O.H. and others against Serbia

On December 16, 2025, the European Court of Human Rights (hereinafter: the Court) issued a judgment in the case, and on February 3, 2026, it announcedO.H. and others against Serbia, number 57185/17.

The verdict was unanimousbroughtseven-member Chamber and became legally binding on May 3, 2026.

THE CIRCUMSTANCES CASES

The applicants, 17 of them, are citizens of Afghanistan, born between 1962 and 2015.

On February 3, 2017, between 02:00 a.m. and 03:00 a.m., the patrol of the Gradina border police station stopped a vehicle with Pancevo registration plates, in which, among other persons, the applicants were also present. All persons were transported to the premises of the Regional Center of the Station Police towards Bulgaria - Gradina Border Police Station. They were deprived of their freedom on suspicion of having committed the offense of illegally crossing the border

Upon receiving the applicants at the Regional Center of the Border Police, the collection of their personal data began. The police issued detention orders against the first, second, third, seventh, eighth, ninth, tenth, eleventh, fourteenth and fifteenth applicants. Decisions on their retention and forms were in the Serbian Cyrillic script. Both documents indicated that an employee of the Danish Refugee Council had translated the contents into English, thus informing the applicants of their substance.

On the same day, February 3, 2017, the applicants were transported to the Misdemeanor Court in Pirot because a misdemeanor proceeding was initiated against them by the Regional Center of the Border Police towards Bulgaria. The applicants were in that court from 14:30 to 22:30. The detention decisions stated that police detention began at 2:30 p.m. The misdemeanor proceedings were conducted with the help of two interpreters. First, the applicants' statements were translated from Pashto or Farsi into English, and then from English into Serbian. The acting judge ruled on the suspension of misdemeanor proceedings initiated against the applicants because they expressed their intention to request asylum in the Republic of Serbia as refugees from the war zone of Afghanistan.

After finishing the misdemeanor procedure and expressing their intention to request asylum in the Republic of Serbia, the applicants were sent to the Asylum Center in Krnjača. Since the capacities of this center were full, the applicants were sent to the Divljan Reception Center near Bela Palanka.

Instead of going to the Reception Center in Divljana, the applicants were transported to the Bulgarian border in a police van, where the police officers took away all the documents previously issued to them in Serbia, and then forced them to cross into Bulgaria. According to the applicants, they spent the night in the forest at a temperature of -2°C.

The following morning, the applicants headed for the village of Kotelevo, where they were arrested by the Bulgarian police, who came after a call from the locals. The identity of the applicants was checked through the same database where their photographs and fingerprints of the applicants were located, which is also used by the police of the Republic of Serbia - Afis. After the identity check, all the applicants were sent to the Harmanli Reception Center except for the seventh applicant who was sent to the Bosmanci Reception Center.

At the time of submitting the petition, the first, second, eighth, ninth, tenth and eleventh applicants were staying in the Divljana Reception Center, the third, fourth, fifth and sixth applicants were in the Voenna Rampa Reception Center, and the other applicants were in the Krnjač Reception Center.

On March 3, 2017, the Belgrade Center for Human Rights submitted a constitutional complaint to the Constitutional Court on behalf of the petitioners due to the violation of rights from Art. 25 (inviolability of physical and psychological integrity), 27 (right to freedom and security) and 28 (treatment of a person deprived of liberty), Article 29, paragraph 1 (additional rights in case of deprivation of liberty without a court decision), Article 36, paragraph 2 (right to legal remedy) and Article 39, paragraph 3 (freedom of movement) of the Constitution of the Republic of Serbia.

By decisionUž-1823/2017 on December 29, 2020, the constitutional appeal of the applicants was adopted in the part that refers to the violation of rights from Article 27, paragraph 3 in connection with Article 29, paragraph 1 of the Constitution of the Republic of Serbia, as well as the violation from Article 39, paragraph 3 in connection with Article 25 of the Constitution. In the part that refers to the violation from Art. 25 and 28 of the Constitution, the constitutional appeal was dismissed. The applicants were awarded compensation for non-material damage in the amount of 1,000 euros each, equivalent in dinars.

