Author: Marko Štambuk attorney at law, Belgrade Centre for Human Rights associate
Case No. MLG35/2022 Novak Đoković v. the Ministry for Home Affairs, ruled on in the Federal Circuit and Family Court of Australia, attracted huge attention of media, politicians, legal experts, as well as laymen. Thanks to the social and traditional media, even those not interested in the case learned about its outcome. Herewith a similar albeit fictional case illustrating how this specific field of law is governed in Serbia.
The best-ranking Australian tennis player on the ATP list Alex De Minor landed at Belgrade Airport Nikola Tesla to take part in a tournament held in Serbia. He arrived at passport control and handed his travel document to the police officers. Although Australian nationals do not need a visa to enter and stay in the Serbia for a short period of time, the border police are entitled to deny any foreigner entry into the country. Namely, Article 15 of the Foreigners Law lists a total of 13 reasons why they can take such a decision. For instance, the border police will deny entry to any foreigner who produces a forged document, does not have a valid visa or the requisite vaccination certificate (not applying just to COVID-19), or if so required to protect the safety of Serbia and its citizens. Justified doubts about the declared purpose of entry suffice. The legislator is of the opinion that foreigners held in the transit zone have not formally entered Serbia’s territory; in practice, they sometimes wait in the Belgrade Airport transit zone for days for their return flight. This somewhat resembles the situation the character played by Tom Hanks found himself in in the movie Terminal. In rare situations, foreigners, who have been denied entry and cannot be removed immediately, may be referred to the police-run Detention Centre for Foreigners in Padinska Skela. The facility has an almost identical purpose as Park Hotel in Melbourne, where the best Serbian tennis player was temporarily deprived of liberty. Various categories of foreigners are detained in the Centre, from those irregularly in Serbia and those whose identity is being established to those who want to seek asylum.
The Australian tennis ace in this hypothetical case could be stopped by the border police on any of the grounds under Article 15 of the Foreigners Law. They would issue him a decision on denial of entry – a form in Serbian and English. The form contains the following information: the foreigner’s personal data, the enumerated reasons for denial of entry under Article 15 (the officer circles the relevant one) and instruction on appeal.
Although a foreigner denied entry is entitled to appeal the decision within eight days, there are a number of reasons why this legal remedy can be considered totally ineffective. Let’s start from the beginning. It is reasonable to assume that individuals, who are unfamiliar with Serbian law, are not proficient in Serbian and are held at the airport, cannot themselves write the appeal, which must be in Serbian. This is why adequate legal aid is the first thing most foreigners denied entry need.
Say Alex De Minor has the contact details of a lawyer who can help him out in such a situation. It’s quite doubtful his lawyer could even access the transit zone and counsel him without having to jump through hoops first. The lawyer would need to obtain the Interior Ministry’s consent to enter the transit zone, which is only issued after the completion of a procedure and the necessary checks. The police at Belgrade Airport often seize, for no legitimate reason, the foreigners’ phones to prevent them from communicating with the outside world. Furthermore, the appeal can be filed only if an administrative fee amounting to as much as 12,470 RSD is paid. The decision on denial of entry does not specify the account number it is to be paid into. However the greatest flaw of this legal remedy is that it does not stay the enforcement of the decision, while the airline that flew the foreigner in is under the legal obligation to fly him or her out of Serbia at its own cost. Therefore, even if the Australian tennis ace managed to overcome all of these obstacles and file the appeal, he would definitely not be in Serbia (even in the transit zone or the Detention Centre) by the time the second-instance authority ruled on the appeal because the airline that had flown him to Belgrade would have already taken him back to the country he had come from. An administrative dispute may be initiated against the negative decision of the second-instance authority. In light of the fact that proceedings before the Administrative Court last years, Alex De Minor would have to wait for it in Australia or another country.
All of the above leads to the conclusion that Serbia’s “immigration system” is extremely “strict” towards foreigners who find themselves in a similar situation as the Serbian tennis ace. He had the opportunity to argue against the Australian authorities’ decision. Thanks to the suspensive effect of his appeal, he was in Melbourne when the Court ruled on it. The proceedings were efficient and judge Anthony Kelly ruled impartially in favour of the party that can be qualified as the “weaker” one, since it was up against the representatives of the executive authorities and the state’s entire bureaucratic apparatus. The trial was public and could be followed from anywhere in the world, ensuring the full transparency of the Court’s adjudication. All these elements render a trial fair, in this case the trial held before the Australian Family Court; the Australian executive authorities’ treatment of Novak Đoković can, however, be brought into question. Regulations governing this field of law must not be rigid and to the detriment of individuals whose rights and obligations they govern. Finally, independent and effective oversight of all those enforcing the law is crucial for achieving the highest degree of legal certainty of both domestic and foreign nationals.