Cases of Novak Djokovic, Mr. X, Mrs. Y and my letter to mother Dijana Djokovic and all the mothers in the world whose children are in incommunicado detention
The European Court of Human Rights has long ago taken the position, which has its foundation in international law, that every state has the right to control the entry, stay and expulsion from its territory. Of course, this right is not an absolute right and has its limitations, especially in customary international law, which says that no one can ever be returned to the territory of any country where they could be subjected to torture or cruel, inhuman or degrading treatment or punishment. This prohibition of return (the non-refoulement principle) also exists in the case of the risk of the death penalty, unconditional life imprisonment, flagrant denial of the right to liberty, the right to a fair trial and so on. Thus, the international law is clear about who we are and who we are not allowed to return to where they came from.
Novak Djokovic arrived in Australia with a medical exemption and guarantees from the state of Victoria that his visa, i.e. unhindered entry, is guaranteed. However, as we now all know, Novak’s visa was cancelled upon entering the country and he was issued a decision of refusal of entry which, as human rights activists in Australia claim, has no suspensive effect, especially in the case of refugees and asylum seekers. Not having suspensive effect means that the decision is enforced before considering the appeal that the person in question can potentially lodge. In other words, first they send you back where you came from, and only then they decide on your appeal. For refugees, that means: you file a complaint, they send you back, you get killed or imprisoned, and then, if they accept your complaint, you can go back. Novak Djokovic filed an appeal and was lucky that the lack of suspensive effect was countervailed by the help of Judge Kelly, who ordered the Australian immigration authorities not to forcibly remove Mr. Djokovic until his case is considered in court. Otherwise, Djokovic would probably have been returned to Dubai from where he arrived in Melbourne.
A quick reminder, Novak Djokovic is the best tennis player of all time, man who earned hundreds of millions of euros in tournaments he won, from sponsors and probably business ventures that he and his family started with the money that he earned playing tennis. Everyone knows Novak Djokovic, and he is a welcome guest everywhere in the world among politicians, actors, journalists and the world’s jet set. He, quite deservedly, has a diplomatic passport of the Republic of Serbia. He has probably helped thousands of people, children, built monasteries, donated to covid clinics in Italy, for floods in Serbia, Bosnia and Croatia, but also for fire relief efforts in Australia. So Novak is, as far as I am concerned, a good guy and an even better athlete, a symbol of a little man from a shattered country who achieved all his dreams through hard work. Regardless of the fact that he is, contrary to myself, an anti-vaxxer, I accept him as a role model and inspiration in terms of reaching the stars from an unfavourable position (a position incomprehensible to, say, Federer and Nadal), through hard work instead of party membership or family connections.
From this point I shall stop discussing Novak Djokovic in terms of vaxxers and anti-vaxxers, position and opposition in Serbia and Australia, the historical heritage of Australia and the crimes against Aborigines, conspiracy theories about a small but defiant Serbian people against the evil West that controls the world. Prime ministers of Australia and Serbia, the ministers of both countries, Nigel Farage, who visited Novak’s restaurant in Belgrade, Serbian politicians, President Vucic and Croatian journalist Aleksandar Stankovic stated their opinions on the case. We heard comments from Rafael Nadal, Danil Medvedev, Alexander Zverev, Marian Wajda and Boris Becker. Several Serbian citizens went in front of the Australian embassy in Belgrade and played tennis against the walls of the building in which it is located. Several hundred people gathered in protests in Belgrade and Melbourne at the invitation of the Djokovic family. Jokes were made about roasting kangaroos instead of piglets for Christmas, there were thousands of posts and tweets and everyone took one position or another, in a serious and dramatic way, or in a funny or derogatory way. I was even invited to be a guest on one television show and comment on the situation in which Djokovic found himself, from the aspect of immigration law.
I decided to describe everything that makes me angry and sad about this case on the Peščanik portal, and then return to my regular job, which at least once a month involves “rescuing” refugees from the “Nikola Tesla” airport, which our border police want to send back to their country of origin, where they face persecution and human rights violations. And that is a topic that I believe deserves to be discussed first and foremost – the treatment of refugees and asylum seekers at the border by the immigration services of Australia, Serbia, Russia, China, Hungary and many others.
