Information Note on the Court’s case-law 224
December 2018
Mursaliyev and Others v. Azerbaijan - 66650/13, 24749/16, 43327/16 et al.
Judgment 13.12.2018 [Section V]
Article 2 of Protocol No. 4
Article 2 para. 2 of Protocol No. 4
Freedom to leave a country
Imposition of travel bans on witnesses in pending criminal proceedings without legal basis: violation
Facts – On various dates between 2012 and 2016, the investigating authorities issued travel bans on the applicants, all witnesses in pending criminal proceedings, preventing them from leaving the country. The applicants challenged the travel bans, either by lodging a complaint with the administrative courts or by applying to the ordinary courts for a judicial review. The domestic courts, with the exception of one of the applications which had been dismissed on the merits, refused to examine the complaints, finding that they were not competent to examine the lawfulness of travel bans imposed by the investigating authorities.
Law – Article 2 § 2 of Protocol No. 4: The Government did not refer to any provision of domestic law which would serve as a legal basis for the imposition of travel bans on persons who were witnesses in criminal proceedings. Furthermore, the relevant provisions of the Migration Code, which regulated the right of Azerbaijani nationals to leave the country, contained an exhaustive list of circumstances in which this right may be temporarily restricted and none of those circumstances corresponded to the applicants’ situation. Moreover, Article 1 of the Passports Act, in force at the material time, had provided for a temporary restriction on the right to leave the country but only if the person concerned was a suspected or accused person in criminal proceedings, convicted or subjected to compulsory medical measures.
The investigating authorities had imposed the travel bans on the applicants in the absence of any judicial decision. Further, the domestic courts, in their review of the impugned measures, had failed to specify the legal basis for the imposition of the travel bans, contenting themselves merely with refusing to examine the impugned actions on the merits. In the only case examined on the merits, the relevant court had found that the restriction on the applicant’s right to leave the country was justified, without referring to any provisions of domestic law.
Given the above-mentioned, the interference with the applicants’ right to leave their country had not been “in accordance with law”.
Conclusion: violation (unanimously).
Article 41: EUR 5,000 to each applicant in respect of non-pecuniary damage.
(See also Stamose v. Bulgaria, 29713/05, 27 November 2012, Information Note 157; and Riener v. Bulgaria, 46343/99, 23 May 2006, Information Note 86)
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This summary by the Registry does not bind the Court.
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