FIRST SECTION
CASE OF KHLYUSTOV
v. RUSSIA
(Application no. 28975/05)
JUDGMENT
STRASBOURG
11 July 2013
This judgment will become
final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
In the case of Khlyustov v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
June
2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
28975/05) against the Russian Federation lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Russian national, Mr Vyacheslav Igorevich Khlyustov
(“the applicant”), on 29 July 2005.
The applicant was represented by Mr Ye.
Swarovski, a lawyer practising in Moscow. The Russian Government (“the
Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
The applicant complained, in particular, of restrictions
on his right to leave his own country.
On 18 January 2011 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1962 and lives in Moscow.
A. Enforcement proceedings initiated in respect of the
applicant
In 2002 a certain S.
brought court proceedings against the applicant before the Tushinskiy District
Court, Moscow (“the District Court”). S. sought to recover an amount of money
advanced to the applicant for construction of a house for him. S. claimed that instead
of building the house the applicant had acquired a flat for himself and a new
car. The District Court attached the applicant’s flat to secure the claim.
On 4 April 2003 the District Court awarded 362,267.87
Russian roubles (RUB) to S., to be paid by the applicant, and issued a writ of
execution.
By a ruling of 7 May 2003 the Moscow north-west
bailiffs’ service (“the bailiffs’ service”) initiated enforcement proceedings.
The applicant was invited to voluntarily comply with the judgment debt within
five days of the date on which the enforcement proceedings were initiated.
On several occasions the applicant asked the
District Court to postpone the enforcement of the judgment of 4 April 2003. He
claimed that although he had some income, his financial situation was difficult
since he had two dependent children and a sick mother. By decisions of 23
October 2003 and 18 January and 14 April 2005 the District Court dismissed his
requests.
On 20 November 2003 the District Court granted
the applicant’s request to lift the attachment order in respect of his flat on
the grounds that it was his and his family’s sole dwelling and therefore could
not be seized for the purpose of enforcement of the judgment of 4 April 2003.
On 19 October 2004 the
District Court examined another claim lodged by S. against the applicant, in
which he requested the annulment of the contract for the sale of the applicant’s
car to his wife in July 2003. The court found that the contract was void and
ordered the repossession of the car for the purpose of enforcing the judgment
debt of 4 April 2003.
. By
a judgment of 29 November 2004 the District Court ordered the applicant to pay RUB
160,000 to his former wife in respect of unpaid child support.
On 27 January 2005 the bailiffs’ service joined
the enforcement proceedings initiated following the judgment of 4 April 2003 to
the proceedings opened following the judgment of 29 November 2004.
14. On 15
December 2005 the enforcement proceedings were discontinued on the grounds that
a writ of execution had been sent to the applicant’s employer, a private
company based in Vladivostok, Primorskiy Region.
. In
2010 S. asked the District Court to provide him with a duplicate of the writ of
execution issued following the judgment of 4 April 2003, on the grounds that
the original writ of execution had been lost and the judgment of 4 April 2003
had not been enforced in full.
. On
23 April 2010 the District Court granted that request. The court found it established
that on 15 December 2005 the bailiffs’ service had forwarded the writ of execution
to the applicant’s employer, indicating that by that date it had recovered from
the applicant only a part of the debt and that the remaining part amounted to
RUB 218,406.31. It was also established that between 2006 and 2009 the
applicant had returned RUB 70,661 to S.
. It
appears that the applicant paid the remainder of his debt to S. in July 2010.
B. Restrictions on the applicant’s leaving the country and judicial
review thereof
In the framework of the
enforcement proceedings described above, the bailiffs’ service on several
occasions restricted the applicant’s right to leave the country. Their decisions were based on the 1996 Federal Act on
Leaving and Entering the Russian Federation (Procedures) (section 15(5)), the 1997
Federal Act on Enforcement Proceedings (section 4(1) and (3), section 44(3) and
section 45(5)) and the 1997 Federal Act on the Bailiffs’ Service (section 14)
(see “Relevant domestic law” below).
1. Demand
of 27 November 2003
. On 27 November 2003 the bailiffs’ service sent the
Moscow Department of the Interior a document in the form of a “demand” (“требование”).
The document stated that on 7 May 2003 the bailiffs’ service had instituted
enforcement proceedings on the basis of the writ of execution of the same date
in accordance with which RUB 362,267.87 had to be
recovered from the applicant. The applicant had not paid the judgment debt
voluntarily and had not complied with the bailiffs’ service’s ruling of 7 May
2003. Therefore, referring to relevant provisions of domestic law (see
paragraph 18 above), the bailiffs’ service requested the Department of the
Interior to enter the applicant in the Department’s database with a view to
imposing a temporary restriction of up to six months on his right to leave the Russian Federation. The demand did not indicate the date on which the six-month period
started to run.
The applicant alleged that
the bailiffs’ service had not informed him of the restrictions imposed on him.
Therefore, in January 2004, he had purchased a package holiday to Egypt for himself and two members of his family. When he attempted to board the plane on 24
January 2004 the Border Service officials at the airport had refused to allow
him to board. The applicant provided the Court with a copy of the contract of
purchase of that package holiday.
By a final decision of 20 May 2004 the Moscow City
Court (“the City Court”) dismissed the applicant’s complaint against the
bailiffs’ service’s demand of 27 November 2003. It found, in particular, that
the bailiffs’ service had lawful grounds on which to impose the travel ban on
the applicant.
2. Order
of 3 June 2004
. On
3 June 2004 the bailiffs’ service sent the Department of Border Control a
document in the form of an “order” (“поручение”). In that document the bailiffs’ service requested that the
applicant’s right to leave the Russian Federation be restricted for a period of
six months starting from 22 June 2004, on the grounds that the applicant had
not voluntarily complied with the judgment of 4 April 2003.
