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16 people kept for 20 hours in a small room which was “the size of a van’”
The main respondent is a 30-year-old woman from Afghanistan. The respondent claims that she got caught at around 4 a.m. on the 5th of March when trying to cross to Croatia from Serbia on a truck, together with other 19 people, 3 minors included, because the driver noticed that there were people in the back of the car. The respondent claims that the driver informed the Serbian police, before approaching the border. According to the respondent, once there, a police patrol stopped the car and let them go. The exact location of the incident is unknown.
The respondent claims that the police must have followed the group walking back to the forest, close to Šid, where they wanted to stay for the night, because shortly after they got there (between 30mins and 1 h) 10 to 12 uniformed men, described as Serbian Police officers, showed up, pointing guns towards them and screaming “don’t move”. The respondent states that the police officers collected their belongings and then started burning them in a pile, including food, tents, bags, pots, jackets and so on. The respondent claims that after that they brought them to a police station in Šid, where they were kept in detention. According to the respondent, the whole group, 16 people from Afghanistan – three of them minors – had to stay in a small room at the police station, which was ”the size of a van”, so they were not able to move for 20 hours. The respondent states that the police officers refused to offer food, water or the use of toilets. She reports that their phones and money were taken, but given back when they were allowed to leave the place of detention. The respondent reports that the police forced them to give their fingerprints. According to the respondent, on the next day they were brought to a camp in Pirot, a place in the south of Serbia next to the Bulgarian border.
The respondent states that after having experienced police violence in both countries, she believes that the “Serbian police is still better than the Bulgarian”.
legal analysis
Serbia acted in violation of the prohibition of degrading treatment (Art. 5 UNDHR, Art. 7 ICCPR, Art. 3 ECHR), the protection of property (Art. 17 UNDHR, Art. 1 Protocol 1 ECHR), the right to liberty and security of a person and the freedom from arbitrary arrest or detention (Art. 3, 9 UNDHR, Art. 9 and 10 ICCPR, Art. 5 ECHR) and the right to respect private and family life (Art. 12, UNDHR, Art. 17 ICCPR, Art. 8 ECHR).
The ill-treatment by the 10-12 Serbian police officers -pointing guns at the respondent and screaming “don’t move”- constitutes degrading treatment contrary to Art. 3 ECHR: where an individual is confronted with police officers, “any recourse to physical force which has not been made strictly necessary by the person’s conduct diminishes human dignity” (ECtHR, Bouyid v. Belgium [GC], App no. 23380/09, 2015, §§ 81-90 and 101). The collection and burning of the group’s personal belongings (food, tents, bags, pots, jackets etc.), is a clear breach of people’s right to property and integrity of their belongings as set forth in Art. 1 Protocol 1 ECHR.
The arrest and subsequent detention of the respondent infringes her right to liberty and freedom from being detained arbitrarily, Art. 5 ECHR. The prohibition of arbitrary detention is an absolute and non-derogable norm of customary international law (CCPR/C/GC/35, § 66). The respondent was detained without charge, neither during the arrest nor while at the police station did the officers inform the respondent of the reason for her detention. Criminalising “irregular” migration is not a legitimate justification for the use of immigration detention (A/HRC/7/4, § 53) and has in this case led to the respondent’s arbitrary detention and deprivation of liberty.
Conditions of detention, also within the context of migration, must be compatible with respect for human dignity; the health and well-being of the detainees must be adequately secured. The respondent was detained together with 15 people in a room the size of a van without being able to move and the officers refused to give them food and water or access to the toilet. The detention in cramped, unsanitary conditions without access to basic necessities like food, water and toilets infringes the prohibition of degrading treatment, Art. 3 ECHR.
Serbia is not an EU member state where fingerprints of People on the Move are collected for the EURODAC database and where PoM may be under a duty to cooperate. Without any charge or suspicious conduct by the respondent, the forced fingerprinting at the police station is an invasion of privacy contrary to Art. 8 ECHR.
Since three individuals of the group were minors, Serbia also acted in violation of Art. 3, Art. 19, 37 and Art, 39 CRC.
overview
16 people ,
from Afghanistan,
aged 30 years old and various ages, including 3 minors.