S.E. against Serbia
Presentation of the verdict in the caseS.E. against Serbia, number 61365/16
European Court of Human Rights (hereinafter: the Court)is On July 11, 2023, he announced the verdict in the caseS.E. against Serbiaby which he established a violation of freedom of movement from Article 2 of Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention).
The verdict was passed unanimouslyL o The evening from the7 judgea.
The case refers to the applicant's complaint that he could not travel outside of Serbia many years because his Syrian passport expired and the Serbian authorities refused his application for a refugee travel document. In particular, there was a legal gap with regard to this competent ministers of the interior did not pass regulations regulating content and design travel documents for refugees since 2008, despite the Asylum Act requiring it.
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COMPLAINTS OF THE APPLICANT AND THE PROCEDURE BEFORE THE COURT
The applicant (hereinafter: the applicant), Mr S.E. is a citizen of Syria, born in 1987 fromHe lived in Belgrade since 2014. until 2022. He received refugee status in 2015 when his request for asylum was approved, i.e. the right to refuge was recognized due to his political activities in the country of origin and the general state of insecurity caused by armed conflict and widespread violence.
The applicant complained about the violation of freedom of movement, because the domestic authorities rejected his request for the issuance of a travel document for refugees.
DECISION OF THE COURT
The court first examined the admissibility of the complaints presented due to the alleged violation of freedom of movement.
The argument of the defendant Republic of Serbia that the refusal of the applicant's request for the issuance of a travel document for refugees was not the result of some restrictive measure by the state authorities to prohibit him from leaving Serbia, was not accepted by the Court. Despite the fact that the applicant was granted such a right by the domestic law, the domestic authorities rejected his request for the issuance of a travel document for refugees because the corresponding by-law had not yet been adopted. In this respect, the Court found that the applicant could not leave the territory of the Republic of Serbia without a valid travel document, so that his complaints are due to the violation of freedom of movementratione materia compatible with the provisions of the Convention.
In the context of considering the merits of the allegations of violation of freedom of movement from Article 2 of Protocol 4 to the Convention, the Court paid particular attention to the arguments of the defendant Republic of Serbia that the applicant was all the time able to turn to the country of origin, Syria, in order to issue a new travel document and that way he legally left Serbian territory, which he eventually did in 2022. Namely, the Court did not accept such arguments of the defendant, appreciating that it would be contrary to the international obligations of the state and the principle of the rule of law if, as a result of the rejection of the request for the issuance of a travel document, the applicant would be directed to turn to his country of origin, which he left due to fear of persecution. The applicant's right to asylum was recognized within the Serbian legal system, that is, it was determined that his fear of persecution was well-founded, and that because of that fear, the applicant could not or did not want to use the protection of his country of origin. The fact that after seven years spent in a state of insecurity and a legal vacuum on Serbian territory, the applicant "reluctantly" decided to take the risk by asking the Syrian authorities to issue him a national travel document, cannot release the respondent state from its obligations based on Article 2 paragraph 2 of Protocol 4 to the Convention, nor can it affect the Court's conclusion that the Serbian authorities interfered with the applicant's right to freely leave its territory.
Furthermore, the Court noted that the legislator's inactivity lasted for quite a long time, and that the domestic authorities did not demonstrate that they had made any effort to act in accordance with the principle of the rule of law and take appropriate regulatory and operational measures to implement the domestic law in order to give the applicant, as and any other individual in a similar situation, enabled him to access the procedure of submitting a request for the issuance of a travel document for refugees. This kind of systemic failure led to the fact that the whole concept of the refugee's effective right to leave the Serbian territory became illusory. Domestic authorities remained passive even though they were faced with the applicant's requests for the issuance of a travel document for refugees, even after the European Court of Justice informed the respondent state about this application in 2018. The court considers that in this way the applicant was put in a state of uncertainty and forced to take a risk and demand a passport from the Syrian authorities.
FAIRLY SATISFACTION (Article 41 of the Convention)
The court obliged the Republic of Serbia to pay the applicant the sum of 3,500.00 euros as compensation for non-material damage, in dinar equivalent, within three months from the finality of the judgment.