At the time of the Court's decision, the second applicant was in Germany, and the seventh in France, where they were enjoying protection as refugees.

COMPLAINTS APPLICANTS AND THE PROCEDURE BEFORE THE COURT

The applicants submitted the petition to the Court on August 1, 2017.

Referring to Article 4 of Protocol No. 4 (prohibition of collective expulsion of foreigners) to the Convention, the applicants complained that the domestic authorities forced them to leave Serbia without conducting an individual assessment of their personal circumstances. They also complained under Article 3 (prohibition of inhuman or degrading treatment), Article 5 (right to liberty and security) and Article 13 (right to an effective remedy) of the Convention.

THE DECISION THE COURT

On September 21, 2021, the representative of the applicants informed the Court that he is in regular contact with the second and seventh applicants, and that he either has no contact with the other applicants or they do not want to continue further proceedings on the petitions.

The court noted that the applicants, except for the second and seventh, do not want to continue the proceedings on the petitions, and that the issues raised by this petition can be adequately resolved by examining the complaints of the petitioners who want to continue the proceedings.

Therefore, the Court decided to remove from the list of cases the petitions of all applicants except the second and seventh, in accordance with the provisions of Article 37, paragraph 1 (a) of the Convention.

Furthermore, the Court noted that in its decision of December 29, 2020, the Constitutional Court determined that the second and seventh applicants were violated several rights guaranteed by the Constitution and determined monetary compensation for non-material damage that was paid.

The Court interpreted the decision of the Constitutional Court in such a way that violations of rights from Article 3 and Article 5, Paragraph 4 of the Convention were recognized, but that the awarded amount of damages was significantly lower than the Court awards in comparable cases. For this reason, as well as due to the seriousness of the injuries, the Court assessed that the applicants did not lose their "victim status" under the Convention.

• Article 4 of Protocol No. 4 to the Convention

The applicants claimed that they were subjected to collective expulsion and that the Serbian authorities forced them to leave the country without an individual assessment of their personal circumstances. The government claimed that the Constitutional Court, in its decision of December 29, 2020, recognized the violation of the right from Article 39, Paragraph 3 of the Constitution, which corresponds to the right from Article 4 of Protocol No. 4 to the Convention, and that the applicants were paid appropriate damages.

In order for expulsion to be characterized as "collective", there must be an absence of "reasonable and objective examination of the specific case of each individual alien from the group", unless the conduct of the applicant contributed to such a decision.

The court is in judgmentN.D. and N.T. against Spain ([VV], no. 8675/15 and 8697/15, para. 201, 209-11, dated February 13, 2020) set a two-step test in situations of collective expulsion during unauthorized border crossing. First, it is necessary for the state to ensure genuine and effective access to the means of legal entry, especially border procedures, in order to enable all persons threatened with persecution to submit a request for protection that will be processed in accordance with international documents and the Convention. Second, it is necessary that the applicant has a convincing reason why he did not use those mechanisms, and that the state is responsible for that reason. 

The Court noted that although the applicants entered the country illegally, they were not deported immediately or within hours of their attempted entry. Instead, they were brought before a court that recognized their status as asylum seekers, ordered the authorities to provide them with accommodation and issued certificates of intent to seek asylum, which serve as temporary residence permits. The subsequent expulsion of the applicants had nothing to do with the initial unauthorized entry into the country.

Following the above, the Court isdetermined the injury prohibition of collective expulsion of foreigners from Article 4 of Protocol No. 4 to the Convention.

• Article 3 of the Convention

Material aspect

The applicants claimed that they were subjected to inhuman and degrading treatment due to the conditions they were subjected to during their detention in the Gradina Police Station and in the Misdemeanor Court in Pirot.

They further complained that they were transported from the police station to the court in Pirot, and then to the Bulgarian border, in an overcrowded van.

