Information Note on the Court’s case-law No. 124
November 2009
Gochev v. Bulgaria - 34383/03
Judgment 26.11.2009 [Section V]
Article 2 of Protocol No. 4
Article 2 para. 1 of Protocol No. 4
Freedom of movement
Automatic, unlimited ban preventing a debtor from leaving the country: violation
Facts – In 1999 and 2001 enforcement orders were issued against the applicant at the request of private companies to which he owed money. In 2001 and 2002, in accordance with the Bulgarian Identity Documents Act 1998, the director of the Department for Identity Documents ordered the applicant's passport to be withdrawn indefinitely, and instructed the competent authorities not to issue him with a new one. The applicant made several appeals to the Supreme Administrative Court, but to no avail: the court upheld the impugned decisions. His creditors having made no further claims, the enforcement proceedings against the applicant were discontinued and he has been free to leave the country since 2008.
Law – Article 2 of Protocol No. 4: The imposition of a measure such as that in the instant case was intended to guarantee the interests of creditors and in principle pursued the legitimate aim of protecting the rights of others. The applicant had been prohibited for more than six years from leaving the territory. The parties had not submitted detailed information on the conduct of the enforcement proceedings which had served as the justification for the restriction on the applicant’s freedom of movement. It was consequently impossible to assess whether or not the steps taken by the authorities and creditors to recover the debts had been sufficient, or to evaluate the applicant’s capacity to pay the amounts due to his creditors. Nor had those circumstances been discussed in the decisions and judgments of the domestic authorities. The Court was therefore unable to determine whether the imposition and maintenance of the restriction over a considerable period had been objectively justified by the aim of guaranteeing recovery of the debts. On the other hand, it considered that the facts of the case suggested that the applicant had been subjected, from the outset, to a measure of an automatic nature. The measure in question had been imposed by the director of the Department for Identity Documents without a request for explanations by the applicant concerning his personal situation or even about the circumstances surrounding the non-payment of his debts, and without these issues being examined. Thus, the administrative body had not taken account of all the relevant information in order to ensure that the restriction on the applicant’s freedom of movement was justified and proportionate in the light of the circumstances of the case. The Court further noted that the director’s decisions to impose a prohibition on leaving the territory had been examined by the Supreme Administrative Court. In so far as that court had held that it did not have jurisdiction to rule on the appropriateness of imposing such measures, the Court considered that the scope of the judicial review also failed to satisfy the requirements of Article 2 of Protocol No. 4. As to whether the domestic authorities had fulfilled their duty regularly to re-examine the measures restricting the applicant’s freedom of movement, the Court noted that no re-examination of the impugned measures had been carried out following the Supreme Administrative Court’s confirmation of the decisions of the director. It followed that the applicant had been subjected to measures of an automatic nature, with no limitation on their scope or duration. The Bulgarian authorities had therefore failed in their obligation under Article 2 of Protocol No. 4 to ensure that any interference with an individual’s right to leave his or her country was, from the outset and throughout its duration, justified and proportionate in the light of the circumstances.
Conclusion: violation (unanimously).
Article 41: EUR 5,000 in respect of non-pecuniary damage.
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This summary by the Registry does not bind the Court.
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