I will present my story according to the model of numerous media which reported the Djokovic case chronologically, with date and hour timestamp. The only thing I will add next to Djokovic timestamps are the timestamps of two cases I dealt with during the New Year and Christmas holidays. My story begins on Christmas, December 25, 2021 (although I could also begin in November 2013, when I first started with this job, helping refugees at Nikola Tesla Airport enter Serbia, access asylum, and avoid torture and death in Iran’s Evin Prison, execution by the Somali terrorist group al-Shabab, or life imprisonment in Turkey for fighting to resolve the Kurdish issue).
– On December 25, 2021, at around 8 AM, a Turkish Airlines plane landed at the Nikola Tesla Airport in Belgrade, carrying among other passengers one Mr. X, a refugee from Burundi, who, as he claims, fled his country of origin due to political persecution and abuse he was subjected to in a prison in Bujumbura (capital of Burundi). He comes with a proper passport and does not need a visa to stay for up to 90 days;
– On December 25, 2021, around 9 AM, the Serbian border police intercepted Mr. X after he got off the plane, took his mobile phone and passport and took him to a room intended for people who, according to the border authorities of the Republic of Serbia, do not meet the border entry requirements. Mr. X. tried to seek asylum in good English, but nobody listened to him;
– So, on the morning of December 25, 2021, Mr. X was deprived of his liberty and taken to a room filled with prison bars, without natural ventilation and in a ruined state, including the toilet. Special Rapporteur on Torture Nils Melzer and the Protector of Citizens and others also wrote about it. Judge Kelly described this treatment as incommunicado detention in the case of Novak Djokovic, a type of detention in which a prisoner is cut off from the outside world because he cannot call anyone and ask for help;
– On December 25, 2021, Mr. X, a Catholic from Burundi, spends his Christmas holidays cut off from the world; he cannot communicate with his family who worry about his whereabouts. Closed in a room with 20 to 30 people who are in the same situation as him, during pandemic, in a room without natural ventilation, where they get maybe one sandwich a day;
– On December 28, Mr. X’s sister called me and asked me to help her brother. I addressed the Belgrade Border Police Station (SGPB) on the same day, although I knew that Mr. X was very likely no longer there. When dealing with the SGPB, it is important to react as quickly as possible, because here’s what happens in practice: without translators and lawyers and without any opportunity to dispute their return to the country of origin or third country, refugees and asylum seekers are immediately handed over the decision of entry refusal and sent back at the expense of the airline they arrived with. Mr. X. cannot appeal the decision of refusal of entry, because he is not legally competent, because he is scared, because he has no legal representative, because he cannot, even if he wanted to, communicate with anyone in the outside world. He is threatened and forced into signing the decision. Even if he hadn’t signed it, the decision would have been made and executed, i.e. people are simply sent back. Thus, there is no real opportunity to challenge the decision. English language skills of Serbian Border Police are also questionable;
– On the night of December 28 to December 29, 2021, just before dawn, according to Mr. X, 13 citizens of Burundi, including him, were forcibly put on a plane with the use of rubber truncheons and returned to Istanbul, from where they will be sent to Addis Ababa in Ethiopia and then to Bujumbura. This all happened after 5 days during which nobody knew exactly where they were and what was happening to them. His sister and I found out about this only the following day, because he could not immediately charge his mobile phone after landing at the airport in Istanbul and going through a rigorous several-hour control by the Turkish immigration authorities;
– On December 29, 2021, Mr. X. and 12 other Burundians are staying at the airport in Istanbul, where their passports and personal belongings have been confiscated and where they have to sleep on the floor. They cannot seek asylum, they are waiting to be returned to where they claim they are in danger. No one can help them in Turkey;
– On December 30, Mr. X. called me from the airport in Istanbul and asked me to help him. I can do nothing from Serbia except send a few emails to Turkish NGOs and the UNCHR. I get messages that I forward to wherever I know and can, hoping that someone will help them;
– On December 30, TV N1 runs the article about the return of this man from the “Nikola Tesla” airport. Apart from one negative and one positive comment, this news did not make any splash in the Serbian media. Nobody cares;
– At 8 AM on January 1st, 2022, on a flight from Bujumbura via Addis Ababa and Istanbul, Ms. Y, a student who escaped death and sexual abuse by the paramilitary formation Inboneracura, landed at the “Nikola Tesla” airport. Upon landing, her mobile phone was confiscated in order to prevent her from calling for legal assistance, her French and Kirundi asylum claims were ignored and she was taken to the same premises as Mr. X. Dozens of people are already there, including some Tunisians who were in the mood to play around with a young girl from Burundi. She was protected by young men from Burundi who were imprisoned with her;
