CCPR/C/123/D/2768/2016
cited information about Serbia and referred to the constitutional protection of the right to
asylum in Serbia and its ratification of a number of international human rights treaties
guaranteeing that right, as well as the fact that Serbia had an asylum law which came into
force in 2008 and a legal framework for making decisions and revising them. However, in
its decision the Office of Immigration and Nationality did not take into consideration
whether access to asylum in Serbia was guaranteed in practice and made no mention of the
sexual abuse the author had suffered in Serbia. Nor did they evaluate the information she
had provided on the atrocities committed against her and her sister in Belgrade, or take into
account the fact that they were victims of human trafficking. On that basis, the Office of
Immigration and Nationality mistakenly concluded that the author had had the opportunity
to apply for asylum in Serbia, ordered her expulsion and issued a two-year entry ban.
2.7
The decision of the Office of Immigration and Nationality was communicated to the
author on 20 April 2016. She submitted an appeal to the Administrative and Labour Court
of Budapest and requested a personal hearing. 6 On 26 April 2016, the author’s counsel sent
an urgent submission to the court via the Office of Immigration and Nationality. 7 The
counsel argued that Serbia could not be considered a safe third country for the author; that
the individual assessment concerning refoulement to Serbia had not been carried out with
due care; that the author’s statements on her captivity and rape in Serbia had not triggered a
special investigation, given that she was particularly vulnerable; that no medical expert had
been ordered to examine her; and that the Office of Immigration and Nationality had not
presented any evidence that Serbia was a safe country for the author or given her an
opportunity to comment in that regard.
2.8
The Office of Immigration and Nationality claimed to have received the submission
on 29 April 2016 and, despite the urgency, it forwarded it to the court only on 2 May 2016.
The author’s counsel called the court on 2 and 3 May 2016 to inquire whether the
submission had been received, but was informed that the submission had not arrived and
that the case had not yet been registered. On 4 May 2016, counsel called again and was
informed that a case number had been assigned to the case on 3 May in the afternoon and
that the court had already decided the case. The decision is dated 3 May 2016,
demonstrating that the court did not duly examine her submission. The judge did not
mention that the author was represented in the proceedings.
2.9
In its decision of 3 May 2016, the Budapest Administrative and Labour Court
rejected the author’s appeal and confirmed the decision of the Office of Immigration and
Nationality, stating that the author had not presented any new facts concerning the legal
questions arising from her case. The court did not therefore find it necessary to hear her in
person. The court also stated that the author had not presented facts explaining why Serbia
would not be a safe country for her8 and noted that the author had had the chance to apply
for asylum in Serbia and invoke effective protection, but had not done so. The court
concluded that the information on Serbia indicated that asylum could be granted there. It
further stated that “according to section 2 of government decree 191/2015 (VII.21) on safe
countries of origin and safe third countries, Serbia, as an acknowledged candidate state to
join the European Union, is a safe third country. The decree establishes a presumption
(praesumptio iuris) concerning the safety of Serbia. The Office of Immigration and
Nationality communicated this fact to the applicant in the asylum procedure, yet she
presented no facts explaining why Serbia would not be a safe country for her.”
2.10 The author submits that, according to section 53 (5) of the Asylum Act, decisions by
the Budapest Administrative and Labour Court in judicial review procedures on asylum
issues cannot be appealed, and she has thus exhausted all domestic remedies.
6
7
8
According to section 53 (3) and (4) of the Asylum Act, an asylum seeker has seven days to appeal and
the court has to decide the case in eight days. A personal hearing is not mandatory.
According to section 53 (3) of the Asylum Act, the request for review must be submitted to the
refugee authority within seven days of the communication of the decision. The refugee authority must
then forward the request for review, together with the documents of the case and its counterapplication, to the court without delay.
The author claims that she did mention in the interview with the Office of Immigration and
Nationality that she was held in captivity in Serbia, forced into prostitution and raped several times.
3