And others. against Serbia
On April 18, the European Court of Human Rights (hereinafter: the Court) made, and on May 23, 2024, announced the decision in the case And others. against Serbia, number 37478/16.
The decision was made by a three-member Board.
The case refers to the intended removal of a Libyan family from the territory of the Republic of Serbia, which was considered to be a threat to national security based on confidential information. Before submitting the application, the applicants asked the Court to determine a temporary measure, which request was accepted by the Court and the Government was ordered not to deport them to Libya while the proceedings before the Court are in progress.
In the petition, the applicants complained about the violation of their rights from Art. 2 and 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention), emphasizing that deportation to Libya would expose them to a real risk of being killed, kidnapped or subjected to torture by various military and paramilitary formations there, as well as violation of rights from Article 13 of the Convention, considering that the legal means available to them were ineffective.
The government stated that after being notified of the Court's interim measure, the BIA re-assessed the security risk and concluded that the applicants did not pose a threat to national security, and that the Asylum Office reversed its previous decision and granted the applicants the protection they sought. Finally, the Government pointed out that certain changes were made to the Law on Asylum and Temporary Protection and the Law on Foreigners in 2018. Therefore, the Government proposed to the Court to delete the petition from its list of cases, because the matter was resolved at the domestic level. Alternatively, the Government proposed to dismiss the petition due to non-exhaustion of domestic legal remedies in the administrative procedure.
After the Government's defense, the applicants withdrew their complaints under Art. 2 and 3 of the Convention, while they remained with the allegations of violation of rights from Article 13 of the Convention regarding ineffective legal remedies within the administrative procedure regarding their removal.
The Court accepted the Government's defense that the applicants are no longer exposed to the risk of being removed from Serbia, as well as the applicants' desire to withdraw part of the petition (for Articles 2 and 3 of the Convention), and assessed that respect for human rights defined in the Convention and protocols with The Convention does not require the continuation of the examination of the petition according to Article 37, paragraph 1, point b) of the Convention, and in this part, he removed it from his list of cases, and canceled the temporary measure.
In relation to the alleged violation of the right to an effective legal remedy, the Court considered whether "circumstances lead it to conclude" that "for any other reason ... it is no longer justified to continue examining the petition", and concluded that there is no need to continue with the examination of the case in question. This is for the following reasons: there is no indication that the competent state authoritiestriedand Yesforcibly removed applicants to Libya following initial removal orders, either before or while their asylum claims were still pending until the conclusion of asylum proceedings;submittersarerequest to the Court fordetermination of temporary measure filed only after the end of the asylum procedure; asylum requestsarestopped the potential deportation of the applicants and prevented the materialization of a potential violation of Article 13 at the relevant moment by putting the Serbian authorities in a situation where, at least potentially, they would carry out a detailed assessment of their complaints under Art. 2 and 3 of the Convention, but they are submitters withdrew part of the complaint under Article 13 in connection with the asylum procedure before the Constitutional Court.
The court assessed that the fact that the applicants withdrew part of the complaint before the Constitutional Court according to Article 13 of the Convention prevents it from further examining the scope and effectiveness of the legal procedure (in the administrative procedure according to the Law on General Administrative Procedure, which at the relevant time did not have a suspensive effect) in practice .
Therefore, the Court removed this part of the petition from its list of cases, based on Article 37, paragraph 1, item b) of the Convention.