Novak Djokovic case in the light of Serbian law

Under the current regulation, any professional sportsman can enter Serbia for scheduled sport events without vaccination against COVID-19.

In this case, the PCR testing can be undertaken prior or even upon arrival in Serbia, if the appropriate notification to the Serbian Chamber of Commerce is filed before arrival. Moreover, in Serbia the PCR test can be issued only by state-owned health institutions.

Vaccination against COVID -19 is not obligatory for any group of population in Serbia. The vaccination rate in Serbia is 48.33% on 14 January 2022, according to the official data collected by Our World in Data.

The administrative act of the Australian Immigration Minister for deportation of Mr. Djoković is issued as a result of Minister’s discretionary power and based on ‘public interest grounds’. Allegedly, Mr. Djokovic’s AO attendance could interfere with the health, safety and good order (public policy) of Australia. Generally, such discretionary decision is possible also under Serbian law.

Under Serbian law such a discretionary administrative act would have to be issued under the principle of equality (in comparison with other similar cases, i.e. other sportsmen and their vaccination exemptions in the same sports event) in order to avoid any possible discrimination.

Furthermore, as Mr. Djoković’s case is a precedent, the level of the legal reasoning of the administrative decision would have to meet higher standards and the statement of reasons would have to be more detailed then in other discretionary cases. This is of importance to safeguard the legal certainty and predictability for any person falling under the decision of free discretion of the administration. Under Serbian law, an administrative discretionary act of the Minister would go through the scrutiny of the court in terms of whether the decision is made ultra vires, or contrary to the aim for which the power to decide is given to the authority.

As a final note, from lawyer’s perspective, it seems that the whole discourse should be focused on the protection of core values in a democratic society and essential legal principles such as equality, predictability of decisions and freedom of expression when protecting the public order of a country.

This is to be expected anytime and even more in countries of renowned legal culture, developed legal tradition, established institutions – where human rights and individual freedoms are perceived as an indispensable societal value.

Ljubica Tomić

Attorney at Law | Managing Partner