. It
is not clear on what date the applicant was notified of the order of 3 June
2004. It appears that he did not appeal against it.
3. Demand
of 10 June 2004
On 10 June 2004 the bailiffs’ service sent the
Moscow Department of the Interior a demand requesting it to enter the applicant
in the Department’s database with a view to imposing a temporary restriction of
up to six months on his right to leave the Russian Federation. The document
stated that the applicant had not paid the judgment debt voluntarily and had
not complied with the bailiffs’ service’s decision initiating the enforcement
proceedings. It did not indicate the date on which
the six-month period started to run.
. It
is not clear on what date the applicant was notified of the demand of 10 June 2004.
It appears that he did not appeal against it.
4. Order
of 24 December 2004
On 24 December 2004 the head of the bailiffs’
service sent another order to the Department of Border Control to restrict the
applicant’s right to leave the country for another six months on the grounds
that he had not voluntarily repaid the judgment debt of 4 April 2003. The order
did not indicate the date on which the six-month period started to run.
On 31 December 2004 the applicant challenged the
bailiffs’ service’s order before the District Court. He complained, in
particular, that the head of the bailiffs’ service had had no right to issue such
an order and that the order was unlawful since he had already started repaying
the debt. He also complained that the order in question violated the rights of
his minor children, for whom he had been paying child support.
By a final decision of 22 June 2005 the City
Court found that the head of the bailiffs’ service had imposed the travel ban
on the applicant in accordance with the law. In particular, the City Court
established that the bailiffs’ service had initiated the enforcement
proceedings and had made relevant enquiries in order to obtain information
about the applicant’s assets. Since the applicant had not been paying the
judgment debt, on 27 November 2003 the bailiffs’ service had restricted
his right to leave the country. The court found those actions lawful. Taking
into account that as at 24 December 2004 the applicant had not complied with the
judgment debt and had not reached any agreement with the creditor, the bailiffs’
service had again restricted his right to leave the country and had done so in
accordance with the relevant domestic law. The City Court also observed that the
applicant had started repaying the debt only on 27 January 2005, after the
bailiff’s demand to restrict his right to leave the country. The City Court also
took into account the fact that other enforcement proceedings had been pending
in respect of the applicant for his failure to pay child support for his minor
children.
5. Ruling of 3 March
2005
On 3 March 2005, while the court proceedings on
the applicant’s appeal against the bailiffs’ service’s order of 24 December
2004 were pending, the bailiffs’ service issued a ruling (“постановление”) restricting the applicant’s right to leave the country.
The ruling stated that the applicant was seeking to evade the enforcement of
the judgment of 4 April 2003 and that therefore his right to leave the Russian Federation should be restricted. The ruling did not indicate the period during
which the restriction was to be applied to the applicant.
On 21 April 2005 the applicant appealed against
the ruling of 3 March 2005 to the District Court.
On 7 July 2005 the District Court quashed the ruling
of 3 March 2005 on the grounds that, contrary to the requirements of domestic
law, that ruling had not indicated the period during which the travel restriction
was to be applied to the applicant. It appears that the bailiffs’ service did
not appeal against the decision of 7 July 2005.
6. Order of 26 May 2005
On 26 May 2005, while the court proceedings on
the applicant’s appeal against the bailiffs’ service’s ruling of 3 March 2005
were pending, the bailiffs’ service again sent an order to the Department of
Border Control to restrict the applicant’s right to leave the country for
another six months starting from 26 May 2005. The order stated that the
applicant had not complied with the judgment of 4 April 2003 voluntarily and
that, according to his creditor, the applicant had been travelling abroad
frequently. On the same date a copy of that order was sent to the applicant.
On 26 July 2005 the District Court found the
bailiffs’ service’s order to be lawful. It held, in particular, that the order
had been issued in accordance with section 15 of the 1996 Federal Act on
Leaving and Entering the Russian Federation (Procedures) and fully complied
with formal requirements provided for in section 16 of that Act. It appears
that the applicant did not appeal against that decision to the City Court.
On 15 December 2005
the restriction imposed on the applicant’s leaving the country was lifted.
C. Proceedings before
the Constitutional Court
On an unspecified date the applicant applied to
the Constitutional Court of the Russian Federation, requesting it to examine
the compatibility with the Constitution of section 15(5)
of the 1996 Federal Act on Leaving and Entering the Russian Federation
(Procedures) (see “Relevant domestic law” below).
On 24
February 2005 the Constitutional Court of the Russian Federation refused to
examine the applicant’s complaint, citing lack of jurisdiction in relation to
the subject matter. In its decision the Constitutional Court noted that the restrictions
provided for in the impugned provisions were not of an absolute character. In
particular, the restrictions could be imposed only for a limited duration, the
law had set the maximum period during which such restrictions could be applied
and permission to leave the Russian Federation could be granted before expiry
of those restrictions. The Constitutional Court further observed that in all
cases of temporary restrictions of the constitutional right to leave the
Russian Federation the relevant body of the Ministry of the Interior had to notify
the citizen concerned of the reasons for and the term of the restriction, as
well as the date and registration number of the relevant decision and the full
name and legal address of the organisation which had assumed responsibility for
restricting the person’s right to leave the Russian Federation. The body in
question was therefore under an obligation to justify the necessity of the restriction.
The Constitutional Court observed that the restrictions were aimed at the
protection of constitutional values and could not be regarded as violating the applicant’s
constitutional rights. Finally, the Constitutional Court noted that the legislature had made the application of restrictions
dependent not only on the existence of formal grounds but also on specific
factual circumstances, which, where necessary, could be verified by the courts
of general jurisdiction.
D. Criminal proceedings against the applicant
On 18 July 2005 the Moscow Tushinskiy district prosecutor
initiated criminal proceedings against the applicant on suspicion of forgery of
documents submitted by the latter to the District Court in the context of two
other sets of civil proceedings brought against him by S.
On 17 May 2006 the District Court discontinued
the criminal proceedings against the applicant because the limitation period
for a criminal prosecution for forgery had expired. The applicant did not
appeal against that decision.
II. RELEVANT
DOMESTIC LAW
A. 1993 Constitution of
the Russian Federation
Article 27 § 1 provides that everyone who is
legally present on the territory of the Russian Federation shall have the right
to travel freely and freely to choose the place of temporary or permanent
residence.
