The name of the appellant in this Decision on a Constitutional Appeal was deleted by the Belgrade Centre
of Human Rights. The Constitutional Court had decided to publish the integral version of its Decision,
including the personal data of the appellant, in the Official Gazette of the Republic of Serbia, which
constitutes a violation of the principle of confidentiality in the Asylum Act.
Pursuant to Article 167(4) in conjunction with Article 170 of the Constitution of the Republic of
Serbia, the Constitutional Court (Small Chamber), sitting as a Chamber composed of Katarina
Manojlović Andrić, president, and Dr. Olivera Vučić and LLM Milan Marković, judges, having
deliberated the constitutional appeal filed by .... from K, the Islamic Republic of Afghanistan,
currently residing in the Asylum Centre in B. (hereinafter the appellant), delivers the following
DECISION
To dismiss the constitutional appeal the appellant filed against Decision No. 03/9-26-2656/11 of
28 May 2012 rendered by the Ministry of Internal Affairs – Police Directorate – Border Police
Administration – Aliens Department – Asylum Section.
Reasoning
1. On 28 June 2012, the appellant …., from Kandahar, the Islamic Republic of Afghanistan,
currently residing in the B. Asylum Centre, filed a constitutional appeal against Decision No.
03/9-26-2656/11 of 28 May 2012 rendered by the Ministry of Internal Affairs – Police
Directorate – Border Police Administration – Aliens Department – Asylum Section via its legal
representative, the Belgrade Centre for Human Rights, claiming violations of his rights to
judicial protection, a legal remedy and the right to asylum enshrined in Articles 22, 36(2) and 57
of the Constitution of the Republic of Serbia. The appellant also claimed violations of his rights
to prohibition of torture and an effective legal remedy enshrined in Articles 3 and 13 of the
European Convention for the Protection of Human Rights and Fundamental Freedoms
(hereinafter: Convention), and of his right to prohibition of expulsion or return in Article 33 of
the Convention Relating to the Status of Refugees.
The appellant claimed that the competent first-instance authority dismissed the appellant’s
asylum application, after which the appellant’s representatives appealed the Decision with the
second-instance authority, which did not exist in practice at the time, exclusively with the goal of
postponing the effectiveness of the first-instance Decision and, thus, the appellant’s obligation to
leave the territory of the Republic of Serbia.
Although no decision had been made on the appellant’s appeal of the impugned first-instance
Decision at the time the constitutional appeal was filed, the appellant was of the view that the
requirement regarding the exhaustion of legal remedies in Article 82 of the Constitutional Court
Act had been fulfilled. He corroborated that assertion by stating that the legal remedies available
in the asylum procedure in the Republic of Serbia could not be considered adequate and efficient
in light of the well-established case law of the European Court of Human Rights (hereinafter:
European Court), which he cited in detail. The appellant, above all, noted that the first-instance
authority reviewing his application had not reviewed the merits of his application during its
review, i.e. whether his fears of persecution to his country of origin were well-founded and that it
had automatically applied the concept of a safe third country, although the states the appellant
had passed through on route to the Republic of Serbia could not be considered safe third
countries under objective criteria. The essence of the right to asylum was thus invalidated,
demonstrating that it was an illusory right in the Republic of Serbia. He further claimed that even
if the new members of the second-instance authority were appointed, the appeal of the impugned
first-instance Decision would not constitute an effective legal remedy because the secondinstance authority had so far rejected all the appeals filed by asylum seekers, which led to the
conclusion that the appellant’s appeal did not stand a reasonable prospect of success either. As
far as a claim initiating an administrative dispute was concerned, the appellant was of the view
that the legal protection afforded by the Administrative Court was not effective either, as
corroborated by its hitherto case law demonstrating that it had not reviewed the claims on the
merits. The appellant submitted the judgments of that Court rejecting the asylum seekers’ claims.
2. Pursuant to Article 170 of the Constitution of the Republic of Serbia, constitutional appeals
may be filed against individual enactments or actions of state authorities or organisations vested
with public powers which violate or deny human or minority rights and freedoms enshrined in
the Constitution upon the exhaustion of other legal remedies for their protection or in the absence
of such remedies. In the meaning of Article 175(3) of the Constitution, constitutional appeal
proceedings shall be regulated by the law.
Article 82(1) of the Constitutional Court Act (Official Gazette of the Republic of Serbia Nos.
