Review – measure restricting the freedom of movement of migrants and asylum seekers from the perspective of the European Court of Human Rights

In the latest prEUgovor policy paper, Group 484 provides review of some key measures introduced during the state of emergency aimed at asylum seekers and migrants, the relevant provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and the European Court of Human Rights case-law related to the derogation from the ECHR provisions, as well as a brief overview of the measures applied to migrants and asylum seekers in other European countries during the peak of the COVID-19 pandemic crisis.

Political statements about ‘letting’ several dozens of thousands of migrants pass through, and the developments on Turkey-Greece border marked the beginning of 2020 and doubtlessly announced an uncertain spring for the countries on the Western Balkan migrant route. While the countries were preparing to take measures aimed at precluding or impeding the movement of migrants across the border, or the measures for building up capacities in case of an increased influx of migrants, detection of first COVID-19 cases and the spreading of the virus in Europe were strongly affecting the migration flow dynamics and caused establishment of special regimes of treatment of migrants and asylum seekers.

Although the state of emergency has been lifted, the COVID-19 pandemic is still present both in the Republic of Serbia and in other European countries. The coronavirus pandemic makes the countries pursue various strategies in a response to the virus and protect their populations, by giving recommendations or introducing rigorous measures that restrict rights and freedoms. As the development of the situation is not possible to predict, we cannot neglect the possibility of reimposing rigorous measures and restricting some rights and freedoms and in this regard, the possibility of introducing special regimes intended particularly for the population of migrants and asylum seekers.

Without diminishing the level of obligation of a state to apply standards of protection of human rights and freedoms even in the period of the first wave of the pandemic, it seems that the competent authorities need to be particularly and additionally careful if they are to reimpose the restrictive measures. In that regard, the document before you is mostly intended for decision makers, so that when considering introducing potential measures they would take into account whether and to what extent the measures applicable to asylum seekers and migrants during a state of emergency comply with the relevant standards of the protection system established within the Council of Europe.

The document outlines relevant provisions of the ECHR and the relevant ECtHR case-law related to the possibility of a Contracting Party’s derogation from the ECHR provisions, as well as the standards and positions of the ECtHR that are relevant for understanding the qualification of restrictions of freedom of movement or deprivation of liberty and the application of Article 5 of the ECHR (Right to liberty and security), Article 3 of the ECHR (Prohibition of torture, inhuman or degrading treatment), as well as some key measures introduced during the state of emergency aimed at asylum seekers and migrants. In addition, the document also outlines the measures applied to migrants and asylum seekers in other European countries during the peak of the COVID-19 pandemic crisis. The conclusion of the document offers key observations of the authors.

Publication of this policy paper was supported by the Embassy of the Kingdom of the Netherlands in Belgrade. The opinions expressed in the publication are solely those of the authors and do not necessarily reflect the positions of the Kingdom of the Netherlands.