– At 1 am on January 3rd, 2022, I receive a message and a letter from a frightened mother, who did not hear from her daughter Y, who escaped persecution, sexual abuse and death, for more than 48 hours. I am trying to reach SGP Belgrade, but there is no answer. I call the number I have from 2014, and after a few calls I realize they must have blocked my number;
– On January 4, 2022, Mrs. Y’s crying mother called me and said that on the night between January 3rd and 4th 2022, the police tried to send her back to Istanbul, but that she managed to avoid it by lying on the floor and giving passive resistance while weeping in agony. The same scenario was confirmed to me by the witness, the guy who boarded the plane for Istanbul that evening, where I hope he still is today. I hope he is not returned to Burundi. So as it turns out, without a lawyer or translator, Mrs Y. managed to win the fight for her bare life;
– On January 4, around 2 pm, I am sending an angry email to the SGP Belgrade, the Border Police Administration with the Ombudsman in cc, with hope that the SGP will come to their senses. SGP Belgrade has blocked my number and I can’t reach them, it’s the holidays, the European Court and other human rights bodies I usually turn to are working at reduced capacity. Part of the email goes like this:
I am addressing you on behalf of Ms. Y.’s mother and I ask you to issue her, in accordance with Article 35 of the Law on Asylum and Temporary Protection, a certificate of expressed intention to apply for asylum, because if you try to act upon the illegal decision of entry refusal (again, since last night you tried and failed), which you rendered automatically, without the asylum seeker being able to challenge it with the help of an interpreter and legal representative, and with the appeal not having suspensive effect, and with you taking away her mobile phone, you will bring her life in danger.
Ms. Y. is at risk from Inbonerakur, a paramilitary formation from Burundi that is looking for her and could deprive her of her liberty immediately after landing in Bujumbura, after which her life will be endangered.
– Thanks to the swift reaction by the Ombudsman’s Office employees, on the evening of January 4th, 2022, after 4 days, Ms. Y informed her mother that she was fine. At the same time, Mr. X. sends me a dozen messages asking me to help him, because if they bring him back from Istanbul to Bujumbura he will be killed. He has no money and no food at Ataturk Airport and no one cares about him;
– On January 5th, 2022, Novak Djokovic landed at the airport in Melbourne. At the passport control, in English language spoken by both Novak and the border police officer, Novak is told that he must come with the police to discuss the validity of obtaining a visa. His mobile phone is confiscated so that he cannot call his family, which of course was the reason for his mother Dijana’s great concern. Novak was taken into custody at the airport, probably with instructions to intimidate him a little bit in accordance with well-known immigration practice in Australia;
– In the period from January 5th to 6th, 2022, on Christmas Day, which is extremely important for Novak Djokovic as an Orthodox, the manipulative game of the Australian immigration services begins. Because of this game they are condemned all over the world by us who deal with human rights. During the interrogation, or rather, abuse of domestic procedures (later determined by Judge Kelly’s decision), Australian border police officers are trying to force Novak to provide counter-arguments for visa refusal. This happens at 4 AM while Novak is in a state of shock because of deprivation of liberty, during a political pressure by the Australian public. Providing such arguments is not easy in such circumstances and when you are legally incompetent for Australian immigration law. Novak manages to hold his own and not sign anything. After his phone was returned to him after 3 o’clock, he immediately called his lawyer, who took further action. He called his family and at least that evening Dijana, Djordje, Marko and Srdjan slept a little better. Mr. X. is still in Istanbul where he sleeps on the floor and no one can help him;
– On Christmas Day, January 6, 2022, Novak is taken into immigration detention, the infamous hotel in Melbourne, where refugees and asylum seekers have been staying for years, cut off from the world, in inhumane and degrading conditions, with bad food and cockroaches;
– During January 6th, 2022, Mr. X, still at the Istanbul airport, sends me messages asking me for help. I pass them on to whoever I can in Turkey. The entire world population has already picked a side, for or against Novak, and no one knows about Mr. X. except me and his sister;
– On January 7th, 2022, Novak is celebrating Christmas in immigration detention, the whole world is on its feet, moravac folk dance is being played in front of the hotel, the Djokovic family is holding press conferences and organizing rallies. The whole world knows about Novak, and no one still knows about Mr. X… I don’t know what to do for him anymore;