109/07 and 99/11) is identical in content to the provision in Article 170 of the Constitution.
3. During its review of the instant case, the Constitutional Court established the following facts
and circumstances of relevance to a decision on this constitutional legal matter:
….., herein the appellant, filed an application for asylum in the Republic of Serbia to the
competent unit of the Ministry of Internal Affairs on 29 February 2012.
The Ministry of Internal Affairs – Police Directorate – Border Police Administration – Aliens
Department – Asylum Section held an oral hearing within its review of the appellant’s asylum
application on 24 May 2012. The records of the oral hearing indicate: that the appellant had been
notified of his rights in the procedure, that he had been represented by his representative
providing expert legal aid within the non-government organisation, the Belgrade Centre for
Human Rights, that he had made a statement, that the records had been read to him and that he
had not had any objections to them. According to the records, the appellant had, inter alia, stated
the following during the oral hearing: that he had fled Afghanistan after he was hospitalized
following an assault on him by the Talibans, that he had passed through the Islamic Republic of
Iran, the Republic of Turkey, the Republic of Greece and the Former Yugoslav Republic of
Macedonia (hereinafter: FYROM) on route to Serbia, but that he had not applied for asylum in
any of those countries.
In its impugned Decision No. 03/9-26-2656/11 of 28 May 2012, the first-instance authority
dismissed the appellant’s application for asylum in the Republic of Serbia and ordered him to
leave the Republic of Serbia within three days from the day the Decision became final, unless he
had other grounds for residence. The first-instance authority was of the view that the asylum
application should be dismissed pursuant to Article 33(1(6)) of the Asylum Act, given that the
appellant had come to Serbia via the Republic of Turkey, the Republic of Greece and the
FYROM, which were designated as “safe third countries” in the Decision on Lists of Safe
Countries of Origin and Safe Third Countries and that he had not experienced any problems
whilst in those states or proven during the procedure that those countries were not safe for him.
The appellant filed an appeal of the impugned first-instance Decision with the competent secondinstance authority on 12 June 2012.
4. The Constitutional Court first observes that it follows from Article 170 of the Constitution,
which introduces the constitutional appeal as a special and extraordinary legal remedy for the
protection of constitutionally guaranteed rights and freedoms, that the prescribed legal remedies
for the protection of a person’s rights must be exhausted before s/he may file a constitutional
appeal.
Under Article 18(3) of the Constitution, the provisions on human and minority rights shall be
interpreted to the benefit of promoting values of a democratic society, pursuant to valid
international standards in human and minority rights, as well as the practice of international
institutions which supervise their implementation.
Under Article 3 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms, no one shall be subjected to torture or to inhuman or degrading treatment or
punishment. The Constitutional Court concludes that Article 3 of the Convention does not differ in
content from Article 25(2) of the Constitution, under which no one shall be subjected to torture, inhuman
or degrading treatment or punishment or to medical and other experiments without their free consent.
Given that the Constitutional Court has not dealt with claims of violations of Article 3 of the
Convention in its hitherto reviews of constitutional appeals before the ordinary legal remedies in
the asylum procedures had been exhausted and departing from the fact that, pursuant to Article
35(1) of the Convention, an application to the European Court of Human Rights, like a
constitutional appeal, is subsidiary in character, the Constitutional Court was of the view that, in
this specific case, it needed to review the European Court’s case law on asylum in light of the
rule on the prior exhaustion of domestic legal remedies.
The Constitutional Court established that the European Court of Human Rights has established
general exceptions to the rule on the exhaustion of domestic legal remedies in its hitherto case
law. That Court recognised that the rule of exhaustion was neither absolute nor capable of being applied
automatically and that it was essential to have regard to the particular circumstances of each individual
case in reviewing whether it has been observed (judgment in the case of Akdivar and Others v.
Turkey of 16 September 1996, App. No. 21893/93, paragraph 69). The European Court held that
the rule on the exhaustion of domestic legal remedies in Article 35(1) of the Convention obliged
those who wanted to file applications with that Court to first exhaust the legal remedies that were
normally available in the domestic legal order and sufficient to enable them to eliminate the
violations they claim. The existence of such remedies must be sufficiently certain not only in
theory but also in practice, failing which they will lack the requisite accessibility and
effectiveness; it falls to the respondent State to establish that these various conditions are
satisfied (judgment in the case of Vernillo v. France of 20 February 1991, App. No. 11889/85,
paragraph 27). Article 35(1) of the Convention requires the submission of a legal remedy to a
competent domestic authority under the conditions and in the manner prescribed by domestic law
and that it includes at least the essential grounds of the claim of a violation, but it does not
require the exhaustion of inadequate and inefficient legal remedies.
