Serbia's constitutional court has confirmed that the country has deported asylum-seekers to neighboring EU member state Bulgaria in contravention of international law.
The judge ruled that the security agents should have treated the migrants as potential asylum-seekers
It was a frigid Saturday morning when Bulgarian police discovered a group of 25 Afghan people, including seven small children, in a forest close to the border with Serbia. They had spent the night outdoors. The police report states that the migrants were interrogated on February 4, 2017.
Now, some four years later, in a landmark ruling exclusively seen by DW, Serbia's top court has confirmed that Serbian security personnel had illegally deported the asylum-seekers from Serbia, instead of issuing proper paperwork and accommodating them in a shelter.
For years, human rights activists have criticized border officers, police and military staff for brutally mistreating migrants along the Balkan route. And for years, authorities in the respective western Balkan states have denied that migrants have been deported in contravention of international law in what have become known as pushbacks. Very few courts have so far ruled on the matter, making the verdict by Serbia's constitutional court a momentous ruling.
"It is hard to overestimate the impact of the court ruling, as illegal pushbacks are the most difficult human rights violation to prove," lawyer Nikola Kovacevic, who brought the case before the court, tells DW. "Unfortunately, it is an open secret that pushbacks from Serbia are still happening, and so far nobody has been held accountable."
According to the court file, Serbian security forces were observing a group of migrants near the Bulgarian border just after midnight on February 3, 2017. The group then boarded two cars and drove toward central Serbia.
The drivers, two Serbian citizens, were arrested within minutes. They were human traffickers, a thriving criminal enterprise in the Balkans. One of the vehicles, a gray VW Passat, was transporting 17 people: six men, four women and seven children, all from Afghanistan. It was in their name that the case was brought before the constitutional court.
The migrants, for their part, were locked up in a police station in Gradina, a village near the Bulgarian border. The rundown cell had neither running water, nor heating, nor a toilet. And the migrants were not able to consult a lawyer.
The following morning, they were taken to a local court for administrative offenses. They were accused of having illegally entered Serbia and told to give testimony. The presiding judge, however, acquitted the Afghan migrants, arguing they should be treated as asylum-seekers — or as victims of people smugglers.
Interrogation reports show the migrants hail from Kabul and Masar-e Sharif, and had spent months traveling through Iran, Turkey and Bulgaria en route toward northwestern Europe. They reported having paid a number traffickers along the way. And they said they could not return to Afghanistan because of the war and the danger posed by the Taliban.
The presiding judge ruled that the security agents should treat the migrants as potential asylum-seekers and issue documents for accommodation in shelters.
Serbian security agents say they handed out the paperwork directly after leaving the court building and left.
Testimony from one eyewitness, however, convinced Serbia's constitutional court that what really happened was different. According to this, the Afghans were forced into a police van, taken to the forest along the Bulgarian border, and then illegally forced back into Bulgaria.
"They did not beat us but they did take away our papers for the Serbian asylum-seeker shelter," one of the Afghan migrants reported several days after the pushback using the Viber messaging service. The migrant utilized this channel to contact Belgrade lawyer Nikola Kovacevic.
It is not the job of Serbia's top court to identify which police officers or border guards deported the Afghans. As is common in such cases, the Serbian ministries in charge have not commented on the matter. But Kovacevic insists the identity of the officers who conducted the pushback must be revealed. "I see the court verdict as a warning to the Interior and Defense Ministries," says Kovacevic.
For the time being, however, Kovacevic has cause to be satisfied with the ruling by the constitutional court. Serbia's judiciary is infamous for being under the control of President Aleksandar Vucic and his Progressive Party. Critics suspect that the tough stance of Serbian security officers toward migrants at the Serbian borders has long been part of the government's state policy. This makes the ruling all the more important.
In autumn 2015, President Vucic praised German Chancellor Merkel for her open-door policy toward asylum-seekers. Just one year later, Hungary and Croatia shut their borders, effectively closing down the Balkan route. This led to fears in Serbia that hundreds of thousands of migrants could become stranded in the country. In May 2017, Serbian General Milan Gujanica boasted to Tanjug news agency that "we have erected an impregnable shield along the border."
The general proudly claimed that some 20,000 people, most of them Afghans, had been prevented from crossing the border in the first months of that year. During this same period, he said, 140 people traffickers had been arrested. The EU apparently condoned Serbia's hard-line approach, as it had deployed 50 police officers from various member states to patrol the frontier alongside Serbian security personnel.
The Belgrade branch of the UN's refugee agency, UNHCR, has reported that about 1,000 people were illegally deported from Serbia in November 2016 alone. Human rights activists have documented illegal pushbacks by Croatian and Bulgarian authorities for years. But neither of their top courts have ruled on the matter in the way the Serbian one now has.
The Serbian government must now pay €1,000 ($1,200) in compensation to each of the 17 Afghans for their illegal deportation. Kovacevic is in touch with many of them. He says most now live in Germany.
This article was adapted from German.