Article 27 § 2 provides that anyone may freely
leave the Russian Federation. Citizens of the Russian Federation shall have the
right freely to return to the Russian Federation.
Article 55 § 3 provides that human and civil
rights and freedoms may be limited by federal law only to the extent necessary to
protect the basis of the constitutional order, morality and the health, rights
and lawful interests of others, and to ensure the defence of the country and
the security of the State.
B. The 1996 Federal Act
on Leaving and Entering the Russian Federation (Procedures), as worded at the
material time
The right of a Russian citizen to leave the Russian Federation could be restricted only on the basis of the Act and in accordance with
the procedure set out therein (section 2).
The right of a Russian citizen to leave the Russian Federation could be temporarily restricted if he or she evaded obligations imposed
on him or her by a court. In such cases the restriction was valid until the
obligation had been complied with or until the parties settled the matter
(section 15(5)).
In all cases where
a temporary restriction on leaving the Russian Federation was imposed on a
citizen of the country, the relevant body of the Ministry of the Interior had
to notify the citizen concerned of the reasons for and the term of the
restriction, as well as the date and registration number of the relevant decision
and the full name and legal address of the organisation which had assumed
responsibility for restricting the person’s right to leave the Russian
Federation (section 16).
In cases where the restriction on leaving the
country was imposed in accordance with section 15(5), the passport of the
person concerned was withdrawn by the bodies authorised to do so and returned
to the State body which had issued it (section 18).
C. The 1997 Federal Act
on Enforcement Proceedings, in force until 1 February 2008
Section 4 provided that claims submitted by a bailiff
in the context of enforcement proceedings initiated following a decision by a
court or any other body were binding on all organisations and on public
servants and citizens throughout the territory of the Russian Federation
(Section 4 (1)). In the event of failure to comply with the bailiff’s orders,
the latter could apply the measures provided for by that law or by any other
federal law (Section 4 (2)). Obstructing the bailiff in the performance of his or
her duties rendered the person concerned liable under the legislation of the Russian Federation (Section 4 (3)).
Section 44 provided that bailiffs could apply
compulsory measures if all the following criteria were met: the bailiffs had received
a duly completed writ of execution (Section 44 (1)) and instituted enforcement
proceedings (Section 44 (2)), and the deadline set for voluntary compliance had
expired (Section 44 (3)).
Section 45 provided a list of
compulsory measures which could be applied by bailiffs. In particular, they
could seize the debtor’s property (section 45(1)), attach the debtor’s salary,
retirement pension, scholarship or other sources of income (section 45(2)),
seize money or other property of the debtor held by others (section 45(3)),
remove from the debtor and hand over to the judgment creditor certain items
specified in the writ of execution (section 45(4)) and take any other measures
provided for by the law on enforcement proceedings or by other federal laws in
order to enforce the writ of execution (section 45 (5)).
Section 88 provided that if
decisions taken by the bailiff in the framework of enforcement proceedings
(initiating enforcement proceedings, recovery of fees, imposition of fines, etc.)
affected rights of parties to the enforcement proceedings and other persons,
the bailiff had to issue a ruling (“постановление”) to that effect. Such a ruling should indicate the date on
which it was issued, the place where it was issued, the position, family and
full name of the bailiff who issued it, reference to the relevant enforcement
proceedings, and describe the matter under examination, the grounds for taking
the decision with reference to the laws and other legal acts on which the
bailiff relied when taking the decision, the conclusion on the matter at issue
and the procedure and time-limits for lodging an appeal against that ruling.
Section 90 provided that parties
to enforcement proceedings could appeal against the bailiff’s actions to a
court.
D. The 1997 Federal Act on the Bailiffs’ Service
Section 14 provides that lawful demands
submitted by a bailiff should be complied with by all organisations, officials
and citizens on the territory of the Russian Federation. Information requested
by bailiffs in the performance of their duties is to be provided to them free
of charge and within the deadlines indicated by them. Failure to comply with a
bailiff’s demand renders the person concerned liable under the legislation of
the Russian Federation.
E. The 2007 Federal Act
on Enforcement Proceedings, in force since 1 February 2008
Section 67 establishes a
framework for imposing restrictions on a debtor’s
right to leave the country. In particular, it provides that a restriction on
leaving the country may be imposed in the event of all the following criteria
being met: enforcement proceedings have been initiated following a court
decision, the bailiff has set a time-limit for voluntary compliance with the
decision and the debtor has failed to comply within that time-limit, the debtor
has no valid reason for not complying with the judgment, and the bailiff’s
decision to restrict the debtor’s right to leave the country has been approved
by a senior bailiff.
THE LAW
I. ALLEGED
VIOLATION OF ARTICLE 2 OF PROTOCOL No. 4 TO THE CONVENTION
The applicant complained under Article 2 of
Protocol No. 4 to the Convention that his right to leave the Russian Federation had been violated by a series of six-month travel bans imposed on him by the bailiffs’
service until he had paid a judgment debt to a private person.
The Court considers that this complaint falls to
be examined under Article 2 §§ 2 and 3 of Protocol No. 4, which provides as
follows:
“2. Everyone shall be free to leave any country,
including his own.
3. No restrictions shall be placed on the exercise
of these rights other than such as are in accordance with law and are necessary
in a democratic society in the interests of national security or public safety,
for the maintenance of ordre public, for the prevention of crime, for the
protection of health or morals, or for the protection of the rights and
freedoms of others ...”
A. Admissibility
The Government did not
raise any objection as to the admissibility of the complaint. They indicated that
the restrictions had been imposed on the applicant on 27 November 2003, 10 June
and 24 December 2004 and 26 May 2005. Each restriction had been imposed
for a period of six months, which started to run on the date when the bailiffs’
service issued the relevant decision. The restriction imposed on 3 March 2005 had
been quashed by the domestic court.
. The
applicant did not comment.