Given that the rule on the exhaustion of domestic legal remedies is applied in the context of a
human rights protection mechanism, it must be interpreted with some degree of flexibility and
without excessive formalism (judgment in the case of Cardot v. France of 19 March 1991, App.
No 11069/84, paragraph 34). By realistically assessing the domestic legal remedies in the general
legal and political contexts they are functioning in, the European Court took the view that there
may be special circumstances which absolve the applicant from the obligation to exhaust the
domestic remedies at his disposal and allow him or her to directly address the Convention bodies
(see Akdivar cited above, paragraph 67). These “special circumstances” exist when the practices
of the domestic authorities provide grounds to claim that the applicant’s apprehensions arising
from the absence of effective legal remedies in domestic law are “objectively justified”
(judgment in the case of Riad and Idiab v. Belgium of 24 January 2008, App. No. 29787/03,
paragraph 62). The existence of a mere doubt that a specific legal remedy will succeed obviously
does not suffice to deviate from the rule on the exhaustion of domestic legal remedies (see the
judgment in the case of Van Oosterwijck v. Belgium of 6 November 1980, App. No. 7654/76,
paragraph 37).
According to the European Court’s well-established case law, the rule on the exhaustion of
domestic legal remedies does not apply in the event the applicant, be it a state or an individual,
claims the incompatibility of the Convention with the practice of the administrative authorities,
which, as such, renders any procedure before them futile and inefficient. Such a practice entails
the recurrence of actions in breach of the Convention and their tolerance by the state authorities
(judgment in the case of Ireland v. the United Kingdom of 18 January 1978, App. No. 5310/71,
paragraph 159). In order to deviate from the rule on the exhaustion of legal remedies, the
applicant must prove “beyond reasonable doubt” the existence of such an administrative practice
(judgment in the case of Cyprus v. Turkey of 10 May 2001, App. No. 25781/94, paragraph 115).
5. The European Court allowed for exceptions to this rule in asylum matters, in cases in which
the applicants, asylum seekers, claimed that they might be subjected to torture or inhuman or
degrading treatment, that is, treatment contrary to the guarantees in Article 3 of the Convention if
they were removed to their country of origin or a third country. The Court further observed that
there was a distribution of the burden of proof in the area of the exhaustion of legal remedies. It
is incumbent on the respondent Government claiming non-exhaustion to satisfy the Court that
the remedy was an effective one available in theory and in practice at the relevant time, that is to
say, that it was accessible, was one which was capable of providing redress in respect of the
aggrieved individuals' complaints and offered reasonable prospects of success. However, once
this burden of proof has been satisfied it falls to the applicant Government to establish that the
remedy advanced by the respondent Government was in fact exhausted or was for some reason
inadequate and ineffective in the particular circumstances of the case, or that there existed
special circumstances absolving the persons concerned from the requirement of exhausting that
remedy (see Akdivar cited above, paragraph 68). Bearing in mind that expelled asylum seekers
may be exposed to the risk of torture and inhuman treatment and, thus, irreparable damages, the
European Court has in its hitherto case law defined the criteria which asylum-related legal
remedies must satisfy to be considered effective. In that regard, the European Court considered it
important to point out that an applicant's complaint alleging that his or her extradition would
have consequences contrary to Article 3 of the Convention “must imperatively be subject to
close scrutiny by a “national authority”” (judgment in the case of Shamayev and Others v.
Georgia and Russia of 12 April 2005, App. No. 36378/02, paragraph 448). Departing from that
principle, the European Court assessed that the concept of an effective legal remedy in Article 13
in conjunction with Article 3 of the Convention required of the authorities to enable the
“independent and rigorous” scrutiny of the complaints of any individual in a situation in which
there are reasonable grounds to believe that he or she will face treatment in contravention of
Article 3 of the Convention, and, on the other hand, have “enforcement of the impugned measure
suspended” (see Shamayev cited above, paragraph 460.). Another relevant criterion to be
fulfilled is the prompt response by the authorities in investigating allegations of treatment
contrary to Article 3 of the Convention (judgment in the case of Bati and Others v. Turkey of 3
June 2004, App. Nos. 33097/96 and 57834/00, paragraph 136).
