Published on 14 October 2024
FOURTH SECTION
Application no. 42112/21
P.D.
against Serbia
lodged on 3 August 2021
communicated on 25 September 2024
SUBJECT MATTER OF THE CASE
The applicant is a national of Burundi who applied for asylum in Serbia and was accommodated in the Banja Koviljača Asylum Centre.
In the wake of the COVID-19 pandemic, the Serbian authorities declared a state of emergency, between 15 March and 6 May 2020, and introduced a set of extraordinary measures in order to prevent the spreading of the SARS-CoV-2 coronavirus. Between 16 March and 14 May 2020, the Serbian authorities imposed a temporary restriction on freedom of movement of refugees, asylum seekers and migrants accommodated in asylum and reception centres, save with the authorisation from the Commissioner for Refugees and Migrations for specific period of time and in exceptional circumstances.
On 17 September and 30 December 2020, the Constitutional Court refused the initiatives of several NGOs to open the proceedings for a review of constitutionality of, inter alia, the aforementioned measure.
Relying on Articles 5 and 14 of the Convention, and Article 2 of Protocol No. 4 the applicant complains that the measures in question, with which she was required to comply, amounted to a deprivation of liberty and/or restriction of her liberty of movement. She further complains that these restrictions were unlawful, arbitrary, and disproportionate and were discriminatory. Finally, she complains that the procedures for permission to seek leave were too vague and that she did not have sufficient information on the reasons for her confinement and access to judicial protection in any form, including the right to compensation.
QUESTIONS TO THE PARTIES
1. Did the Government’s derogation from the rights and freedoms enshrined in the Convention comply with the requirements of Article 15 §§ 1 and 3 of the Convention? In particular, was there a public emergency threatening the life of the nation and were the measures taken strictly required by the exigencies of the situation?
2. In view of all the circumstances, including – but not limited to – the nature of the contested measures and the Constitutional Court’s jurisprudence on the measures introduced in the context of prevention of the spreading of the SARS-CoV-2 virus (see the Constitutional Court’s decisions IUo – 45/2020 and IUo – 62/2020) has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?
3. Has there been a violation of the applicant’s right to liberty of movement, contrary to Article 2 of Protocol No. 4? In particular, was the restriction in accordance with the law and necessary, within the meaning of Article 2 §§ 3 and 4 of Protocol No. 4?
4. Alternatively, is Article 5 of the Convention applicable in the present case? In particular, was the applicant’s confinement in the asylum centre serious enough, in terms of its context, form, duration, level of intensity, manner of implementation and/or effect, to fall within the ambit of a deprivation of liberty within the meaning of Article 5 § 1 of the Convention (see, in the context of the general lockdown introduced to tackle the COVID-19 pandemic, Terheş v. Romania (dec.), no. 49933/20, §§ 39-47, 13 April 2021; see, mutatis mutandis, in the context of the confinement in transit zones and reception centres, Ilias and Ahmed v. Hungary [GC], no. 47287/15, §§ 211-251, 21 November 2019; see, also, for the general standards De Tommaso v. Italy [GC], no. 43395/09, §§ 80-89, 23 February 2017)? If so, what was the particular ground for the applicant’s deprivation of liberty and did it the fall within the paragraph 1 (e) of this provision?
5. Was the applicant’s confinement in breach of Article 5 § 1 of the Convention (see, mutatis mutandis, Enhorn v. Sweden, no. 56529/00, §§ 43-44, ECHR 2005‑I, and Plesó v. Hungary, no. 41242/08, §§ 54-69, 2 October 2012)? If the confinement was imposed “for the prevention of the spreading of infectious diseases”, have the authorities envisaged or considered any less severe measures in the present case?
6. Was the applicant’s confinement “in accordance with a procedure prescribed by law”, in particular concerning the requirement of “quality of law” and lack of “arbitrariness” (see, mutatis mutandis, Suso Musa v. Malta, no. 42337/12, §§ 94-107, 23 July 2013)?
7. Was the applicant informed promptly, in a language which she understood, of the reasons for her deprivation of liberty, as required by Article 5 § 2 of the Convention (see Khlaifia and Others v. Italy [GC], no. 16483/12, § 115, ECHR 2016 (extracts), and J.R. and Others v. Greece, no. 22696/16, §§ 121-124, 25 January 2018)?
8. Did the applicant have at her disposal an effective and accessible procedure by which she could challenge the lawfulness of her confinement, as required by Article 5 § 4 of the Convention (see, for example, Khlaifia and Others, cited above, §§ 128 and 130-131)?
9. Did the applicant have an effective and enforceable right to compensation for her detention, as required by Article 5 § 5 of the Convention (see, for example, Nolan and K. v. Russia, no. 2512/04, §§ 102 105, 12 February 2009)?
10. Has the applicant suffered discrimination in the enjoyment of her right to liberty and/or of her right of freedom of movement, contrary to Article 14 of the Convention, read in conjunction with Article 5 of the Convention and/or Article 2 of Protocol No. 4 to the Convention?
Lastly, the Government are invited to clarify and submit copies of the relevant legislation and practice concerning (a) the imposed measures, (b) the procedure for seeking permission to leave the reception and asylum centres at the relevant time, (c) how the exceptional and justifiable reasons for which such permission could be granted have been interpreted in practice by the competent authorities, and (d) on the right to appeal against negative decisions.