The Court reiterates that it is not open to it
to set aside the application of the six-month rule solely because a respondent
Government has not made a preliminary objection to that effect, since the said
criterion, reflecting as it does the wish of the Contracting Parties to prevent
past events being called into question after an indefinite lapse of time,
serves the interests not only of respondent Governments, but also of legal
certainty as a value in itself. It marks out the temporal limits of the
supervision carried out by the organs of the Convention and signals to both
individuals and State authorities the period beyond which such supervision is
no longer possible (see Walker v. the United Kingdom (dec.), no.
34979/97, ECHR 2000-I).
The Court further reiterates that pursuant to
Article 35 § 1 of the Convention, it may only deal with a matter within a
period of six months from the final decision in the process of exhaustion of
domestic remedies. In cases featuring a continuing
situation, the six-month period runs from the cessation of that situation (see Seleznev v. Russia, no.
15591/03, § 34, 26 June 2008, and Koval
v. Ukraine (dec.), no. 65550/01, 30 March
2004).
. In
the present case the applicant complained of a series of six-month
travel bans imposed on him by the bailiffs’ service between 2003 and 2005 for
failure to honour judgment debts to private persons. The question is whether
those bans should be regarded as distinct measures and the six-month rule
should be applied separately to each period during which the applicant was
prohibited from leaving the country, or whether the series of bans can be
considered as creating a continuing situation, in which case the six-month
period would start to run only after the situation complained of was brought to
an end.
In that connection the Court reiterates that the
concept of a “continuing situation” refers to a state of affairs in which there
are continuous activities by or on the part of the State which render the
applicant a victim (see Posti and Rahko v. Finland, no. 27824/95, § 39,
ECHR 2002-VII). Complaints which have as their source specific events
which occurred on identifiable dates cannot be construed as referring to a
continuing situation (see Camberrow MM5 AD v. Bulgaria, (dec.), no. 50357/99,
1 April 2004).
Turning to the circumstances of the present case,
the Court observes that during the enforcement proceedings the bailiffs’
service issued several decisions restricting the applicant’s right to leave the
Russian Federation. According to the Government, four restrictions were
issued in respect of the applicant: on 27 November 2003, 10 June and 24
December 2004 and 26 May 2005, and each of them lasted for a period of six
months which started to run on the date when the bailiffs’ service issued the
relevant decisions. In that connection the Court observes that, according to
the case materials, the bailiffs’ service issued six restrictions on the
applicant’s right to leave the country: the demand of 27 November 2003, the order
of 3 June 2004, the demand of 10 June 2004, the order of 24 December 2004, the ruling
of 3 March 2005 and the order of 26 May 2005. The Court agrees that all those decisions,
apart from the ruling of 3 March 2005, indicated that the travel restrictions were
to be applied to the applicant for a period of up to six months. Furthermore, the
Court observes that some of those decisions indicated the date on which the
six-month period started to run, and that it was not necessarily the date on
which the relevant decision was issued. For instance, the order of 3 June 2004
stated that the six-month period would start to run on 22 June 2004. However, contrary
to the Government’s assertions, the demands of 27 November 2003 and 10 June
2004 and the order of 24 December 2004 did not indicate on what date the
six-month period started to run. In view of those factors, the Court is unable
to establish the exact dates on which the travel restrictions issued on 27 November
2003 and 10 June and 24 December 2004 were applied to the applicant. Therefore,
despite the fact that the order of 3 June 2004 and the demand of 26 May 2005 specified
the exact dates on which the six-month period started to run, it cannot be said
that each and every restriction applied to the applicant took effect on an identifiable
date. In such circumstances the Court considers that the travel restriction was
applied to the applicant at the latest on 24 January 2004, when he was not
allowed to board a plane to Egypt (see paragraph 20 above) and was lifted on 15
December 2005, when the enforcement proceedings were discontinued (see
paragraph 14 above).
The Court further notes that the applicant
challenged some of the restrictions issued in his respect in separate court
proceedings. However, in the Court’s opinion that element is not sufficient to
conclude that the events complained of were composed of separate and unrelated
occurrences. In particular, the Court observes that all the travel bans were
applied within the same enforcement proceedings and with reference to the same
legal provisions. They thus formed a continuing act on the part of the domestic
authorities by which the applicant was prohibited from leaving the country from
at least 24 January 2004 until 15 December 2005. In such circumstances, the
six-month period provided for by Article 35 § 1 of the Convention started to run
only after that activity had been brought to an end on 15 December 2005. It
suffices to note that the applicant submitted his application during the period
when the travel ban was still in force.
In sum, the Court finds that the applicant
submitted his complaint under Article 2 of Protocol No. 4 in compliance with
Article 35 § 1 of the Convention. The Court further observes that this complaint
is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
The Court reiterates that Article 2 of Protocol
No. 4 to the Convention guarantees to any person a right to liberty of
movement, including the right to leave any country for such country of the
person’s choice to which he or she may be admitted (see Baumann v. France,
no. 33592/96, § 61, ECHR 2001-V (extracts)). Any measure restricting
that right should be “in accordance with law”, pursue one or more of the
legitimate aims contemplated in the third paragraph of the same Article and “be
necessary in a democratic society” (see Raimondo v. Italy, 22 February
1994, § 39, Series A no. 281-A, and Labita v. Italy [GC], no.
26772/95, §§ 194 and 195, ECHR 2000-IV).
In the present
case it is not disputed that the restrictions on the applicant’s leaving Russia
constituted interference with his right to leave the country, as guaranteed by
Article 2 § 2 of Protocol No. 4. The Court therefore has to examine whether that
interference was in “accordance with law”, pursued one or more legitimate aims
and “was necessary in a democratic society”.
1. Whether the interference was “in accordance with
law”
(a) The parties’ submissions
The Government
submitted that the interference had been in accordance with the 1996 Federal Act
on Leaving and Entering the Russian Federation (Procedures), which had been
accessible to the applicant and foreseeable as to its effects.
