Legal summary

July 2023

S.E. v. Serbia - 61365/16

Judgment 11.7.2023 [Section IV]

Article 2 of Protocol No. 4

Article 2 para. 2 of Protocol No. 4

Freedom to leave a country

Refusal to issue a recognised Syrian refugee a travel document for seven years due to absence of regulations implementing domestic asylum law: violation

Article 46

Article 46-2

Execution of judgment

Individual measures

General measures

Respondent State required to address structural problem by taking statutory and operational measures to complete legislative framework and implementing regulations

Facts – In 2015 the applicant was granted refugee status in Serbia on the grounds of his political activities in Syria and the general state of insecurity in that country. He applied to the Asylum Office to be issued with a travel document for refugees (“CTD”) as his Syrian national passport had expired. He was notified that this could not be done as subsidiary regulations governing the form and content of travel documents for refugees had not yet been enacted by the Minister of the Interior as required by the relevant domestic law. The applicant’s constitutional appeal of that notification was dismissed. In 2022 he obtained a Syrian national passport and used it to leave Serbia.

Law – Article 2 of Protocol No.4

(a) Applicability – Intentional or unintentional actions or omissions of a public authority liable to infringe the right to leave any country or to restrict its exercise, and which therefore had had the effect of excluding certain persons from the exercise of that right, guaranteed by Article 2 of Protocol No. 4, might fall within its scope. Therefore, the Government’s argument that the State’s refusal to issue a travel document to the applicant had not been a consequence of restrictive measures with the aim of prohibiting him from leaving Serbia did not render that Article inapplicable, as long as the consequences produced by the State’s actions or omissions might have precluded him from doing so. The applicant’s right to leave Serbian territory appeared to be, in view of the relevant domestic law, connected to the possession of a valid travel document. There was no indication that he could have left Serbia or travelled to any other State without one. Once his national passport had expired his right to leave Serbia could not have been practical and effective without him having the possibility of obtaining a travel document. Despite the applicant’s statutory entitlement, the authorities had rejected his request for a CTD because the relevant implementing regulations had not yet been enacted. The Court had no reason to doubt that the applicant could not have left Serbia without holding a valid travel document. Accordingly, his complaint about the authorities’ failure to issue him one was compatible ratione materiae.

Conclusion : preliminary objection dismissed ( ratione materiae ).

(b) Merits – The applicant was a recognised refugee who had been compelled to leave his country of origin to seek refuge in Serbia for fear of persecution or threats for his safety. In this regard there was a broad consensus at international and European level on the need for special protection of refugees, including the obligation to issue an appropriate travel document which was necessary, in principle, for the exercise of their fundamental human right to freedom of movement.

(i) Existence of an interference – Irrespective of the lack of intention on the part of Serbian authorities to restrict the applicant’s right to leave Serbia, that right had been interfered with. Despite his statutory entitlement, the authorities had been unable to issue him with a CTD because the relevant implementing regulations had not yet been enacted. That refusal had been an obstacle to the effective enjoyment of his right to leave that country for an extended period of seven years, it being acknowledged that his national passport had expired and that he had had no ability to obtain any other travel document.

The Court was not convinced that the applicant had had the option of applying to his State of nationality, Syria, to obtain a national passport and legally leave Serbia with it at any time, as he eventually had done. It would have been in defiance of the State’s international obligations and hard to reconcile with the principle of the rule of law to refuse issuing a CTD by referring the applicant to his country of nationality, which in the present case was the State from which he had fled persecution. The Serbian authorities, by granting the applicant refugee status had recognised he had had a well-founded fear of persecution and he “[had been] unable or, owing to such fear, [had been] unwilling to avail himself” of the protection of his own State of nationality. They had never claimed he had been no longer in need of protection and they could not have expected him to take the risk of losing his refugee status by obtaining a Syrian passport. The fact that after seven years of being in a state of uncertainty and a legal limbo on Serbian territory, the applicant had decided “unwillingly” to take the risk of asking the Syrian authorities to issue him with a national passport could not absolve the respondent State from its obligations under Article 2 § 2 of Protocol No. 4 and did not affect the finding that the Serbian authorities had interfered with his right to leave its territory. The State could not circumvent its own accepted obligations and impose an obligation of “naturalisation” on the applicant to be able to leave its territory.

(ii) Justification for the interference – The former 2008 and current 2018 Asylum Act both recognised the individual right of a recognised refugee to obtain a CTD and empowered and required the Minister of the Interior within sixty days to enact subsidiary legislation to ensure their implementation, specifically to regulate and have more detailed provisions on standards in this regard. Therefore, the applicant’s entitlement to a CTD had emanated from the domestic legislation, which gave effect to the obligations stemming from the 1951 Geneva Convention relating to the Status of Refugees . The obligations on the Serbian authorities to provide a CTD had been triggered by the expression of the State’s decision to grant the applicant refugee status and after the acquisition of lawful residence, to enable him to exercise his fundamental freedom of movement. However, his request could not be processed as the relevant provisions of the Asylum Act had not been completed with the enactment of subsidiary legislation by the competent Ministers of the Interior. No implementing regulations had been adopted on the matter, unlike in the case of the travel document for nationals.

Moreover, the legislative inaction had lasted for a considerable period of time. The authorities had not demonstrated that they had made any effort to act in accordance with the rule of law and take the appropriate regulatory and operational measures to implement the domestic law to provide the possibility for the applicant - and any individual in a similar situation - to access the procedure to apply for and obtain a CTD. Such a systemic failure had resulted in the entire notion of the effective right of refugees to leave Serbian territory being rendered illusory. The authorities had remained totally passive in the face of the applicant’s multiple requests for a CTD, even following notification by the Court of the present application in 2018. The applicant had thus been put in a state of uncertainty and pushed to eventually risk requesting a passport from the Syrian authorities.

In the circumstances, the Government could not justify the State’s inaction by relying on a lack of available resources or technical solutions, as the competent authorities should have overseen national budget allocations and ensured timely and adequate technical support in managing that task. The “economic wellbeing of the country” and related financial considerations were not even among the legitimate aims enlisted in Article 2 § 3 of Protocol No. 4 and therefore could not justify restrictions on the right to leave one’s country. This case was clearly distinguishable from other cases where the Court had examined the insufficiency of resources in the context of States’ prolonged confrontation with a sudden and quantitatively significant influx of refugees and disproportionate pressure on their asylum systems.

(iii) Conclusion – The interference with the applicant’s right to leave the country had not been “in accordance with law”. The State authorities, by their refusal to issue the applicant with a travel document for refugees for seven years due to the absence of appropriate regulations to implement the Asylum Act, had curtailed his right to leave Serbia freely to such an extent as to impair its very essence and deprive it of its effectiveness.

Conclusion: violation (unanimously).

Article 46: The State’s prolonged failure to implement its own domestic law allowing a travel document to be issued to recognised refugees and to persons eligible for subsidiary protection, and adopt regulations as a precondition for it, amounted to a structural problem. The respondent State had to take all appropriate statutory and operational measures to complete the pertinent legislative framework and implementing regulations to provide the effective right to leave the territory, and the possibility for any individual in a similar situation to that in which the applicant had found himself to access the procedure to apply for and obtain a travel document.

Article 41: EUR 3,500 in respect of non-pecuniary damage; claim in respect of pecuniary damage rejected.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

To access legal summaries in English or French click here . For non-official translations into other languages click here .