– From January 7th to 10th, 2022, Novak is in inhumane and humiliating conditions, as many claims, where he does not have adequate food, where he cannot train and where a young man from Iran has been living for 9 years. Everyone has an opinion, everyone is condemning, diplomatic efforts are being made to get him gluten-free food and training conditions. Moravac is still being played, press conferences are being held, Australia is being condemned, Mr. X is still sending messages and begging for help…
– On January 10, 2022, Judge Kelly discovers all the errors made by the Australian immigration services and releases Novak. Judge Kelly exposes the perfidy of the immigration practices used on people coming to Australia, including refugees and asylum seekers. All the shouting, all the phone taking, all the “just sign this and everything will be fine” tricks. There are probably other things that they were afraid to use on Novak;
– Around noon on January 10th, 2022, Novak publishes a picture from the Rod Laver Arena where he did his first training. At 19:40 on the same day, I received a message from Mr. X. that the Turkish police were beating him and forcing him to get on a plane to Addis Ababa, and back to Bujumbura;
Today is January 11th, 2022, and while we are waiting for the decision of the Minister of Migration of Australia whether or not to allow Novak to compete in the Australian Open, Mr. X. still hasn’t sent me a message. Novak talks to his family every day, trains and hopes for the best. I hope so too. I want him to win the 10th Grand Slam in Australia and put an end to the question of who is the greatest tennis player of all time. But I also hope that Mr. X. is well and that nothing bad has happened to him.
Because of all of the above, and taking into account the fact that I believe that Novak Djokovic is, as I said, a good guy, I also want to believe that he or someone from his family will read this article. I want to believe that their global influence, driven by the inconvenience they have experienced, will draw the attention of everyone in the world to the immigration policy practiced by Australia. Novak was not returned from the airport only because he is Novak, which is not the case with many refugees who came, are coming and will come after him to the same airport. Do you think that refugees and migrants get a phone back to call a lawyer, and even if they do, do you think they can afford the best lawyers such as the ones Novak hired?
Also, I want to believe that Novak, any member of his family, or anyone who followed his case and condemned it as unjust, will walk beyond the last gates every time they travel through Nikola Tesla Airport and ask the Serbian border police if there are any Mrs. Y. or some Mr. X being held there. And if they find out that they are there, I hope they will raise their voices for them, as they did for Novak.
We have heard stories about injustice these days, everyone talked about Novak Djokovic’s human rights. Everyone has criticized the Australian Immigration Service, and rightly so, judging by Judge Kelly’s decision. If all these views were principled, and if people truly believed what they said, let’s put the case of Mr. X and Ms. Y on the agenda now. Let’s see if the “Djokovic case” will affect the practice of SGP Belgrade? Let’s see if we can show in this way that we can be better than Australia, and I hereby call on Prime Minister Brnabic and President Vucic and all others who agreed that what Djokovic had experienced was an injustice, to eradicate the same injustice from Serbian airports, and thus prevent human rights violations, the tears of families of detainees and the worries of mothers of refugees around the world.
Let’s apply the standards that Judge Kelly applied to the Djokovic case and give everyone the right to have his or her voice heard, instead of just “loading” them back on the plane and returning them to the country of origin where they are in danger. The key question is, are you ready to stand up for the human rights of refugees and asylum seekers, as you did for Novak? I will also mention the words of Novak Djokovic’s father, who mentioned “the free people of Africa, the Middle and Far East”. Those same “free people” from Burundi, Syria, Iraq and Afghanistan are fleeing persecution every day, and some of them end up in Serbia seeking protection.
And finally, as I finish this text, I need to state the following: “I Nikola Kovačević under full responsibility claim that now, January 11th, 2022 at 14:10, without a phone, without an opportunity to call mother or father, in ruined, dirty and the stuffy premises of Nikola Tesla Airport, some refugees and migrants are waiting for their right to a phone call, their lawyers and their judge Kelly to protect them from the rigorous and illegal actions of the border authorities.”
I’m not so optimistic, but maybe this will be read by someone who can help with getting these people “in transit” a chance to have their voice heard in the legal procedure, just like Novak’s voice was heard in Mr. Kelly’s courtroom.
Translated by Viktor Markovic