Finally, they complained about the circumstances surrounding their deportation to Bulgaria.

• Detention at Gradina Police Station

The applicants claimed that they were kept in inhumane conditions at the Gradina Police Station, that the room was in the basement, that it was dilapidated, with an area of ​​25 m2, and that they shared with a total of twenty-three people. The room was cold, poorly ventilated, inadequately lit, humid, and the temperatures were low (-2 to 6 °C). Finally, the applicants claimed that men, women and children were together in the same room, without chairs or beds, and were forced to sleep on the floor, which was soiled with urine and faeces, using dirty blankets. The applicants allegedly did not have access to a toilet.

The government did not dispute the conditions at the police station, but cited extenuating circumstances such as a significant influx of migrants, limited state funding for renovating facilities, short periods of detention and provision of basic assistance such as food and clothing.

As for capacity overload in the Gradina Police Station, the Court is in its judgmentMuršić v. Croatia([VV], No. 7334/13, para. 136-41, dated October 20, 2016) found that if the personal space of a detainee in a prison where several people are housed falls below 3 m2 of the floor area, the lack of personal space creates a strong but rebuttable presumption of a violation of Article 3 of the Convention. That presumption can be rebutted by other factors such as the duration of deprivation of liberty, freedom of movement and activity outside the cells, general decency of the conditions.

The Court noted that, in the specific case, the personal space was 1 m2, and it did not meet the Court's standards. He found that the room was dirty, that there was no toilet, access to drinking water, adequate heating, and that there were no beds or chairs. However, the Court could not confirm that the room was not adequately ventilated, because in the report of the Protector of Citizens dated February 9, 2017, it was determined that the room had a window, and there were no allegations about the lack of light in the room in question. 

Furthermore, the Court established that the applicants were held for ten hours in order to establish their identity and bring them before the court, which, taking into account the reason for their detention, is not a long period of time.

Finally, the Court noted that from the aforementioned report of the Protector of Citizens, it cannot be determined that the premises were soiled with urine and feces, and that there were no complaints to the Protector of Citizens regarding access to the toilet and lack of privacy when defecating. Given the groundlessness of the complaints regarding the lack of lighting and ventilation of the premises, and bearing in mind that the applicants did not complain about the lack of privacy when defecating, the Court deemed the complaints regarding access to the toilet unsubstantiated.

Considering that the applicants were exposed to inadequate conditions of detention for a short period of time, the Court found that the duration and impact of exposure to those conditions were not such as to reach the threshold of seriousness required for the application of Article 3 of the Convention.

In this regard,The court assessed that there was no violation of Article 3 of the Convention in this respect.

• Deprivation of liberty in the Misdemeanor Court in Pirot

The applicants claimed that in the Misdemeanor Court in Pirot they had to sit and sleep on the floor during the deprivation of liberty and attached photographs to that effect. On the other hand, the Government claimed that it is absolutely impossible to talk about conditions that violate Article 3 of the Convention.

The court noted that the precise conditions to which the applicants were exposed from the suspension of the misdemeanor proceedings to the placement in the van were not clear. The court, taking into account the material presented, determined that they were deprived of their liberty on February 3, 2017, in the period from 14:00 or 14:30 to 22:30.

As for the conditions in the corridor of the misdemeanor court, the Court accepted that the applicants did not have enough beds and benches and that they were forced to sit on the floor. However, they were not forced to spend the night in court, did not complain about unsanitary conditions, denied access to sanitary facilities or any other material disadvantage. The court took the position that the period of eight hours for conducting proceedings against eighteen persons is not excessive.

Therefore, the Court assessed that the conditions in the Misdemeanor Court in Pirot did not reach the necessary level of seriousness to bring the complaint under Article 3 of the Convention. Therefore, the Courtrejects this complaint as clearly unfoundedin accordance with the provisions of Article 35, para. 3 (a) and 4 of the Convention.

