Information Note on the Court’s case-law No. 86
May 2006
Riener v. Bulgaria - 46343/99
Judgment 23.5.2006 [Section V]
Article 2 of Protocol No. 4
Article 2 para. 2 of Protocol No. 4
Freedom to leave a country
Travel ban because of unpaid taxes: violation
Article 8
Article 8-1
Respect for private life
Travel ban because of unpaid taxes: violation
Article 13
Effective remedy
Travel ban because of unpaid taxes: violation
Facts: At the relevant time the applicant held both Austrian and Bulgarian nationality. She had business interests in Bulgaria and spent most of her time there. She amassed tax debts to a considerable amount. This remained unpaid. In March 1995, at the request of the tax authorities, the passport authority imposed a travel ban under the Law on Passports for Travelling Abroad (which applied to Bulgarian nationals only). In April 1995, the applicant’s Austrian passport was seized at the border when she tried to cross into Greece, and a travel ban was impose on her under the Law on the Sojourn of Aliens. The travel ban was lifted in August 2004, after the applicant’s tax debts had been extinguished through lapse of time. The applicant was allowed to renounce her Bulgarian nationality in December 2004, having been met with refusals on several occasions before then. Protocol No. 4 has been in force for Bulgaria since November 2000.
Law: Article 2 of Protocol No. 4 – The travel ban constituted an interference by a public authority with the applicant’s right to leave the country. Despite a certain ambiguity as to the applicable legislation, this interference had a basis in Bulgarian law. Its aim was legitimate, namely the maintenance of ordre public and the protection of the rights of others. The public interest in recovering unpaid tax of such an amount could warrant appropriate limitations on the applicant’s rights. States have a certain margin of appreciation to frame and organise their fiscal policies and make arrangements to ensure that taxes are paid. However, it follows from the principle of proportionality that a restriction on the right to leave one’s country on grounds of unpaid debt can only be justified as long as it serves its aim – recovering the debt. That means that such a restriction cannot amount to a de facto punishment for inability to pay. The authorities are not entitled to maintain over lengthy periods restrictions on the individual’s freedom of movement without periodic reassessment of their justification in the light of factors such as whether or not the fiscal authorities had made reasonable efforts to collect the debt through other means and the likelihood that the debtor’s leaving the country might undermine the chances to collect the money. In the applicant’s case it does not appear that the fiscal authorities actively sought to collect the debt, either before or after the entry into force for Bulgaria of Protocol No. 4 to the Convention. Periodic “confirmations” of the travel ban were not based on analysis of the applicant’s attitude, on information about her resources or any concrete indication that the chances for recovery would be jeopardised if she were allowed to leave the country. The fact that the applicant had a family abroad was not taken into consideration. Neither the administrative decisions related to the travel ban, nor the courts’ judgments upholding them contained any proportionality analysis. The “automatic” nature of the travel ban ran contrary to the authorities’ duty under Article 2 of Protocol No. 4 to take appropriate care that any interference with the right to leave one’s country should be justified and proportionate throughout its duration, in the individual circumstances of the case. Moreover, the Bulgarian authorities never clarified the date on which the relevant prescription period expired and made divergent calculations of the amount of the debt. The manner in which the authorities handled the yearly “confirmations” and the prescription question – through internal notes that were not communicated to the applicant – is difficult to reconcile with the legal certainty principle, inherent in the Convention. In this respect the relevant law did not provide sufficient procedural safeguards against arbitrariness. Violation of Article 2(2) of Protocol No. 4.
Article 8 – In so far as the complaint under Article 2 of Protocol No. 4 coincides with that under Article 8, not necessary to examine the same facts under this Article also. As regards the rejection of the applicant’s request to be allowed to renounce her Bulgarian nationality, the Court considers that no right to renounce citizenship is guaranteed by the Convention or its Protocols. Nevertheless, the Court cannot exclude that an arbitrary refusal of a request to renounce citizenship might in certain very exceptional circumstances raise an issue under Article 8 of the Convention if such a refusal has an impact on the individual’s private life. In the present case the impugned refusal did not entail any legal or practical consequences adversely affecting the applicant’s rights or her private life. No violation of Article 8, Article 13 inapplicable.
Article 13 taken together with Articles 8 of the Convention and 2 of Protocol No. 4 – The applicants’ complaints under Article 8 and Article 2 of Protocol No. 4 to the Convention in respect of the prohibition against her leaving Bulgaria were arguable. Once satisfied that that she had not paid, however, the courts and the administrative authorities automatically upheld the travel ban against the applicant: all other circumstances of the case were considered irrelevant and no attempt was made to assess whether the continuing restrictions after a certain lapse of time were still a proportionate measure, striking a fair balance between the public interest and the applicant’s rights. A domestic appeals procedure cannot be considered effective within the meaning of Article 13 of the Convention, unless it affords a possibility to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. Violation.
Article 41 – Pecuniary damage: claims dismissed; non-pecuniary damage: EUR 5,000 awarded; costs and expenses: claims accepted in part.
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This summary by the Registry does not bind the Court.
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