21 Apr Refugees, asylum seekers and migrants unlawfully and arbitrarily detained on the basis of discriminatory criteria
The A 11 – Initiative for Economic and Social Rights notes with great concern that the current policy of the Republic of Serbia, which involves the deprivation of liberty of approximately 9,000 refugees, asylum seekers and migrants residing in asylum centers and reception centers is unconstitutional, illegal, arbitrary and discriminatory.
The A 11 initiative conducted a detailed analysis (available here, Serbian only) of the restrictions and derogations from the right to freedom and security of refugees, asylum seekers and migrants residing in reception and asylum centers.
In addition, the A 11 Initiative submitted the initiative for constitutional review of Article 3 of the Decree on Emergency Measures for its contravention of Art. 21, 22, 27, 29, para. 2 and 200, para. 1 and 2 of the Constitution of the Republic of Serbia and proposed to the Constitutional Court of Serbia to suspend the taking of actions on the basis of the disputed provisions of the Decree as a matter of urgency, or to temporarily repeal the disputed provisions.
The A 11 Initiative also filed a complaint to the Commissioner for Protection of Equality against the Government of the Republic of Serbia for the discriminatory legal regime that refugees, migrants and asylum seekers are subject to in Serbia.
At times when access to legal aid is extremely limited, when courts judge only in urgent and very limited cases, the lack of reaction from the Protector of Citizens of the Republic of Serbia is worrying, despite his repeated statements that he is closely monitoring the situation in all places of detention. This has not been true so far in the case of migrants and asylum seekers.
Unlawful and arbitrary deprivation of liberty of refugees, migrants and asylum seekers occurred on the basis of Art. 3, paragraphs 2 and 3 of the Decree on Emergency Measures. Under this provision, refugees, migrants and asylum seekers have been deprived of their liberty on the grounds of “preventing uncontrolled movement” and the fact that these persons may be carriers of the virus. Pursuant to this Regulation, they may leave asylum centers and reception centers only in exceptional and justified cases, when the Commissariat for Refugees and Migration issues them with a temporary license to leave the centers in which they are residing.
Bearing in mind that every person can be a carrier of the virus, and that there is no confirmed cases of the Corona virus among the population of refugees, migrants and asylum seekers, and that persons from the same population living in private accommodation are not subject to any special restrictions on rights, we emphasize that in this case it is discrimination on the basis of legal status, origin and place of residence.
They have been denied the right to an individualized and reasoned decision on the deprivation of liberty, which would be accompanied by a statement containing the reasons why they were detained at the asylum and reception centers and which would be issued to them by the competent authority. They have been denied the right of a judicial body to decide by way of an appeal on the legality and merits of their deprivation of liberty (habeas corpus), as well as the right to legal representation and other rights belonging to persons deprived of their liberty.
In addition to the clearly discriminatory regime they have been subjected to, it is particularly worrying that the collective deprivation of liberty of these categories of aliens produced further consequences in the form of inhuman and degrading conditions in certain asylum centers and reception centers where the overcrowding rate reached almost 450% (Principovac and Sombor), 275% (Kikinda), 254% (Adaševci) and 167% (Preševo).
The high rate of overcrowding at the time of the worldwide epidemic of the infectious disease COVID-19 only increases the risk of the spread of the disease and is contradictory to all of the World Health Organization’s recommendations, the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, as well all of the recommendations of epidemiologist and Serbia’s COVID-19 crisis prevention team. In such conditions, the lives and physical and mental integrity and health of people are at risk, not only of foreigners, but also of the employees of the Commissariat for Refugees and Migration, the members of the Ministry of Defence and the Ministry of Internal Affairs, who are in charge of safeguarding the asylum and reception centers.
For all these reasons, the A 11 Initiative calls for:
- The Government of the Republic of Serbia to urgently amend the disputed Art. 3 of the Decree on Emergency Measures and to enable refugees, migrants and asylum seekers to enjoy their rights without interruption;
- The Protector of Citizens and the National Mechanism for the Prevention of Torture to initiate without delay the procedure of assessing the legality and regularity of the operation of all asylum and reception centers, especially those where the overcrowding rate undoubtedly violates the absolute prohibition of abuse.
Finally, the A 11 Initiative points out that under the relevant provisions of domestic and international regulations, it is possible to ensure the protection of the most basic values of every democratic society – the right to life, the right to liberty and the absolute prohibition of abuse.