The applicant claimed that the ban imposed on
him in 2003 and its further extensions had had no legal basis in Russian law as
it existed at the relevant time and had therefore been arbitrary. The law cited
by the Government, namely the 1996 Federal Act on Leaving and Entering the
Russian Federation (Procedures), had not been clear enough for anyone to
foresee that non-payment of a judgment debt would result in a travel ban.
The old 1997 Federal Act on Enforcement Proceedings had not contained any
provision authorising the bailiffs’ service to impose a travel ban on the
debtor. It was not until 2007 that a new Federal Act on Enforcement Proceedings
had been passed, establishing a framework for restricting a debtor’s right to
leave his or her own country. The applicant also considered that both the old
and the new laws on enforcement proceedings were incompatible with Article 27
of the Russian Constitution.
(b) The Court’s assessment
The Court reiterates its
settled case-law according to which the expression “in accordance with the law”
not only requires that the impugned measure should have some basis in domestic
law, but also refers to the quality of the law in question. Firstly, the law
must be adequately accessible: the citizen must be able to have an indication
that is adequate in the circumstances of the legal rules applicable to a given
case. Secondly, a norm cannot be regarded as a "law" unless it is
formulated with sufficient precision to enable the citizen to regulate his
conduct: he must be able - if need be with appropriate advice - to foresee, to
a degree that is reasonable in the circumstances, the consequences which a
given action may entail. Those consequences need not be foreseeable with
absolute certainty: experience shows this to be unattainable. Again, whilst
certainty is highly desirable, it may bring in its train excessive rigidity and
the law must be able to keep pace with changing circumstances. Accordingly,
many laws are inevitably couched in terms which, to a greater or lesser extent,
are vague and whose interpretation and application are questions of practice
(see The Sunday Times v. the United Kingdom (no. 1), 26 April
1979, §§ 47-49, Series A no. 30 and Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC],
no. 38433/09, §§ 140 and
141, ECHR 2012).
. The
level of precision required of domestic legislation - which cannot in any case
provide for every eventuality - depends to a considerable degree on the content
of the law in question, the field it is designed to cover and the number and status
of those to whom it is addressed. It is moreover primarily to domestic
authorities to interpret and apply domestic law (see Vogt v. Germany, 26 September 1995, § 48, Series A no. 323).
. The
phrase “in accordance with the law” also requires the domestic law to be
compatible with the rule of law; it thus implies that there must be a measure
of protection in domestic law against arbitrary interferences by public
authorities with the rights safeguarded by Convention (see Malone v. the
United Kingdom, 2 August 1984, § 67, Series A no. 82). A law which confers a discretion must indicate the scope of
that discretion, although the detailed procedures and conditions to be observed
do not necessarily have to be incorporated in rules of substantive law (see Silver
and Others v. the United Kingdom, 25 March 1983, § 88, Series A no. 61).
The Court observes that when imposing the travel
bans on the applicant the authorities referred to three legal acts: the 1996
Federal Act on Leaving and Entering the Russian Federation (Procedures)
(section 15(5)), the 1997 Federal Act on Enforcement Proceedings (section 4(1)
and (3), section 44(3) and section 45(5)) and the 1997 Federal Act on the Bailiffs’
Service (section 14) (see “Relevant domestic law” above).
In so far as the applicant complained that the 1997
Federal Act on Enforcement Proceedings as in force at the material time did not
contain any provision authorising the bailiffs’ service to impose a travel ban
on the debtor, the Court observes that although a travel ban was not listed in
section 45 of the Act among the compulsory measures which could be imposed by
the bailiff on a debtor, it was stated in that section that, apart from the
measures listed, the bailiff could take any other measures provided for by the
law on enforcement proceedings or by other federal laws in order to enforce the
writ of execution. In the present case the bailiffs’ service imposed the travel
ban with reference to the 1996 Federal Act on Leaving and Entering the Russian
Federation (Procedures), section 15(5) of which provided that the right of a
Russian citizen to leave the Russian Federation could be temporarily restricted
if he or she evaded obligations imposed on him or her by a court. The Court
therefore concludes that the travel restrictions imposed on the applicant had a
basis in domestic law.
As regards accessibility,
the Court observes that the legal acts in question satisfied that condition as
they were in the public domain.
In so far as the applicant complained of the
lack of foreseeability of the legal provisions in question, the Court accepts
that those provisions are rather general in terms and confer a wide discretion
on the bailiffs’ service. In particular, they leave them the discretion to
decide whether, in the particular circumstances of the case, it is necessary to
resort to travel restrictions or not. On the other hand, the circumstances in
which it may be necessary to apply those measures are quite variable, so that
it would scarcely be possible to formulate a law to cover every eventuality. In
any event, the safeguards against arbitrary interference were provided by the fact that the exercise of the discretion by the
bailiffs was subject to judicial review (see paragraph 50 above).
The Court agrees that the application of those
provisions could have resulted in some degree of uncertainty for the applicant
when the first travel restriction was issued in his regard in November 2003.
However, by the time the further bans were issued in June and December 2004 and
March and May 2005, he should have been able to foresee, to a degree that was
reasonable in the circumstances, that travel restrictions could be applied to
him again if he evaded paying the judgment debt, and could therefore have
regulated his conduct accordingly.
In view of the above, the Court considers that
in the present case the degree of discretion conferred on the domestic
authorities was compatible with the requirements of the Convention inherent in
the expression “in accordance with law”.
Having regard to the above, the Court is
satisfied that the interference with the applicant’s right to leave his country
was “in accordance with law”.
2. Whether the interference
pursued a legitimate aim
(a) The parties’ submissions
The Government claimed that the travel bans had been intended to secure the
enforcement of a judgment debt arising out of a claim by a private creditor and
had therefore pursued the legitimate aim of protecting the rights of others.
The applicant
submitted that the travel bans had not pursued any legitimate aim, but had a
purely punitive purpose.
(b) The Court’s assessment
The Court observes that it has already dealt
with complaints concerning travel bans imposed for failure
to pay a judgment debt to a private party and accepted that such restrictions
were intended to secure the interests of creditors and that, in principle, they
pursued a legitimate aim, namely the protection of others (see Ignatov v.
