07 Jan ECtHR on Refusal of Serbian authorities to Issue Travel Document for Refugee in Serbia

In the case of S.E. v. Serbia (Application no. 61365/16, 11.7.2023) the European Court of Human Rights unanimously found a violation of the Article 2 § 2 of Protocol No. 4 to the Convention the European Convention on Human Rights that guarantees the right to be free to leave any country. The case relates to a refusal of Serbian authorities to issue a travel document for a refugee due to absence of regulations implementing domestic asylum law.

The applicant was granted refugee status in 2015 due to political activities in Syria and general state insecurity in the country. Upon applying for a travel document based on granted status, the applicant was informed by the Ministry of Interior that he cannot be issued with the travel document since, as per existing regulations, issuance of such documents required subsidiary legislation that had not been enacted at the time. 

In response to the denial, the applicant filed a constitutional appeal alleging that the Minister of the Interior had failed to adopt the relevant regulations which prevented him to obtain a travel document that would allow him to travel outside Serbia. However, the Constitutional Court rejected the appeal citing that appeals could only be lodged against specific actions, not inaction or the failure to adopt general legal acts, specifically a failure to adopt subsidiary regulations. 

The Government contended that since State could not issue a travel document to the applicant for technical reasons, without any intention of restricting his liberty of movement, the disputed inaction might have arguably caused only a breach of the right to a travel document under the Refugee Convention.

However, the ECtHR stated that the argument that the State’s refusal to issue a travel document to the applicant was not a consequence of restrictive measures with the aim of prohibiting him from leaving Serbia does not render this Article inapplicable, as long as the consequences produced by the State’s actions or omissions may have precluded him from doing so. 

Moreover, with regard to the Government’s argument that the refusal to issue travel documents was not motivated by a deliberate effort to restrict freedom of movement, but rather by the lack of particular financial resources, the Court stated that the “economic wellbeing of the country and related financial considerations are not even among the legitimate aims enlisted in Article 2 § 3 of Protocol No. 4 and therefore cannot justify restrictions on the right to leave one’s country”. The court also highlighted that “this case is clearly distinguishable from other cases where it has examined the insufficiency of resources in the context of States’ prolonged confrontation with a sudden and quantitatively significant influx of refugees and disproportionate pressure on their asylum systems”.

Finally, the ECtHR concluded that the refusal to issue a travel document for refugees for seven years, due to the absence of appropriate regulations, infringed upon the applicant’s right to leave Serbia freely and therefore found a violation of Article 2 § 2 of Protocol No. 4 to the Convention.