• Conditions of transfer of applicants to and from the Misdemeanor Court in Pirot

The applicants claimed that the conditions of transportation to the court in Pirot, and then to the Bulgarian border, were incompatible with Article 3 of the Convention. They stated that they were imprisoned twice in one van with 23 people and that the trip lasted 1 hour and 30 minutes.

The court accepted as established the statements of the applicants about the length of the journey from the Misdemeanor Court in Pirot to the Bulgarian border, and due to the proximity of the locations, determined that the journey from the Gradina Police Station to the Misdemeanor Court in Pirot also took 1 hour and 30 minutes. The dimensions of the van were not determined, so the Court could not estimate the area of ​​personal space in it.

Regardless, the total duration of the transfer did not last three hours, so even assuming the cramped conditions, the difficulties suffered by the applicants did not reach a sufficient level of seriousness to bring the complaint under Article 3 of the Convention.

Therefore, the Court dismissed this complaintrejectedas obviously unfoundedin accordance with the provisions of Article 35, para. 3 (a) and 4 of the Convention.

• The manner of removal of the applicants from Serbia and the circumstances in connection therewith

The applicants claimed that their removal from Serbia represented inhuman and degrading treatment in its own way. They claimed that the expulsion was carried out during the night, at low temperatures, with excessive physical force and that they were expelled into the forest.

The court noted that in its decision of December 29, 2020, the Constitutional Court found that the applicants were expelled on the cold night of February 4, 2017, and that this constituted inhumane treatment. The Court saw no reason to deviate from the findings of the Constitutional Court, considering that due to the insufficient compensation for damages, the applicants still enjoy the status of victims under the Convention.

Therefore, the Court found thatthere is a violation of Article 3 of the Convention in connection with the method of expelling the applicants from Serbia to Bulgaria.

            Process aspect

The applicants claimed that they were deported to Bulgaria without assessing the consequences of their deportation, contrary to the principle of non-refoulement or refoulement (refoulement). The applicants claimed that no assessment of the risk of ill-treatment was carried out, that deficiencies in access to asylum procedures and material conditions in asylum centers in Bulgaria were not taken into account.

The government referred to the findings of the Constitutional Court, which determined that the expulsion constituted inhumane treatment. However, the Court found that the Constitutional Court found a violation of Article 25 of the Constitution due to the manner of expelling the applicants in terms of specific, physical acts of removal and the circumstances related to it, and not due to the absence of an assessment of the consequences of removing the applicants for their rights from Article 3 of the Convention. Therefore, the Court concluded that the domestic authorities did not recognize the violation of Article 3 of the Convention in this respect.

The court found that the Serbian authorities deported the applicants to Bulgaria. The court noted that the applicants expressed their desire to apply for asylum, that the misdemeanor court recognized them as asylum seekers and handed them certificates of intent to seek asylum. The court also noted that the removal of the applicants from Serbia had nothing to do with the consideration of asylum requests and that the state authorities expelled them without considering their requests on the merits.

The government did not claim that Bulgaria is a safe third country. There was nothing in the case before the Court to suggest that the expulsion was based on any assessment of access to the asylum procedure in Bulgaria and the adequacy of that procedure, despite the applicants' explicit claim that they did not consider Bulgaria a safe country. The secret method of expelling the applicants deprived the applicants of any opportunity to substantiate their claims before the body responsible for asylum applications.

Consequently, the Court concluded that the state did not fulfill the procedural obligation according to Article 3 of the Conventionto examine whether the applicants would have adequate access to the asylum procedure in Bulgaria. Consequently, there was a violation of Article 3 of the Convention in its procedural part.

• Article 5 of the Convention

• 5. paragraph 1.

The applicants complained that their detention was illegal and arbitrary; that they were not informed without delay about the reasons for their arrest and the charges against them in a language they understand and that they were not able to challenge the legality of the decision before the competent court.

They claimed that they were deprived of their liberty from 00:15 on February 3, 2017 to February 4, 2017. tobetween 02:30 and 03:00.