6. In the instant case, the Constitutional Court abided by and applied the first above mentioned
criterion defined in the European Court’s case law regarding the careful and rigorous scrutiny of
the asylum seeker’s allegations of the risk of a violation of Article 3 of the Convention in case he
was removed to a third state and started by reviewing the allegations on which the appellant
based his claim of the ineffectiveness of the legal remedies in the asylum procedure in the
Republic of Serbia.
First of all, the appellant stated that he had not had access to an appeal of the impugned firstinstance decision “in practice” because the members of the Asylum Commission, the secondinstance authority charged with reviewing such appeals, had not been appointed at the time.
Assessing this claim in the constitutional appeal, the Constitutional Court established that the
appellant filed an appeal of the impugned first-instance decision on 12 June 2012 and that the
members of the second-instance authority were appointed by a Government decision of 20
September 2012. The conditions for the review of the appellant’s appeal by the second-instance
authority were fulfilled three months after it was filed, wherefore the appellant cannot
successfully dispute the effectiveness of the appeal in this specific administrative procedure.
Second, the appellant claimed that the competent administrative authorities and the court ruling
on administrative disputes automatically applied the Government Decision on the Lists of Safe
Countries of Origin and Safe Third Countries (Official Gazette of the Republic of Serbia No.
67/09), which, according to official reports by international organisations and decisions of the
European Court, no longer reflects the actual situation in those states. To corroborate his claim,
the appellant submitted together with the constitutional appeal the Administrative Court’s
judgments in the following cases: U. 3815/11 of 7 July 2011, U. 3554/11 of 6 October 2011, U.
10336/11 of 10 November 2011, U. 5913/11 of 10 November 2011, U. 11129/11 of 1 December
2011, U. 3555/11 of 14 December 2011, U. 4132/11 of 2 February 2012, U. 10337/11 of 15
March 2012 and U. 10902/11 of 29 March 2012, rejecting the claims against the final Asylum
Commission decisions which rejected as ill-founded their appeals of the first-instance decisions
of the Ministry of Internal Affairs Asylum Section. These first-instance decisions dismissed the
claimants’ applications for asylum in the Republic of Serbia and ordered them to leave the
territory of the Republic of Serbia within three days from the day the decisions became final
unless they had other grounds for residence. Furthermore, in his subsequent submission
supplementing the constitutional appeal of 6 December 2012, the appellant attached the
“Observations on the Situation of Asylum-Seekers and Beneficiaries of International Protection
in Serbia” of the United Nations High Commissioner for Refugees (hereinafter: UNHCR) of
August 2012, according to which asylum seekers who are returned to Greece or Turkey run the
genuine risk of finding themselves in limbo, without access to protection, and at possible risk of
refoulement. (paragraph 37).
In addition to the submitted evidence, the Constitutional Court is of the view that the following
are of relevance to the assessment of this claim in the constitutional appeal: the asylum-related
legislation of the Republic of Serbia, the Court’s case law on constitutional appeals, and the
proof on which the appellant based his belief that he would be at the risk of treatment contrary to
Article 3 of the Convention if he was returned to a country he had transited before arriving in the
Republic of Serbia in his appeal of the impugned first-instance decision.
The Constitutional Court observes that the Asylum Act not only consistently implements the
principle of non-refoulement enshrined in the Constitution and the Geneva Convention Relating
to the Status of Refugees, but that it also provides additional protection by stipulating out that no
one shall be expelled or returned against his/her will to a territory where s/he risks being
subjected to torture or inhuman or degrading treatment or punishment (Article 6(3)). This legal
provision provides broader protection, than the protection guaranteed under Article 3 of the
Convention. The Constitutional Court further observes that by adopting the valid Asylum Act,
which came into effect on 1 April 2008, the Republic of Serbia accepted the concept of a safe
third country, designated as a country on a list drawn up by the Government abiding by the
international principles on refugee protection laid down in the 1951 Convention Relating to the
Status of Refugees and the 1967 Protocol Relating to the Status of Refugees, which the asylum
seeker resided in or passed through immediately before entering the territory of the Republic of
Serbia and in which s/he had the opportunity to file an asylum application, in which s/he would
not be subject to persecution, torture, inhuman or degrading treatment or refoulement to a state in
which his/her life, safety or freedom would be in danger (Article 2 of the Act). Under Article
33(1(6)) of the Act, the Asylum Office shall dismiss an asylum application without examining
whether the asylum seeker is eligible for asylum in the event it establishes that the asylum seeker
had come from a safe third country unless s/he proves that it is not safe for him/her. Pursuant to
paragraph 2 of this Article, before rendering a decision dismissing an asylum application, the
Asylum Office shall question the alien with respect to all the circumstances precluding the
dismissal of his/her asylum application on the grounds set out in paragraph 1 of this Article.
