Résolution CM/ResDH(2012)156[1]
Ignatov, Gochev et Nalbantski contre Bulgarie
Exécution des arrêts de la Cour européenne des droits de l’homme
(Requête no 50/02, arrêt du 02/07/2009, définitif le 02/10/2009
Requête no34383/03, arrêt du 26/11/2009, définitif le 26/02/2010
Requête no30943/04, arrêt du 10/02/2011, définitif le 10/05/2011)
Le Comité des Ministres, en vertu de l’article 46, paragraphe 2, de la Convention de sauvegarde des droits de l’homme et des libertés fondamentales, qui prévoit qu’il surveille l’exécution des arrêts définitifs de la Cour européenne des droits de l’homme (ci-après nommées « la Convention » et « la Cour »),
Vu les arrêts définitifs, qui ont été transmis par la Cour au Comité dans les affaires ci-dessus et les violations constatées (voir document DH-DD(2012)912E)[2] ;
Rappelant l’obligation de l’Etat défendeur, en vertu de l’article 46, paragraphe 1, de la Convention, de se conformer aux arrêts définitifs dans les litiges auxquels il est partie et que cette obligation implique, outre le paiement de la satisfaction équitable octroyée par la Cour, l’adoption par les autorités de l’Etat défendeur, si nécessaire :
- de mesures individuelles pour mettre fin aux violations constatées et en effacer les conséquences, dans la mesure du possible par restitutio in integrum ; et
- de mesures générales permettant de prévenir des violations semblables ;
Ayant invité le gouvernement de l’Etat défendeur à informer le Comité des mesures prises pour se conformer aux obligations susmentionnées ;
Ayant examiné le bilan d’action fourni par le Gouvernement indiquant les mesures adoptées afin d’exécuter les arrêts y compris les informations fournies en ce qui concerne le paiement de la satisfaction équitable octroyée par la Cour (voir document DH-DD(2012)912E) ;
S’étant assuré que toutes les mesures requises par l’article 46, paragraphe 1, ont été adoptées ;
DECLARE qu’il a rempli ses fonctions en vertu de l’article 46, paragraphe 2, de la Convention dans ces affaires et
DECIDE d’en clore l’examen.
Action report
3 cases against Bulgaria concerning freedom of movement
Ignatov, application no. 50/02, judgment of 02/07/2009, final on 02/10/2009
Gochev, application no. 34383/03, judgment of 26/11/2009, final on 26/10/2010
Nalbantski, application no. 30943/04, judgment of 10/02/2011, final on 10/05/2011
1) DESCRIPTION OF THE CASES
The three cases above concern restrictions of the applicants’ freedom to leave the territory of Bulgaria imposed on different legal grounds.
In the cases of Ignatov and Gochev the applicants were barred from leaving the country on the ground that they had failed to pay debts towards private persons.
In the case of Ignatov the impugned measure was in force from 1999 to 2001 and was maintained during that period even though the applicant’s debt had been settled and the travel ban had apparently lost its justification. In the case of Gochev the ban to leave the country was in force from 2001 to 2008. It had been imposed automatically and without an individual evaluation of the applicant’s situation and ability to pay, and had not been subject to regular reassessment.
In both cases the European Court found violations of Article 2 of Protocol No. 4 (freedom of movement) due to the authorities’ failure to ensure that any interference with an individual’s right to leave his or her country is, from the outset and throughout its duration, justified and proportionate in the light of the circumstances. In the case of Ignatov the Court found in addition a violation of Article 13 (right to effective remedy), noting, in particular, that the applicant had not been able to challenge the measure taken against him as he had never been duly informed of it.
The case of Nalbantski concerns an automatic ban on the applicant’s leaving the country on the ground that he had a criminal conviction and had not yet been rehabilitated. The ban was imposed in 2004 and remained in force until an unspecified date, but not later than 2010 when legislative amendments put an end to the situation (see below). The European Court found a violation of Article 2 of Protocol No. 4 because the domestic authorities had not analyzed the individual situation of the applicant and had not provided sufficient justification for the measure. It held that the mere fact that an individual has been criminally convicted and has not yet been rehabilitated cannot justify the imposition of restrictions on his or her freedom to leave his or her country.
In addition, in this case the Court found violations of Articles 6 § 1 and 13, considering that the length of the criminal proceedings against the applicant had been excessive and that he had had no effective remedies in that regard.
2) INDIVIDUAL MEASURES
In all cases the travel bans have been lifted. The criminal proceedings in the case of Nalbantski ended in 2004.
The European Court awarded the applicants non-pecuniary damage for the suffering and distress they experienced. The Government has paid the sums awarded.
The Government thus considers that no further individual measures are necessary in the case.
3) GENERAL MEASURES
As concerns the general measures in these cases, the Government points out to the following developments:
a) the cases of Ignatov and Gochev
In these cases the travel bans were based on the International Passports Act, now repealed, and after that on the Bulgarian Personal Documents Act of 1998. At the time, the Bulgarian Personal Documents Act provided that the Ministry of the Interior could impose a prohibition on leaving the country on any individual who had debts established by judicial means, exceeding BGN 5,000, towards other physical or legal persons. In 2009 that provision (namely, section 75(6) of the Act) was amended to provide that the Ministry of the Interior was obliged to impose a prohibition on leaving the country on any individual who owed “substantial amounts” to other physical or legal persons.
In 2011 the Ombudsman challenged the provision of section 75(6) of the Bulgarian Personal Documents Act before the Constitutional Court, which, in a judgment of 31/03/2011, declared that provision unconstitutional. It found that the provision pursued a legitimate aim, namely the protection of the rights of others and of constitutional principles, but was phrased in a manner which was too wide, as it failed to distinguish between debtors who had acted in bad faith and could be influenced by such a measure and bona fide debtors. In the latter case a travel ban would only be of a punitive character and could even hamper the collection of the debt. In addition, the Constitutional Court referred to the provision of Article 2 of Protocol No. 4 and to the Gochev judgment discussed here.
Under Bulgarian law once the Constitutional Court has declared a legal provision unconstitutional, it is not to be applied anymore. Thus, there is currently no legal ground for imposing measures such as the ones in the Ignatov and Gochev cases.
b) the case of Nalbantski
In that case the travel ban was based on section 76(2) of the Bulgarian Personal Documents Act, which, at the time, provided that a person who had been convicted of a willful offence and had not been rehabilitated could be barred from leaving the country and his international passport could be taken away. On 01/10/2009 that provision was repealed as it was considered to run counter to regulations of the European Union. A transitional provision which entered into force on 10/04/2010 specified that within three months of its entry into force all existing measures previously imposed under section 76(2) would cease to have effect.
Thus, the Government is of the view that the reason for the violation found by the Court in the present case has been removed and that no future similar violations are possible.
As to the violation of the applicant’s rights under Articles 6 § 1 and 13, concerning the length of the criminal proceedings against him, the Government notes that its efforts to resolve these problems are being examined by the Committee of Ministers in the framework of the group of Kitov and the pilot judgment in the Dimitrov and Hamanov case and that the present case raises no separate issues.
c) Conclusion
On the basis of the considerations above the Government is of the view that no further general measures are necessary in these cases.
[1] Adoptée par le Comité des Ministres le 6 décembre 2012 lors de la 1157e réunion des Délégués des Ministres.
[2] En anglais uniquement
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