On the 11th of July 2023, the European Court of Human Rights (ECtHR) ruled in its judgment S.E. v. Serbia, no. 61365/16. The case concerned a Syrian national, S.E., who was granted refugee status in Serbia. He applied for a travel document for refugees because his Syrian national passport had expired, but was notified that this could not be issued as subsidiary regulations had not yet been enacted by the Minister of the Interior. In 2022, S.E. obtained a Syrian national passport and used it to leave Serbia.
The Court first ruled that Serbia deprived S.E.’s right to leave the country of any effectiveness for an extended period of seven years in a manner undoubtedly amounting to an interference within the meaning of Article 2 of Protocol No. 4 to the Convention by notifying him of their inability to issue a travel document for refugees due to the lack of subsidiary regulations to implement the Asylum Act. In assessing the justification of the interference, the ECtHR stated that Serbia’s Asylum Act recognised the individual right of a recognised refugee to obtain a travel document and required the Minister of the Interior to enact subsidiary legislation to ensure their implementation. Therefore, the S.E.’s entitlement had emanated from the domestic legislation, which gave effect to the obligations stemming from the Refugee Convention. Furthermore, the legislative inaction had lasted for a considerable period of time and Serbia had not demonstrated that they had made any effort to act in accordance with the rule of law and take the appropriate regulatory and operational measures to implement the domestic law. Hence, the Court ruled that the interference was not “in accordance with law” and so violated Article 2 § 2 of Protocol No. 4.
Importantly, the Court observed that Serbia’s prolonged failure to implement its own domestic law allowing for the issuance of the concerned travel documents is a structural problem. Hence, it is incumbent on the Committee of Ministers, acting under Article 46 ECHR, to address the issue through both individual and general measures. The ECtHR held that Serbia has to take all appropriate statutory and operational measures to complete the pertinent legislative framework and implementing regulations to provide the effective right to leave the territory, and the possibility for any individual in a similar situation to access the procedure to apply for and obtain a travel document.