Furthermore, Article 5 of the Act sets out that the competent authorities of the Republic of Serbia
shall cooperate with the UNHCR in the implementation of its activities in conformity with its
mandate.
In its Decision Už-1286/2012 of 29 March 2012, the Constitutional Court assessed that the
above-mentioned provisions of the Act led to the conclusion that the list of safe third countries
had been drawn up, inter alia, also on the basis of UNHCR reports and conclusions. The Court
also assessed in its Decision that the reports of that organisation contributed to the proper
application of the Asylum Act by the competent authorities of the Republic of Serbia, insofar as
they would not dismiss an asylum application in the event the asylum seeker arrived from a safe
third country on the Government list if that country applied its asylum procedure in
contravention of the Convention.
Assessing whether the submitted Administrative Court judgments provided reasonable grounds
for the conclusion that the submitted asylum applications and legal remedies used in the asylum
procedure did not have “reasonable prospects of success”, the Constitutional Court found that
the Administrative Court took the view in the above mentioned judgments that Article 33(1(6))
provided the asylum seekers with the opportunity to prove that a state on the above-mentioned
Government list was not safe for them and that the first-instance authority would not dismiss
their applications if they did so, but would proceed to review the asylum eligibility requirements
on the merits (see, e.g. the Administrative Court judgment in the case of U. 4132/11 of 2
February 2012). Given that the appellant passed through Turkey, Greece and the FYROM on his
way to Serbia, the Constitutional Court particularly perused the Administrative Court judgments
regarding the claims of asylum seekers who had passed through these states before arriving in
the territory of the Republic of Serbia. In its reasonings of these judgments, notably U. 10336/11
of 10 November 2011, U. 5913/11 of 10 November 2011 and U. 3555/11 of 14 December 2011,
the Administrative Court noted that the claimants referred to the reports of international
organisations alerting to “the desultory status of asylum seekers in some of the above-mentioned
countries” and the fact that Turkey had placed a reservation on the 1967 Protocol to the 1951
Convention Relating to the Status of Refugees. The Constitutional Court, however, notes that the
cited Administrative Court judgments failed to specify which reports of international
organisations were being referred to.
Departing from the above, there is no doubt that the official UNHCR reports are of decisive
relevance in determining whether there are grounds to believe that a specific asylum seeker will
be subjected to a real risk of treatment contrary to Article 3 of the Convention in the receiving
country.
On the other hand, the Constitutional Court is of the view that it also need to be noted that the
appellant cited the European Court’s judgment in the case of M.S.S. v. Belgium and Greece
(App. No. 30696/09, of 21 January 2011) in his appeal of the impugned first-instance decision.
In that judgment, the European Court took the view that the existence of domestic laws and
accession to international treaties guaranteeing respect for fundamental rights in principle were
not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where
reliable sources (reports of the UNHCR, the Council of Europe Commissioner for Human
Rights, non-government organisations as well as research in the field) have reported practices
resorted to or tolerated by the authorities which are manifestly contrary to the principles of the
Convention. The European Court’s view expressed in this judgment -- that the risk of torture or
inhuman or degrading treatment the asylum seeker faces if removed to a third country is real and
individual enough in the presence of reliable sources testifying that the third country’s asylum
procedure is conducted in contravention of the Convention principles -- is particularly relevant in
reviews of asylum applications and legal remedies available in the asylum procedure.
Specifically, the European Court found in the above mentioned decision that, given the
submitted and obtained proof, the Belgian authorities should not have merely assumed that the
asylum seeker would be treated in conformity with the Convention standards in Greece, but were
first to have verified how the Greek authorities applied their legislation on asylum in practice.
