P.D. against Serbia

On February 3, 2026, the European Court of Human Rights (hereinafter: the Court) issued a decision in the case, and on March 5 of the same yearP.D. against Serbia, number 42112/21.

It's a decisionbroughtthree-member Board.

THE CIRCUMSTANCES CASES, COMPLAINTS APPLICANTS AND THE PROCEDURE BEFORE THE COURT

The applicant (hereinafter: the applicant) is a citizen of Burundi and at the relevant time (2020) submitted an application for asylum in the Republic of Serbia, which was rejected as unfounded on June 2, 2022. The applicant did not use available legal remedies against this decision.

During the pandemicCOVID-19, in the period from March 9 to October 11, 2020, she was housed in the Asylum Center in Banja Koviljača.

In the application submitted on August 3, 2021, she complained to the court that her stay in Asylum center in Banja Koviljača from March 16 to May 14, 2020, constituted deprivation of liberty.

She pointed out that her rights from Art. 5 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention) and from Article 2 of Protocol No. 4 to the Convention due to the measures taken by the Republic of Serbia adopted during the COVID-19 pandemic regarding temporary restrictions on the freedom of movement of asylum seekers and irregular migrants housed in asylum centers and reception centers(Decision on temporary restriction of movement of asylum seekers and irregular migrants housed in asylum centers and reception centers in the Republic of Serbia - "Official Gazette of the RS", number 32/2020, Regulation on amendments to the Regulation on measures during a state of emergency - "Official Gazette of the RS", number 53/2020 and Order on restriction of movement on accesses to open space and facilities of reception centers for migrants and asylum centers - "Official Gazette of the RS", number 66/2020).

In particular, the applicant claimed that the movement restriction in question was illegal, arbitrary, disproportionate and discriminatory, as well as that due to the increasing influx of asylum seekers in the Asylum Center in Banja Koviljača, there was overcrowding and deterioration of accommodation conditions, including the impossibility of access to disinfectants and hygienic means, maintaining the necessary distance in order to prevent infection, etc.

Also, the applicant pointed out that her status as an asylum seeker was unjustifiably different from other categories of the population that were subjected to milder measures.

Finally, the applicant considered that she did not have an effective domestic legal remedy at her disposal for her complaints, since these were measures prescribed by general legal acts during the state of emergency.

The Constitutional Court isSeptember 17, 2020 and on December 30, 2020, examined the initiatives submitted by several non-governmental organizations based on Article 168 of the Constitution of the Republic of Serbia (hereinafter: the Constitution) to assess the compliance of various measures related to the pandemic with the constitutional right to freedom and security of the person, prohibition of discrimination and judicial protection of human and minority rights. The right to freedom of movement, protected by Article 39 of the Constitution, was not emphasized. When it comes to asylum seekers and irregular migrants, the Constitutional Court suspended the proceedings on the grounds that the disputed measures were no longer in force and because the arguments presented within the initiatives were unfounded. The Constitutional Court, in particular, determined that the restriction of movement did not constitute a deprivation of liberty.

THE DECISION THE COURT

The government raised several objections regarding the admissibility of the applicant's complaints, among other things, and regarding the failure to exhaust domestic legal remedies (filing a complaint to the Commissionerate for Refugees and Migration and constitutional appeals to the Constitutional Court).

The Court emphasized that in legal systems in which constitutionality control and judicial review of compliance with the Convention are two different procedures, the fact that contested legal provisions have been declared compliant with the Constitution does not necessarily free the applicants to use another mechanism in order to obtain effective protection of their rights under the Convention. 

Also, the Court pointed out that if the legal system envisages the constitutional protection of basic human rights and freedoms, it is in principle up to the injured individual to examine the extent of that protection and allow domestic courts to develop those rights through interpretation, and that the mere existence of doubts about the prospects for the success of a certain legal remedy is not a valid reason not to exhaust that avenue.

Finally, the Court pointed out that although the Constitutional Court concluded in its decision in the normative control procedure that the restrictive measures were in accordance with the right to freedom and security, the applicant was allowed to file a constitutional complaint based on Article 170 of the Constitution and thus gave the Constitutional Court the opportunity to examine her circumstances in which she personally found herself and the complaints presented in the petition. Additionally, the Court noted that complaints under Article 2 of Protocol 4 to the Convention or its constitutional equivalent were not filed.  neither explicitly nor tacitly, neither in the procedure for the protection of constitutionality and legality nor in any other way.

Proceeding from the above, the Court assessed that the applicant was obliged to submit a constitutional appeal to the Constitutional Court regarding her complaints and emphasized that in the hitherto unprecedented context of the virus pandemicCOVID-19 it was even more important that domestic authorities were first given the opportunity to strike a balance between competing private and public interests or between the various rights protected by the Convention, taking into account local needs and conditions and the state of public health at the time.

The court, regardless of the applicant's doubts regarding the chances of success of the constitutional appeal, assessed that this legal remedy cannot be considered obviously futile and did not find that there were any special reasons due to which the applicant would be released from the obligation to use it, and the Government's objection was accepted.

Following all of the above, the Court rejected the petition of the applicant as inadmissible due to non-exhaustion of domestic legal remedies, in accordance with Article 35, paragraph. 1 and 4 of the Convention.