Bulgaria, no. 50/02, § 35, 2 July 2009, and Gochev v. Bulgaria, no.
34383/03, § 48, 26 November 2009). It does
not see any reason to hold otherwise in the present case. The Court
accordingly finds that the interference with the applicant’s right to leave his
own country pursued a legitimate aim, namely the protection of the rights of
others. The main issue to be determined in the present case is whether the
restrictions imposed on the applicant were “necessary in a democratic society”
in order to achieve that aim.
3. Whether the interference was “necessary in a
democratic society”
(a) The parties’ submissions
The Government maintained that the restrictions
imposed on the applicant had been necessary in a democratic society. The means
employed had been proportionate to the aims pursued. The authorities were under
a positive obligation to provide an effective mechanism for the enforcement of
judgments debts to be paid by private persons and for the protection of
creditors’ property rights. If they failed to do so, their responsibility under
Article 6 of the Convention could be engaged. The applicant had not paid the
judgment debt voluntarily and enforcement proceedings had therefore been
instituted. The bailiffs’ service had taken various measures to secure payment
of the judgment debt. However, all those measures had proved insufficient for
the enforcement of the judgment debt, in large part owing to the applicant’s
behaviour. As established by the decision of 19 October 2004 (see paragraph 11
above), the applicant had attempted to hide his property in order to avoid its
forfeiture in the enforcement proceedings. In the absence of any other means of
ensuring that the applicant honoured his debt, the bailiffs’ service had
decided to impose a travel ban on him.
The Government further pointed out that the
travel ban had been imposed on the applicant for a period of six months and had
been extended on three more occasions. Each of those extensions had been
limited to six months, unlike in the case of Gochev v. Bulgaria, where the applicant had been prohibited from
leaving the country for several years. The bailiffs’ service’s decisions
had been duly reasoned and had been regularly reviewed by the domestic courts. On
one occasion the domestic court quashed the bailiff’s decision (ruling of 3
March 2005) on the grounds that it had not indicated the period during which
the travel ban had to be applied to the applicant. The applicant had been aware
of the decisions taken in his respect since he had challenged almost all of
them in the courts. The documents concerning the enforcement proceedings at
issue had been destroyed after expiry of the statutory time-limit for storage
of documents.
The applicant submitted that the travel ban had
not been necessary in a democratic society. The authorities had the possibility
of seizing a debtor’s assets located in his or her country of residence or abroad
without the debtor’s physical presence. Also, preventing persons from leaving
the country could be counterproductive if they migrated to another country in
search of employment with the intention of using their future salary to honour
the debt. Furthermore, the Russian legal system did not provide individuals
with bankruptcy protection; therefore, persons who committed a tort and faced a
large judgment debt would be barred from leaving the country forever through a
series of six-month bans. The travel ban was used widely in Russia irrespective of the nature and amount of the debt. In the applicant’s case the
travel ban had been imposed for non-payment of a relatively small debt and
without any prior notice when he and his family had attempted to board a plane.
(b) The Court’s assessment
(i) The Court’s principles relating to assessment of
the necessity of restrictions on freedom of movement
. The
Court reiterates that interference will be considered “necessary in a democratic
society” for a legitimate aim if it answers a “pressing social need” and, in
particular, if it is proportionate to the legitimate aim pursued and if the
reasons adduced by the national authorities to justify it are “relevant and
sufficient”. While it is for the national authorities to make the initial
assessment in all these respects, the final evaluation of whether the
interference is necessary remains subject to review by the Court for conformity
with the requirements of the Convention (see, among other authorities, Handyside
v. the United Kingdom, 7 December 1976, § 48-50, Series A no. 24, and Nada
v. Switzerland [GC], no. 10593/08, § 181, ECHR 2012).
The Court
has examined the proportionality of travel restrictions which were imposed in
various contexts: a travel ban imposed as a measure of police supervision of a
person suspected of having connections with the Mafia (see Labita,
cited above, §§ 193-197); the seizure, as part of the on-the-spot investigation,
and subsequent confiscation of a passport of a person who was neither
prosecuted nor considered to be a witness in the criminal proceedings (see Baumann,
cited above, §§ 65-67); a prohibition on a bankrupt moving away from his place
of residence for the duration of the bankruptcy proceedings (see Luordo v.
Italy, no. 32190/96, §§ 96-97, ECHR 2003-IX); the seizure of
the applicant’s passport for refusal to pay a fine for a customs offence (see Napijalo
v. Croatia, no. 66485/01, §§ 78-82, 13 November 2003); an obligation not to
abscond imposed on a suspect pending criminal proceedings against him (see,
among many other examples, Fedorov and Fedorova v. Russia, no. 31008/02,
§§ 39-47, 13 October 2005; Antonenkov and Others v. Ukraine, no.
14183/02, §§ 59-67, 22 November 2005; Ivanov v. Ukraine, no.
15007/02, §§ 90-97, 7 December 2006; Hajibeyli v. Azerbaijan, no.
16528/05, §§ 60-69, 10 July 2008; Makedonski v. Bulgaria, no. 36036/04, §§ 39-46, 20 January 2011; Pfeifer
v. Bulgaria, no. 24733/04,
§§ 55-58, 17 February 2011; Prescher v. Bulgaria, no.
6767/04, §§ 47-52, 7 June 2011;
and Miażdżyk v. Poland, no. 23592/07, §§ 33-42, 24 January 2012); travel
restrictions imposed for refusal to pay a tax debt (see Riener v. Bulgaria, no. 46343/99, §§ 118-130, 23
May 2006); travel restrictions imposed on account of knowledge of State secrets
(see Bartik v. Russia, no. 55565/00, §§ 44-52, ECHR 2006-XV, and Soltysyak
v. Russia, no. 4663/05, §§
46-54, 10 February 2011); court
orders prohibiting minor children from being removed to a foreign country (see Diamante
and Pelliccioni v. San Marino, no. 32250/08, §§ 214-215, 27 September 2011); and a travel ban imposed on account of a breach of the immigration
rules of another country (see Stamose v. Bulgaria, no. 29713/05, §§ 33-37, 27 November 2012). The
Court has also examined restrictions which, as in the present case, were
imposed on the applicants for failure to honour a judgment debt to a private
party (see Ignatov, cited
above, §§ 36-41, and Gochev, cited above, §§ 49-57).
