From restriction of freedom of movement to deprivation of liberty of persons in need of international protection: Compliance of Serbian legislation with the European Court of Human Rights Standards

Abstract

Persons in need of international protection are in a difficult situation due to their uncertain legal status. From the moment of filing an application for decision on their legal status until it is actually determined, their freedom of movement is commonly restricted. However, the problem arises because a simple restriction of movement may amount to deprivation of liberty. The paper aims to determine when and under what conditions the restrictions on the freedom of movement may amount to deprivation of liberty, whether the difficult position of persons in need of international protection is taken into account, and whether Serbian legislation implements relevant standards established in the practice of the European Court of Human Rights on this matter. On the basis of the provision envisaged in the Serbian Asylum and Temporary Protection Act concerning restriction of freedom of movement of asylum seekers, the analysis suggests that it may cause problems in practice. Although Serbian legislation qualifies the retention of foreigners and asylum seekers in the shelter for foreigners as a measure of restriction of movement, such a situation may be inherent to the deprivation of their liberty due to the enacted provision of the Asylum Act. In this context, the author proposes necessary changes in the Serbian legislation.

Keywords

• international protection
• restriction of freedom of movement
• deprivation of liberty
• european court of human rights
• serbian legislation