BUT against Serbia

On March 4, 2025, the European Court of Human Rights (hereinafter: the Court) rendered, and on March 25 of the same year, published its judgment in the caseBut against Serbia, number 4662/22.

The verdict was unanimousbroughtlo seven-member Council.

THE CIRCUMSTANCES CASES

The applicant was detained in Serbia on November 3, 2021 on the basis of an international warrant issued by the Interpol branch of the Kingdom of Bahrain, and he was immediately assigned an ex officio lawyer.

The High Court in Belgrade heard the applicant on the same day and ordered him to extradition custody due to the risk of escape. In the decision on custody, it was stated that on October 7, 2013, after a trial in absentia in the Kingdom of Bahrain, the applicant was sentenced to life imprisonment for committing the crimes of manufacturing, using and possessing explosive devices, endangering public safety and damaging state and private property.

On November 12, 2021, the Kingdom of Bahrain requested the extradition of the applicant.

On the same day, the applicant's lawyer filed an appeal against the decision on detention, stressing that the applicant is a political prisoner and is eligible to seek asylum. She claimed that the conviction of the applicant for criminal offenses is a way of dealing with the religious minority to which he belongs.

On November 15, 2021, the applicant sent a letter to the High Court in Belgrade, claiming that he is a political activist, that the accusations that he is a terrorist are false, and that he is threatened with torture and death in the Kingdom of Bahrain, for which reasons he sought protection and asylum. The High Court in Belgrade rejected the appeal of the applicant's lawyer two days later, pointing out that he did not seek asylum in Serbia.

The High Court in Belgrade then determined on December 7, 2021, that the legal prerequisites for extradition of the applicant were met. The decision referred to the European Convention on Extradition and the Law on International Legal Assistance in Criminal Matters, but did not address the issue of whether the applicant would face the risk of torture or ill-treatment if extradited.

The applicant filed an appeal against the aforementioned decision on December 13, 2021, through a lawyer, and personally sent three letters to the High Court in Belgrade (December 9, 14, and 21, 2021). He denied the accusations against him and demanded contact with the lawyer and the family. He claimed that he is a political prisoner and a Shiite by religion, and that if extradited he would be exposed to the risk of torture, ill-treatment and the potential death penalty.

The Court of Appeal in Belgrade scheduled a hearing on December 29, 2021, which was postponed because the applicant's lawyer did not appear due to the lawyers' strike. At the same time, the applicant pointed out that the lawyer never visited him in detention and that he had no contact with her.

At a new hearing on January 17, 2022, the Court of Appeal in Belgrade rejected the appeal and confirmed the decision of the High Court in Belgrade.

On January 18, 2022, the Minister of Justice issued a decision allowing the extradition of the applicant to the Kingdom of Bahrain.

The following day, the applicant's lawyer turned to the Belgrade Center for Human Rights (hereinafter: the Belgrade Center), which on January 20, 2022 informed the Asylum Office, the Border Police Administration and representativesUNHCR- and in Serbia that the applicant, a Shia by religion, was sentenced to a life sentence in the Kingdom of Bahrain, that he is awaiting extradition to that country and that during the extradition procedure he expressed his intention to request asylum.

As the Border Police Directorate replied to the Belgrade Center on January 21, 2022 that in order to start the asylum procedure it is necessary for the applicant to contact them either in person or through an attorney with a power of attorney, the applicant authorized five employees of the Belgrade Center and two lawyers to represent him on the same day. At 3:21 p.m. on the same day, one of the new representatives asked the Border Police Administration and the Asylum Office to grant the applicant access to the asylum procedure. The working hours of the Asylum Office are until 3:30 p.m.

On the same day, the police officer informed the High Court in Belgrade that the applicant's extradition is planned for Tuesday, January 25, 2022.

On January 21, 2022, at 1:13 p.m., the Court received a request for the issuance of a temporary measure, and at 7:57 p.m., it informed the Government that it had adopted a temporary measure ordering the Republic of Serbia not to extradite the applicant to the Kingdom of Bahrain until January 25, 2022, at 5:00 p.m.

At 9:23 p.m., the Border Police Administration and the Asylum Office were informed by the Belgrade Center about the adopted temporary measure, and at 10:19 p.m., the Ministry of Internal Affairs and the Ministry of Justice were informed via e-mail by the Office of the Representative. The representative's office informed the aforementioned authorities about everything via regular mail on Monday, January 24, 2022.

On Saturday, January 22, 2022, the Interpol branch in Bahrain requested that the extradition of the applicant be carried out in the early morning hours of Monday, January 24, 2022. The police officer informed the High Court in Belgrade of this determination of the extradition date on the same day by telephone.

On January 23, 2022, the police officer informed the High Court in Belgrade about the Court's temporary measure, and asked if the judge could "finally resolve the matter". The judge replied that the Ministry of Justice is the only competent authority to decide in a given situation.

