out to buy the essentials for daily life.

QUESTIONS TO THE PARTIES

1. Did the Government’s derogation from the rights and freedoms enshrined in the Convention comply with the requirements of Article 15 §§ 1 and 3 of the Convention? In particular, was there a public emergency threatening the life of the nation and were the measures taken strictly required by the exigencies of the situation?

2. In view of all the circumstances, including - but not limited to - the nature of the contested measures and the Constitutional Court’s jurisprudence on the measures introduced in the context of prevention of the spreading of the SARS-CoV-2 virus (see e.g. the Constitutional Court’s decision IUo – 45/2020) have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

3. Has there been a violation of the applicants’ right to liberty of movement, contrary to Article 2 of Protocol No. 4? In particular, was the restriction of that right to the Krnjača Asylum Centre in accordance with the law and necessary, within the meaning of Article 2 §§ 3 and 4 of Protocol No. 4?

4. Alternatively, is Article 5 of the Convention applicable in the present cases? In particular, was the applicants’ confinement in the Krnjača Asylum Centre serious enough, in terms of its context, form, duration, level of intensity, manner of implementation and/or effect, to fall within the ambit of a deprivation of liberty within the meaning of Article 5 § 1 of the Convention (see, in the context of the general lockdown introduced to tackle the COVID-19 pandemic, TerheÅŸ v. Romania (dec.), no. 49933/20, §§ 39-47, 13 April 2021; see, mutatis mutandis , in the context of the confinement in transit zones and reception centres, Amuur v. France , 25 June 1996, § 38-49, Reports of Judgments and Decisions 1996 ‑ III; Khlaifia and Others v. Italy [GC], no. 16483/12, § § 64-71, 15 December 2016; J.R. and Others v. Greece , no. 22696/16, §§ 83-87, 25 January 2018; Ilias and Ahmed v. Hungary [GC], no. 47287/15, §§ 211-251, 21 November 2019; see, also, for the general standards Austin and Others v. the United Kingdom [GC], nos. 39692/09 and 2 others, §§ 53-59, ECHR 2012, De Tommaso v. Italy [GC], no. 43395/09, §§ 80-81, 23 February 2017; Guzzardi v. Italy , 6 November 1980, §§ 92-95, Series A no. 39)? If so, what was the particular ground for the applicants’ deprivation of liberty and did it the fell within the paragraph (e) of this provision?

5. Was the applicants’ confinement in breach of Article 5 § 1 of the Convention (see, mutatis mutandis , Enhorn v. Sweden , no. 56529/00, §§ 43-44, ECHR 2005 ‑ I, and Plesó v. Hungary , no. 41242/08, §§ 54-69, 2 October 2012)? If the confinement was imposed “for the prevention of the spreading of infectious diseases”, have the authorities envisaged or considered any less severe measures in the present case?

6. Was the applicants’ confinement “in accordance with a procedure prescribed by law”, in particular concerning the requirement of “quality of law” and “arbitrariness” (see, mutatis mutandis , Suso Musa v. Malta , no. 42337/12, §§ 94-107, 23 July 2013)?

7. Were the applicants informed promptly, in a language which they understood, of the reasons for their deprivation of liberty, 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)?

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

9. Did the applicants have an effective and enforceable right to compensation for their detention, for the alleged violation of their rights under paragraphs 1 to 4 of Article 5, as required by Article 5 § 5 of the Convention (see, for example, Nolan and K. v. Russia , no. 2512/04, §§ 102 105, 12 February 2009)?

10. Have the applicants suffered discrimination in the enjoyment of their right to liberty of movement, contrary to Article 14 of the Convention, read in conjunction with Article 5 of the Convention and/or Article 2 of Protocol No. 4 to the Convention?

Lastly, the Government are invited to clarify and submit copies of the relevant legislation and practice concerning (a) the imposed measures, (b) procedure for seeking permission to leave the reception and asylum centres at the relevant time, (c) how the exceptional and justifiable reasons for which it could be granted have been interpreted in practice of the competent authorities and (d) on the right to appeal against negative decisions.

No.

Application nos.

Applicant Year of Birth Place of Residence Nationality

Representatives

50086/20

E.B. 1976 Belgrade (Asylum Centre in Krnjača) Iranian

Belgrade Centre for Human Rights

50898/20

A.A. 2002 Belgrade (Asylum Centre in Krnjača) Afghan

Nikola Kovačević