The applicants were arrested on February 3, 2017 at 12:15 a.m., and according to the decisions on detention issued by the police, the detention lasted until February 3, 2017 at 2:30 p.m. The subsequent period of detention until the suspension of the misdemeanor proceedings was not covered by any detention decision.

The court noted that during the suspension of the proceedings, the officers of the Gradina Police Station were ordered to provide accommodation to the applicants through the Commissariat for Refugees and Migration, and that they were then handed over to their jurisdiction. When they got out of the van, the applicants became aware that they would not be provided with that accommodation. The court accepted the claim of the applicants that they were deprived of their liberty from the time of their arrest (February 3, 2017 at 00:15) until the time of their expulsion (February 4, 2017 between 02:30 and 03:00).

Although the Constitutional Court found in its aforementioned decision that the police failed to provide the applicants with a lawyer, which deprived them of the opportunity to challenge the legality of their deprivation of liberty, the Court assessed that the applicants still have "victim status" under the Convention.

The court noted that the Government claimed that the applicants were deprived of their liberty due to illegal crossing of the border, identification and bringing to court. However, the deprivation of liberty after the end of the misdemeanor proceedings was not related to the reasons presented by the Government, nor did it refer to any provisions of domestic law for that period.

After the end of the misdemeanor proceedings, the applicants were deprived of their liberty while they waited for the certificates of their expressed intention to request asylum to be handed to them. Then, under the false impression created by the authorities that the police would take them to the reception center for asylum seekers, the applicants were taken to the border and deported to Bulgaria.

Based on the above, the court concluded that the deprivation of liberty in the period from February 3, 2017, from 10:30 p.m. to February 4, 2017, between 02:30 and 03:00 a.m., was illegal and arbitrary, because it had no basis in domestic law, and the applicants were deprived of their liberty in a misleading manner, and thatthere was a violation of Article 5, paragraph 1 of the Convention in the period from February 3, 2017, from 10:30 p.m. to February 4, 2017, between 02:30 and 03:00 a.m.

• 5th paragraph. 2.

It is undisputed between the parties that the applicants were served with detention orders stating the reasons for the deprivation of liberty and the charges against them. What was disputed was whether the applicants could understand those solutions.

The court noted that the decision on detention and the form on the rights of detained persons were drawn up in Serbian Cyrillic and that their content was translated into English for the applicants, which informed the applicants of their essence.

However, the Court was not convinced by the applicants' claims that the Farsi translator arrived later and was not at the police station at the time the decision and form were served.

The Court accepted the Government's claim that a Farsi translator was present at the police station in the early morning hours of February 3, 2017, taking into account that the applicants stated before the Constitutional Court that the translator was present only to establish their identity, and that he did not translate the detention orders and forms into Farsi. The court cannot believe the claim that the authorities would hire a translator only for the purpose of establishing the identity of the applicants, given the impossibility of effective communication with the applicants.

Accordingly, the court determined thatthere was no violation of Article 5, paragraph 2 of the Convention.

• 5th paragraph. 4.

The applicants claimed that they were prevented from contesting the detention decision before the competent judicial body.

Given that the Constitutional Court, in its aforementioned decision of December 29, 2020, determined that the failure of the police to hire a lawyer deprived the applicants of the opportunity to contest the legality of their detention, and that the applicants, according to the Court's position, still have the status of victims,The court found that there was a violation of Article 5, paragraph 4 of the Convention.

• Article 13 of the Convention in connection with Article 3 of the Convention and Article 4 of Protocol No. 4 to the Convention

The applicants complained that they did not have an effective legal remedy to contest their removal from Serbia.

The court took the position that it examined all the main legal issues, and that there is no need to examine the admissibility and merits of these complaints.

FAIRLY SATISFACTION (Article 41 of the Convention)

The court obliged the Republic of Serbia to pay the second and seventh applicants an amount of EUR 5,000 each as compensation for non-material damages.