Having taken into account that the above UNHCR observation and the European Court judgment
in the case of M.S.S. v. Belgium and Greece were not used as evidence in the asylum procedures
ending with the adoption of the submitted Administrative Court judgments, the Constitutional
Court assessed that the hitherto practice of the competent administrative authorities and the
Administrative Court, which the appellant referred to in the constitutional appeal, does not give
rise to doubts that a review of the appellant’s appeal in an administrative procedure, and,
subsequently, of any claim in an administrative dispute will not seriously take into account the
evidence on which the appellant bases his conviction that his removal to one of the mentioned
third states will put him at genuine risk of treatment contrary to the Convention principles. On
the contrary, the view the Administrative Court took in the submitted judgments allows the
appellant to highlight the reasons and submit the evidence corroborating his belief that the
Government Decision on Lists of Safe Countries of Origin and Safe Third Countries should not
apply in his specific case in his claim [to the Administrative Court], in the event he had not
already done so in his appeal [to the second-instance authority] in the administrative procedure.
The appellant is thus afforded guarantees that the safe third country concept is not absolute in
character and that it will not be applied systematically, without first reviewing his allegations
that his rights under Article 3 of the Convention will be violated in the event he is removed to
one of the mentioned third countries.
The Constitutional Court is of the view that reference to the absence of positive asylum
applications and the negligible number of upheld appeals of first-instance decisions rejecting
asylum applications in the hitherto practice of the competent administrative authorities and the
Administrative Court cannot per se be an indication of the ineffectiveness of appeals in
administrative proceedings and claims in administrative disputes on asylum cases. This view of
the Constitutional Court is reaffirmed by that of the European Court, according to which the
effectiveness of a remedy within the meaning of Article 13 does not depend on the certainty of a
favourable outcome for the applicant (judgment in the case of Gebremedhin v. France, App. No.
25389/05, paragraph 53). The Constitutional Court also took into account the statistical data
published in the above mentioned UNHCR report “Observations on the Situation of AsylumSeekers and Beneficiaries of International Protection in Serbia”, but it found that the number of
rejections of asylum applications submitted in 2011 (55) and by the end of June 2012 (29), the
number of rejected appeals in 2011 (35) and by the end of June 2012 (10), as well as the number
of rejected claims in administrative disputes in 2011 (8) and by the end of June 2012 (2), did not
constitute, for now, reliable grounds to conclude that the asylum seekers’ applications and the
legal remedies they used in the asylum procedure in the Republic of Serbia did not have
reasonable prospects of success.
7. The Constitutional Court applied the second criterion of the European Court on the mandatory
suspensive effect of the measure of removing an asylum seeker from domestic territory and finds
that it is particularly relevant to underline that the legal remedies in the asylum procedure in the
Republic of Serbia satisfy the above requirement, whereby they are effective both in the view of
the UNHCR and the Council of Europe.
Namely, under Article 42(4) of the Aliens Act (Official Gazette of the Republic of Serbia No.
97/08), an alien who filed an application for asylum on time may remain in the Republic of
Serbia until a final decision on the application is rendered.
The UNHCR’s view in its written observations in the case of H. v. France (App. No. 33087/07,
decision of 24 September 1989, paragraphs 5.1. and 5.2) -- that the suspensive effect of a legal
remedy against a decision to reject an asylum application is an important procedural safeguard
constituting an essential element of a fair and effective asylum procedure ensuring the full
application of the 1951 Convention -- is relevant in that sense. The UNHCR is of the view that a
legal remedy against a first-instance decision cannot be deemed effective in the event the asylum
seeker is not allowed to remain in the territory of the state in which s/he applied for asylum until
a decision on his/her application is rendered.
Attention also needs to be drawn to the view of the Council of Europe Parliamentary Assembly
in its Resolution 1471/2005 of 7 October 2005, that an effective legal remedy in matters
regarding the removal of aliens includes the right to lodge an appeal against a negative decision
and the right to suspend the execution of measures until the national authorities have examined
their compatibility with the Convention.
The European Court has also taken a clear view that, in matters concerning the removal of aliens
from domestic territory, a legal remedy without an automatic suspensive effect does not satisfy
the requirements of an effective legal remedy in Article 13 of the Convention (judgment in the
case of Čonka v. Belgium, App. No. 51564/99, of 5 February 2002, paragraph 83).