86. When making its assessment of the
proportionality of the travel restrictions imposed on the applicants in those
cases the Court had regard to various factors.
87. In a series of cases against Italy the
Court found that the travel restrictions, which were automatically imposed for
the whole duration of the bankrupcy proceedings and remained in force for very significant
periods ranging from thirteen years to more than twenty-four years, were disproportionate
even though there had been no indication that the applicant had wished to leave
his place of residence or that such permission had ever been refused (see Luordo,
cited above, § 96; Bassani v. Italy, no. 47778/99, §§ 23-25,
11 December 2003; Neroni v. Italy, no. 7503/02, §§ 26-28, 22 April
2004; and Goffi v. Italy, no. 55984/00, §§ 19-21, 24 March 2005). On the
other hand, in a case where the travel restriction was in place for a period of
six months the Court considered, bearing in mind the short duration of the
restriction, that it was proportionate to the aims pursued (see Diamante and Pelliccioni, cited
above, § 214).
In another group of cases, where an obligation
not to leave their place of residence was imposed in the context of criminal
proceedings against the applicants but was not applied automatically for the
whole duration of those proceedings and was significantly shorter than the one
in the Luordo case, the Court held that in the circumstances of those
cases the mere duration of the proceedings was insufficient to conclude that the
restriction was disproportionate and that it was therefore necessary to have
regard to other relevant factors. In particular, in the cases of Fedorov and
Fedorova (cited above, § 44) and Antonenkov and Others (cited above,
§ 64), the Court considered that it was relevant in assessing the
proportionality of the restriction to ascertain whether the applicants had actually
sought to leave their area of residence and had applied to the domestic
authorities with requests to that effect, and if so, whether permission to leave
the area had been refused.
In cases where the travel restrictions were imposed
on applicants who were not parties to any criminal, administrative or other
proceedings, the Court examined whether the grounds relied on by the domestic
authorities in imposing and extending the restrictions and/or in refusing to
lift them were relevant and sufficient (see Labita, cited above, §§
196-197; Baumann, cited above, § 65-67; and Napijalo, cited
above, §§ 78-82).
In the case of Soltysyak, cited above, in
which travel restrictions were imposed on the applicant on account of
his knowledge of State secrets, the Court took into consideration the existence
of a common European and international standard in the field.
In the case of Gochev (cited above,
§§ 49-50) the Court summarised the principles relating to the assessment
of the necessity of measures restricting freedom of movement as follows:
“49. With regard to the proportionality of a
restriction imposed on account of unpaid debts, the Court reiterates that it is
justified only so long as it furthered the pursued aim of guaranteeing recovery
of the debts in question (see Napijalo v. Croatia, no. 66485/01, §§
78 to 82, 13 November 2003). Furthermore, even were it justified at the outset,
a measure restricting an individual’s freedom of movement may become
disproportionate and breach that individual’s rights if it is automatically
extended over a long period (see Luordo v. Italy, no. 32190/96, §
96, ECHR 2003-IX; Földes and Földesné Hajlik v. Hungary, no. 41463/02, §
35, ECHR 2006-...; and Riener, cited above, § 121).
50. In any event, the domestic authorities are under
an obligation to ensure that a breach of an individual’s right to leave his or
her country is, from the outset and throughout its duration, justified and
proportionate in view of the circumstances. They may not extend for long
periods measures restricting an individual’s freedom of movement without
regular re-examination of their justification (see Riener, cited
above, § 124, and Földes and Földesné Hajlik, cited above, § 35).
Such review should normally be carried out, at least in the final instance, by
the courts, since they offer the best guarantees of the independence,
impartiality and lawfulness of the procedures (see Sissanis v. Romania,
no. 23468/02, § 70, 25 January 2007). The scope of the judicial review should
enable the court to take account of all the factors involved, including those
concerning the proportionality of the restrictive measure (see, mutatis
mutandis, Le Compte, Van Leuven and De Meyere v. Belgium, 23 June
1981, § 60, Series A no. 43) ...”
(ii) Application of those principles in the present
case
The Court agrees with the Government that in
order to comply with the requirements of Article 6 and Article 1 of Protocol
No. 1 the State authorities are obliged to provide the necessary assistance to
the creditor in the enforcement of court judgments issued against private
debtors. Such assistance may be provided, for example, through a bailiffs’
service or bankruptcy proceedings (see Anokhin v. Russia (dec.), 31 May
2007). However, the Court considers that the measures taken to provide such
assistance, in so far as they interfere with the rights protected under Article 2
of Protocol No. 4, must be necessary in a democratic
society.
93. Turning to
the circumstances of the present case, the Court observes that the applicant
was prohibited from leaving the country by a series of travel bans which were issued
between 2003 and 2005.
The Government put forward a number of reasons
which, according to them, had justified the imposition of travel restrictions on
the applicant. In particular, they claimed that the restrictions had been applied
to the applicant because he had not paid the judgment debt voluntarily; all
other measures had proved insufficient, in large part owing to the applicant’s
behaviour.
The Court observes that under section 15(5) of
the 1996 Federal Act on Leaving and Entering the Russian Federation
(Procedures), travel restrictions could be imposed on the debtor only if he
evaded the obligations imposed on him by a court. Furthermore, according to the
interpretation of those provisions by the Constitutional Court (see paragraph 36
above), the domestic authorities were under an obligation to justify the
necessity of the restrictions imposed on the applicant and not just to apply
those restrictions on formal grounds but also to take into account specific
factual circumstances, which, where necessary, could
be verified by the courts of general jurisdiction. It follows that the travel
restrictions could not be imposed automatically for failure to pay the judgment
debt, but only once it had been established that the imposition of such a
measure was necessary in the circumstances of the case.
