Serbian Border Protection Practices in the Case of Illegal Border Crossers

Abstract

The paper analyses the legal framework of the Republic of Serbia relevant to border control and access to the territory, as well as the practices of the national authorities in the case of persons crossing the border illegally. After a brief outline of the applicable international standards that obligate the Serbian authorities in cases of illegal entry, the author focuses on the examination of the most prominent provisions of three legislative acts: the Law on Border Control, the Law on Aliens, and the Law on Asylum and Temporary Protection. Although certain legislative solutions leave room for minor criticism, the normative framework is assessed as adequate and generally in line with Serbia’s international commitments and the European Union (EU) acquis. However, the part of the paper focusing on the practices of the competent Serbian authorities is much more critical. Certain border practices related to illegal entries have been considered problematic by both the EU and international human rights bodies and documented by reputable non-governmental organisations active in the field of asylum. Of the problematic practices presented, three have received judicial responses. The final part of the paper, therefore, examines the adequacy of the review of such practices by national courts. While some progress has been made in the practice of misdemeanour courts in applying the principle of non-punishment for illegal entry with respect to persons expressing their intention to seek asylum in Serbia, the decisions of the Constitutional Court relevant to illegal entry are assessed as partially satisfactory. While its response to pushbacks can be considered largely in line with applicable international standards, the Constitutional Court’s position on detention in the transit zone of Belgrade Airport has been criticised.