8. Finally, with respect to the third criterion of the European Court, under which the legal
remedies in which asylum seekers are claiming a violation of Article 3 of the Convention have to
be reviewed rapidly given the sensitivity of their situations, the Constitutional Court established
that the appellant’s asylum application had been reviewed within less than three months and that
the hitherto duration of the proceedings in this case did not vitiate the effectiveness of the applied
legal remedy. Moreover, the appellant is also entitled to file a complaint against the silence of the
administration under the conditions prescribed in Article 19(1) of the Administrative Disputes
Act (Official Gazette of the Republic of Serbia No 111/09) and thus effect a faster review of his
appeal in the administrative procedure.
9. Apart from the above, the Constitutional Court is of the view that the practical implementation
of the principles set out in Articles 7-18 of the Asylum Act also contributes to the effectiveness
of the legal remedies in the asylum procedure. This is corroborated by the information in
UNHCR’s “Observations on the Situation of Asylum-Seekers and Beneficiaries of International
Protection in Serbia” of August 2012, according to which, before lodging an asylum application,
the asylum-seeker is informed by the Asylum Office of his/her rights and obligations, especially
regarding the rights to residence, a free interpreter/translator, legal aid and access to UNHCR,
that the Asylum Centre in Banja Koviljača, where the appellant is staying, provides adequate
accommodation and living conditions (food, clothes, hygiene and a modest allowance), and that
the principles of non-discrimination, family unity, gender equality, care for persons with special
needs and freedom of movement are respected.
Although the UNHCR also observed specific shortcomings in the second-instance reviews of
appeals and the [Administrative] Court decisions on claims in administrative disputes, the
Constitutional Court accepts the European Court’s view that even if a single remedy does not by
itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for
under domestic law may do so (judgment in the case of Gebremedhin v. France, App. No.
25389/05, paragraph 53.).
It should therefore also be borne in mind that, after the completion of the two-instance
administrative proceedings and the administrative dispute, the appellant is also entitled to file a
constitutional appeal with the Constitutional Court. According to the European Court’s case law,
an appeal with a constitutional court may also constitute an effective legal remedy (judgment in
the case of Union Alimentaria Sanders S.A. v. Spain of 7 October 1987, paragraph 101). In its
judgment in the case of Vinčić and Others v. Serbia of 1 December 2009, the European Court
stated that a constitutional appeal should, in principle, be considered as an effective domestic
remedy within the meaning of Article 35(1) of the Convention in respect of all applications
introduced as of 7 August 2008, that being the date when the Constitutional Court's first
decisions on the merits of the said appeals had been published in the Official Gazette of the
Republic of Serbia (paragraph 51). Pursuant to Article 86(2) of the Constitutional Court Act,
during its review of a constitutional appeal, the Constitutional Court may suspend the execution
of an individual enactment or action complained of in the constitutional appeal at the request of
the appellant, in the event its execution would cause irreparable harm to the appellant and
provided that the suspension is not contrary to the public interest and that it would not cause
considerable damage to a third party.
Departing from all of the above considerations, the Constitutional Court concluded that the
legislation of the Republic of Serbia and the practice of the competent state authorities in the
asylum field provide sufficient guarantees of protection to asylum seekers from arbitrary
decisions on their removal to third countries, which might ultimately result in their return to their
countries of origin.
10. Given that the appellant lodged his constitutional appeal before a decision was taken on his
appeal of the impugned first-instance decision, the Constitutional Court notes that the exhaustion
of legal remedies, in its view, does not entail only the filing of such remedies, but also that the
competent authority or court rendered their decisions on the remedies.
Given that a decision on the appellant’s appeal of the impugned first-instance decision had not
been reached before the appellant filed his constitutional appeal with the Constitutional Court,
the Constitutional Court dismissed the constitutional appeal pursuant to Article 36(1(7)) of the
Constitutional Court Act since not all the constitutional prerequisites for conducting a procedure
have been satisfied.
11. The Constitutional Court rendered the decision in the disposition in accordance with the
above considerations and Articles 42c(1(1)) and 46(9) of the Constitutional Court Act.
12. Pursuant to Article 49(2) of the Constitutional Court Act, the Constitutional Court decided to
publish this decision in the Official Gazette of the Republic of Serbia in view of its relevance to
the protection of constitutionally guaranteed human rights.
No. Už-5331/2012
Chamber President – judge,
Katarina Manojlović Andrić, sgd.