Notice of the decision of the European Court of Human Rights published in May 2024 against the Republic of Serbia
European Court for human rights (hereinafter: Court) is in the period from 1 to 31published 1 decision in May 2024 against the Republic of Serbia.
It's a decisionpassed by the Board.
And others. against Serbia (No. 37478/16, adopted on April 18, published on May 23, 2024)
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 requested the determination of a temporary measure
Circumstances of the case
The first applicanthe was a former administrative staff member of the Libyan diplomatic mission in the Republic of Serbia, which was established in 2010 by the regime of Muammar el-Gaddafi.After the end of the mandateIn 2014, he continued to reside temporarily and legally in the Republic of Serbia with his wife and three children, the other applicants, on the basis of private business and children's education.
After the request of the Security and Information Agency (hereinafter: "BIA"), the Ministry of Internal Affairs in February and March 2015 revoked the applicants' temporary residence permitsbecause they are representsli threat to "national security" and they were instructed to voluntarily leave the territory of the Republic of Serbia.The solutione cancellation of residence was considered at that timeo grounds for forced removal.
In the decision, there was a lesson about the legal remedy - filing an appealTo the Ministry of Internal Affairs or the diplomatic mission of the Republic of Serbia abroad. The applicants are notdeclared appeal.
The applicants then applied for asylum, citing an immediate risk to their lives, on various general and personal grounds, if they were to be deported to Libya.
The Asylum Office and the Asylum Commission rejected the applicants' claims for asylum because, among other things, they failed to prove that they were at risk of persecution if they were returned to Libya.
The applicants filed a lawsuit against the above-mentioned decisions to the Administrative Court.
The Administrative Court rejected the petitioners' request to suspend the execution of lower decisions until the final decision is made, as well as their requests for an oral hearing and judicial review, judging that the asylum decisions are legal.
The applicants then submitted a constitutional appeal to the Constitutional Court, complaining about the violation of the right to asylum, guaranteed by Article 57 of the Constitution, the principle of prohibition of expulsion and the lack of effective domestic remedies.
Also, the applicants submitted a request for the issuance of a temporary measure to the Court, which request was approved, and the Republic of Serbia was ordered not to deport them to Libya or another country during the duration of the proceedings before the Court.
After notification of the proceedings before the Court, the BIA conducted a reassessment of the security risks and concluded that the applicants were no longer considered to pose a threat to national security. Also, the Asylum Office overturned its previous decision and granted the applicants the subsidiary protection they sought, accepting all the applicants' earlier arguments regarding the risks they would personally face in the event of their forced removal to Libya.
Subsequently, the applicants withdrew their constitutional complaint regarding the intended expulsion, as well as the lack of effective domestic remedies in relation to the proceedings before the asylum authorities, but maintained their remaining complaint regarding the ineffective remedies in the administrative proceedings for their removal.
- Complaints of the applicants and proceedings before the Court
The applicants complained, based on Art. 2 and 3 of the Convention that deportation to Libya would expose them to a real risk of being killed, kidnapped or subjected to torture by the various military and paramilitary formations there. They further complained of the ineffectiveness of domestic remedies, stating (i) that they could not challenge their removal orders without any information about the national security case, (ii) that the available legal remedies had no suspensive effect, and (iii) that their asylum applications were rejected without any proper examination of the risks they faced.
The petition was submitted to the Court on June 30, 2016.
On July 1, 2016, the Court determined a temporary measure in this case and ordered the Republic of Serbia not to deport the applicants to Libya or another country until the end of the proceedings before the Court.
During the proceedings before the Court, the first applicant isDeceased.
- Decision of the Court
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 that the petition be rejected 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 the conclusion" that "for any other reason ... it is no longer justified to continue examining the application", 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 authorities attempted to forcibly remove the applicants to Libya after the initial removal orders, either before or while their asylum claims were still pending until the conclusion of the asylum procedure; the applicants submitted a request to the Court for the determination of a temporary measure only after the end of the asylum procedure; requests for asylum stopped 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 to, at least potentially, carry out a detailed assessment of their complaints under Art. 2 and 3 of the Convention, but the applicants 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.