Communicated on 28 August 2015
FIRST SECTION
Application no. 43614/14
Andrey Vladimirovich CHEREPANOV
against Russia
lodged on 31 May 2014
STATEMENT OF FACTS
The applicant, Mr Andrey Vladimirovich Cherepanov, is a Russian national who was born in 1962 and lives in Moscow.
A. Circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 2012 a certain N. brought court proceedings against the applicant in which he sought to recover a sum of money from the applicant.
On 14 May 2012 the Dorogomilovskiy District Court, Moscow (“the District Court”), awarded 45,460.21 Russian roubles (“RUB”) to N., to be paid by the applicant.
On 16 October 2012 the District Court issued a writ of execution.
On 13 November 2012 the applicant received a copy of the judgment of 14 May 2012.
On 27 February 2013 the District Court granted the applicant’s request for the reinstatement of the time-limit for lodging an appeal against the judgment of 14 May 2012.
It appears that on an unspecified date the applicant’s appeal against that judgment was dismissed.
By a ruling of 14 January 2013 the Dorogomilovskiy bailiffs’ service, Moscow (“the bailiffs’ service”), initiated enforcement proceedings. The applicant was invited to voluntarily comply with the judgment debt within three days of the date on which he received a copy of that ruling. In particular, he was requested to transfer the amount of the debt either to N.’s bank account or to the account of the bailiffs’ service.
On the same date the bailiffs issued a ruling restricting the applicant’s right to leave the country for a period of six months on the grounds that the judgment creditor had asked for such restriction to be imposed on the applicant. The ruling was based on the 2007 Federal Act on Enforcement Proceedings (sections 6, 14, 30, 64, 67 and 68) and the 1996 Federal Act on Leaving and Entering the Russian Federation (Procedures) (section 15(5)).
On 25 February 2013 the bailiffs’ service sent a copy of that ruling to the applicant. The applicant received it only on 12 March 2013.
The applicant, not having been aware until 12 March 2013 of the travel restriction imposed on him, decided to visit his one year old daughter, who lives in Italy.
However, on 2 March 2013, the applicant was stopped by border guards when he attempted to board a plane.
On 13 March 2013 the applicant paid the judgment debt.
On 21 March 2013 the bailiffs’ service lifted the travel restriction and terminated the enforcement proceedings.
On an unspecified date the applicant challenged in court the bailiffs’ ruling of 14 January 2013 imposing a travel ban on him. He submitted, in particular, that the ruling had not been duly reasoned since he had never evaded the obligations imposed on him by the judgment of 14 May 2012. Furthermore, in breach of statutory requirements, he had not been duly informed of the travel restriction imposed on him since he had received the bailiffs’ ruling only on 12 March 2013.
On 12 September 2013 the District Court examined and dismissed the applicant’s complaint. The District Court held, in particular, that the bailiffs had imposed the travel restriction on the applicant in accordance with section 30 of the 2007 Federal Act on Enforcement Proceedings, which allows the imposition of such restriction (upon a request from a judgment creditor) before the expiry of the time-limit set for voluntary payment of the judgment debt.
In his appeal against the judgment of 12 September 2013, the applicant submitted that the District Court, in taking its decision, had not applied section 15 of the 1996 Federal Act on Leaving and Entering the Russian Federation (Procedures), which provided that the right of a Russian citizen to leave the Russian Federation could be temporarily restricted only when it had been established that he or she had evaded obligations imposed on him or her by a court.
On 16 December 2013 the Moscow City Court upheld the judgment of 12 September 2013.
On 10 February 2014 the applicant lodged a cassation appeal with the Presidium of the Moscow City Court.
On 17 March 2014 a judge of the Moscow City Court refused to refer the applicant’s case to the cassation court for examination on the merits.
B. Relevant domestic law and practice
1. 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 to freely choose his/her 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.
2. 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 has 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 have settled the matter (section 15(5)).
3. The 2007 Federal Act on Enforcement Proceedings, in force since 1 February 2008, as worded at the material time
Section 30 of the Act describes the procedure for instituting enforcement proceedings. In particular, it provides that enforcement proceedings may be initiated by the bailiffs’ service upon the request of a judgment creditor (section 30(1)). When submitting a request for enforcement proceedings to be instituted, the judgment creditor may ask the bailiffs’ service to seize the debtor’s property in order to secure the enforcement of the judgment debt. The judgment creditor can also ask for the application of restrictions provided for in the Act (section 30(2)). In its decision to institute enforcement proceedings the bailiffs’ service sets a time-limit for voluntary compliance with the judgment (section 30(11)). A copy of the bailiff’s decision to institute enforcement proceedings shall be sent to the judgment creditor, the debtor and to the court (or other body or State official that issued the writ of execution) no later than the day following the day on which the decision to institute enforcement proceedings was issued (section 30(17)).