The Court further observes that, under section
88 of the 1997 Federal Act on Enforcement Proceedings, in cases where a
decision taken by the bailiff in the framework of enforcement proceedings
affected the interests of the parties to those proceedings (creditor and
debtor), the bailiff was under an obligation to issue a ruling (“постановление”) to that effect and to indicate, among other things, the
grounds for the decision (see paragraph 49 above).
There is no doubt that in the present case the
bailiffs’ service’s decisions restricting the applicant’s right to leave the
country affected his interests and therefore those decisions should have been
taken in the form of rulings. However, in the present case most of the travel
restrictions were imposed on the applicant on the basis of documents in the
form of “demands” (“требования”)
or “orders” (“поручения”) issued by the bailiffs’ service for the attention of the Department
of the Interior and the Department of Border Control, and the domestic courts
reviewed the lawfulness of the restrictions as applied on the basis of those
documents. Only on one occasion did the bailiffs’ service impose a travel ban
on the applicant in the form of a ruling (the ruling of 3 March 2005), which
however, was later quashed by a court.
In its first decision the bailiffs’ service
requested the departments concerned to restrict the applicant’s right to leave
the country because he had not paid the judgment debt voluntarily. It did not
cite any other reasons for applying the measure. In particular, it did not
state that the applicant had evaded payment of the judgment debt by various means,
as suggested by the Government. Likewise, the bailiffs’ service did not explain
how the travel ban might serve the aim of collecting the debt, nor did it examine
the applicant’s individual situation and other relevant circumstances of the
case.
It is true that all the further restrictions
imposed on the applicant were based on fresh demands or orders issued by the
bailiffs’ service. However, the wording of those decisions did not evolve with
the passage of time. The bailiffs’ service repeatedly stated that the applicant’s
right to leave the country had to be restricted because he had not paid the
judgment debt. It follows that by sending those demands and orders to the
authorities responsible for internal affairs and border control the bailiffs’
service merely confirmed its initial demand to impose travel restriction on the
applicant and did not re-examine the justification for the continued restrictions
on the applicant’s freedom to leave the country. It therefore follows that from
the outset and throughout its duration, the restriction on the applicant’s
freedom to leave the country was based solely on the ground that he had not
paid the judgment debt voluntarily, and was extended automatically by the
bailiffs’ service without any reassessment of its justification.
As regards the judicial review of the
restrictions applied to the applicant, the Court notes that by a decision of 7
July 2005 the domestic courts quashed the bailiffs’ service’s ruling of 3 March
2005 on the grounds that it had not indicated the period during which the
restriction was to be applied. In all further decisions the
domestic courts merely stated that the applicant had not complied with the
judgment debt and, therefore, the bailiffs had lawful grounds for applying
travel restrictions in his regard. In none of their decisions did the domestic courts
assess the justification and proportionality of the travel restrictions imposed
on the applicant.
Having regard to the above, the Court considers
that the domestic authorities did not comply with their obligation to ensure
that any interference with the right of individuals to leave their own country is
justified and proportionate throughout its duration, in the particular circumstances
of the case. It therefore follows that the interference with the applicant’s right
to leave his country in the present case was not “necessary in a democratic
society”.
Accordingly, there has been a violation of
Article 2 §§ 2 and 3 of Protocol No. 4 in the present case.
II. OTHER ALLEGED
VIOLATIONS OF THE CONVENTION
The applicant complained under Article 6 § 3
(c) and (d) that the criminal proceedings initiated against him on 18 July 2005
for forgery of documents had been unfair. The Court observes that a person may
not claim to be a victim of a violation of his right to a fair trial under
Article 6 of the Convention which, according to him, occurred in the course of
proceedings in which he was acquitted or which were discontinued (see Osmanov
and Husseinov v. Bulgaria (dec.), nos. 54178/00 and 59901/00, 4 September
2003). The Court notes that the proceedings against the
applicant were discontinued on 17 May 2006 because the relevant limitation
period had expired. The Court considers that in these circumstances the
applicant can no longer claim to be a victim of a violation of his right to a
fair trial. It follows that this complaint must be rejected as
manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the
Convention.
III. APPLICATION OF
ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the
Convention or the Protocols thereto, and if the internal law of the High
Contracting Party concerned allows only partial reparation to be made, the
Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
The applicant
claimed 1,000 euros (EUR) in respect of pecuniary damage sustained as a result
of the cancellation of his trip to Turkey. He also claimed EUR 10,000 in
respect of non-pecuniary damage.
The Government considered that the applicant’s
claims were unreasonable and not supported by appropriate evidence.
The Court observes that the applicant’s claims
in respect of pecuniary damage are not supported by any evidence. In
particular, the Court has at its disposal documents relating to a trip planned
by the applicant to Egypt, not to Turkey. The Court therefore rejects those
claims. However, it awards the applicant EUR 2,000 in respect of non-pecuniary
damage.
B. Costs and expenses
The applicant also claimed EUR 5,500 for the
costs and expenses incurred before the domestic courts and before the Court, comprising
EUR 500 in costs and expenses related to this application and EUR 5,000 in
lawyer’s fees.
The Government contested
the applicant’s claims. They submitted that he had not provided any evidence in
support of his claims, such as a contract between himself and his lawyer.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these were actually and necessarily incurred and are reasonable
as to quantum. In the present case, regard being had to the documents in its
possession and the above criteria, the Court considers it reasonable to award
the sum of EUR 500 covering costs under all heads.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint under Article 2 of
Protocol No. 4 to the Convention concerning the restrictions imposed on the
applicant’s right to leave Russia admissible and the remainder of the application
inadmissible;
2. Holds that there has been a violation of
Article 2 §§ 2 and 3 of Protocol No. 4 to the Convention;
3. Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the following
amounts, to be converted into the currency of the
respondent State at the rate applicable at the date of settlement:
(i) EUR 2,000 (two thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 500 (five hundred euros), plus any tax
that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
4. Dismisses the
remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 11 July 2013, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle Berro-Lefèvre
Registrar President