The applicant was extradited to the Kingdom of Bahrain on January 24, 2022 at 04:00 in the morning.

On January 27, 2022, the Border Police Directorate, in response to inquiries from the Belgrade Center on January 25, stated that the applicant was not registered as a person who expressed the intention to request asylum, nor did he submit a request for asylum, in accordance with the relevant articles of the Asylum Law.

On January 28, 2022, the court revoked the temporary measure from January 21.

On February 18, 2022, the applicant's attorneys submitted a constitutional appeal to the Constitutional Court against the decision of the Court of Appeal in Belgrade and the Ministry of Justice of January 17 and 18, 2022. The constitutional appeal was still pending on February 11, 2025.

On his own initiative, the Protector of Citizens initiated a procedure to control the legality and regularity of the work of the Ministry of Justice and the Ministry of Internal Affairs, the Police Directorate, the Border Police Administration and the Asylum Office, and after the procedure, in his report dated August 9, 2022, stated that there were no omissions in the work of the aforementioned authorities in the process of extraditing the applicant to the Kingdom of Bahrain and in the process of deciding on his request for asylum in the Republic of Serbia, since a request of such content was never submitted through regular channels.

On November 28, 2022, the applicant's attorneys asked the Court to issue another temporary measure that would order the Government to try to return the applicant to Serbia, but the following day the Court rejected their request.

COMPLAINTS OF THE APPLICANT AND THE PROCEDURE BEFORE THE COURT

The applicant submitted the petition to the Court on January 21, 2022.

In the petition, he complained of a violation of the prohibition of torture from Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention), because the domestic authorities extradited him to the Kingdom of Bahrain despite the alleged existence of substantial reasons to believe that there he would face a real risk of being subjected to torture or inhuman or degrading treatment, as well as a sentence of life imprisonment without the prospect of ever being released. The applicant also complained that his right to an effective remedy under Article 13 of the Convention was violated, in particular because the domestic authorities did not allow him to submit an asylum application.

THE DECISION THE COURT

• Article 3 of the Convention

The court noted that the legal remedy in a situation where the applicant tries to prevent his removal from the territory of the state due to the risk of acting contrary to Article 3 of the Convention can only be effective if it produces an automatic suspensive effect.

Accordingly, the Court took the view that neither the submission of a constitutional appeal, nor the submission of a request for asylum or the expression of the intention to request asylum, can be considered as effective legal remedies against the extradition decision in the Republic of Serbia.

As there is no obligation to use legal remedies that are not adequate or effective, and bearing in mind that the applicant during the extradition procedure sufficiently presented his complaint that there was a risk of ill-treatment in violation of Article 3 of the Convention in the event of his extradition, the Court rejected the Government's complaint about non-exhaustion of domestic legal remedies.

The court further noted that the only attempt by the domestic authorities to analyze the possibility of the applicant facing any risk was to establish the fact that the relevant law of the Kingdom of Bahrain does not prescribe the death penalty for the criminal offense in connection with which his extradition was requested. There was no investigation of the situation in the Kingdom of Bahrain, nor of the personal circumstances of the applicant. The assessment of the circumstances of the case was limited to a formal examination of the legal requirements for the applicant's extradition.

Following the above, the Court found that the domestic authorities did not carry out any, let alone strict, verification of the applicant's allegations regarding the risk of ill-treatment in the Kingdom of Bahrain, which violated the procedural aspect of Article 3 of the Convention.

• Article 13 of the Convention

Bearing in mind its conclusions regarding Article 3 of the Convention, the Court did not consider it necessary to separately analyze the admissibility and merits of the complaints under Article 13 of the Convention.

• Article 34 of the Convention

The court observed that at the time of delivery of the decision on the temporary measure, the extradition of the applicant was planned for Tuesday, January 25, 2022, and that the domestic authorities should have had at least one working day to ensure that all relevant authorities were informed about the temporary measure.

Only after the delivery of the temporary measure, the applicant's extradition was postponed to Monday, January 24, 2022, at 04:00 in the morning, for unknown reasons.

The court also noted that the request of the Kingdom of Bahrain to accelerate the extradition of the applicant was also received outside working hours, on Saturday January 22, 2022, but that this did not prevent the domestic authorities from acting accordingly.

In accordance with the above, the Court concluded that nothing objectively represented an obstacle to the observance of the temporary measure adopted by the Court.

Consequently, the Court found that the Serbian authorities did not act according to the Court's temporary measure adopted according to the rule 39, which violated their obligation according to member 34 of the Convention.

FAIRLY SATISFACTION (Article 41 of the Convention)

The court obliged the Republic of Serbia to pay the applicant the amount of EUR 9,800.00 as compensation for non-material damage, while rejecting the applicant's remaining claims for just satisfaction.