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 bailiffs’ service has set a time-limit for voluntary compliance with the decision (and the debtor has failed to comply within that time-limit); and the debtor has no valid reason for not complying with the judgment (section 67(1)). A travel restriction may also be imposed upon the request of the judgment creditor, which must be submitted together with his request to initiate enforcement proceedings (paragraph 2).
4. Case-law of the Constitutional Court of the Russian Federation
In its decision of 3 July 2014 (no. 1563-O), the Constitutional Court refused to accept for examination a complaint lodged by a certain Z. concerning whether section 30(2) and section 67(2) of the 2007 Federal Act on Enforcement Proceedings were compatible with the Constitution.
In particular, the Constitutional Court held that section 67(2) of that Act could not be applied in the course of enforcement proceedings independently from the general provisions on the application of temporary travel restrictions set out in section 67(1) and in the absence of confirmation that the debtor had been notified of the enforcement proceedings instituted in his respect and of his obligation to voluntarily comply with the writ of execution within the time-limit set by the bailiffs’ service. The bailiffs’ service was entitled to impose travel restrictions only in cases in which the debtor had not complied with the writ of execution within the statutory five-day period which ran from the date on which the debtor received the decision to initiate enforcement proceedings.
The Constitutional Court further held that the closely linked provisions of section 30(2) and section 67(2) of the 2007 Federal Act on Enforcement Proceedings did not presuppose that the bailiffs’ service could grant the judgment creditor’s request for the imposition of a travel ban on the debtor at the same time as he took the decision to initiate enforcement proceedings (that is to say, before the expiry of the deadline set for voluntarily enforcement of the writ of execution) and also before he received confirmation that the debtor had been aware of the enforcement proceedings initiated in his respect and had evaded voluntary compliance with the writ of execution.
COMPLAINT
The applicant complains under Article 2 of Protocol No. 4 to the Convention that his right to leave the Russian Federation was violated by a ban imposed by the bailiffs’ service, such ban to run until he paid the judgment debt to a private person. In particular, he considers that the travel ban was applied to him automatically, without his having been given the possibility to voluntarily pay the judgment debt.
QUESTIONS TO THE PARTIES
1. Has the applicant exhausted all effective domestic remedies in respect of his complaint under Article 2 of Protocol No. 4, as required by Article 35 § 1 of the Convention?
2. Has the applicant complied with the six-month time-limit laid down in Article 35 § 1 of the Convention in respect of his complaint under Article 2 of Protocol No. 4?
3. Was any restriction placed on the applicant’s freedom to leave Russia, as guaranteed by Article 2 § 2 of Protocol No. 4? If so, was that restriction in accordance with the law and necessary in terms of Article 2 § 3 of Protocol No. 4 (see Gochev v. Bulgaria, no. 34383/03, §§ 44-57, 26 November 2009, and Khlyustov v. Russia, no. 28975/05, §§ 92-102, 11 July 2013)? In particular:
(a) What was the legal basis for imposing the international travel ban on the applicant? Was that legal basis accessible for consultation by the applicant and foreseeable as to its effect?
(b) Did the travel ban imposed on the applicant pursue any legitimate aim?
(c) During which period was the restriction on leaving the country applied to the applicant? On which date was the ban imposed on the applicant for the first time, when was it extended, and when was it lifted?
(d) Did the authorities (either the bailiffs’ service or some other authority) duly notify the applicant each time a restriction on travel abroad was imposed on him? The Government are requested to provide copies of those notifications, with evidence confirming that the applicant received them.
(e) What measures did the bailiffs’ service take to recover the debt from the applicant before imposing the travel ban on him and after they had imposed it on him?
(f) Were the bailiffs’ orders to impose the travel ban on the applicant duly reasoned?
(g) Did the scope of the judicial review of the bailiffs’ orders to impose a travel ban on the applicant satisfy the requirements of Article 2 of Protocol No. 4?
4. In the light of the answers to the above questions, was there a violation of the applicant’s freedom to leave the territory of the respondent State, contrary to Article 2 of Protocol No. 4?
The Government are required to provide a copy of the judgment of the Dorogomilovskiy District Court of Moscow of 14 May 2012, of the appeal decision adopted on the applicant’s appeal against that judgment, and copies of all documents relating to the enforcement proceedings initiated on 14 January 2013.
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