Information Note on the Court’s case-law No. 93
January 2007
Sissanis v. Romania - 23468/02
Judgment 25.1.2007 [Section III]
Article 2 of Protocol No. 4
Article 2 para. 2 of Protocol No. 4
Freedom to leave a country
Inability to travel abroad as a result of an entry arbitrarily made in passport: violation
Facts: The applicant, in connection with criminal proceedings against him, was twice prohibited from leaving the country. On the first occasion a preventive measure was adopted by the police, who ordered him not to leave Romanian territory and stamped his passport with the letter “C”. After a thirty-day period in which he had been barred by the public prosecutor from leaving the country, he applied for this mark to be removed from his passport and the request was granted by the court of first instance. New criminal proceedings were subsequently brought against the applicant. The police asked for his passport to be stamped with the letter “C” and the public prosecutor then decided that he should be held in custody for thirty days. The county court sentenced him to immediate imprisonment and remanded him in custody pending determination of his appeal. The Court of Appeal allowed the appeal and ordered his release, then quashed the lower court's judgment and remitted the case to the provincial court, which acquitted him. He made various applications to various domestic authorities seeking to have the letter “C” removed from his passport. He claimed that any preventive measure prohibiting someone from leaving the country had to be ordered by a member of the State legal service, whereas the mark in his passport had been stamped on the instructions of the police. He was told that the applicable law in force at the time of the measure did not require that it be ordered by a member of the State legal service. Moreover, the applicant was criticised for not adducing evidence that the criminal proceedings against him had ended or that he had been acquitted. After several of his applications had either been dismissed or sent back, he ultimately requested the provincial court to annul the administrative decision to stamp the letter “C” in his passport and sought an award for pecuniary and non-pecuniary damage. The court partly granted his claims, ordering the removal of the mark, but refused to make an award for damage. This final judgment was executed by the stamping of the letter “L” in the applicant's passport.
Law: Inadmissible in respect of the first measure, as the complaint had been lodged out of time, and admissible in respect of the second.
A measure by means of which an individual was dispossessed of an identity document such as a passport amounted to an interference with the exercise of liberty of movement. Although the applicant's passport had not been confiscated he had not been able to make use of that travel document in order to leave the country. He had thus suffered a restriction on the exercise of his right. The impugned measure had to have some basis in domestic law, which had to be accessible to the person concerned and foreseeable as to its effects. The domestic law did not lay down with sufficient precision the conditions in which the preventive measure prohibiting someone from leaving the country could be imposed. The impugned statutory provision was vague as it simply stated that a foreigner against whom criminal proceedings had been brought could only leave the country after discontinuance of the proceedings or acquittal, or, in the event of conviction, after a sentence had been served. It did not identify the authority empowered to impose such a measure. Moreover, although the relevant authorities were empowered to authorise interference with aliens' freedom of movement, the grounds for doing so were not defined with sufficient precision. Interference by the executive authorities with an individual's rights had to be subject to an effective control which should normally be assured by the judiciary, at least in the last resort. Thus, the procedure for applying the preventive measure consisting in an order not to leave the country did not provide such safeguards, since the law did not lay down any review procedure, whether at the time the measure was imposed or afterwards. In reality, the preventive measure in question was an automatic measure applied for an indeterminate period and it thus interfered with the rights of the individual. The domestic law did not indicate with sufficient clarity the extent or conditions of the authorities' power of discretion in the area at issue. Lastly, the law, having been declared unconstitutional, had been superseded by a law providing that all preventive orders prohibiting someone from leaving the country had to be made by a member of the State legal service. The preventive measure, having been imposed by the police, had been in breach of the applicable domestic law, including the Constitution. Admittedly, the provincial court had rescinded the preventive measure barring the applicant from leaving the country because no measure restricting his liberty had been ordered by a member of the State legal service. However, the court had not awarded any compensation for the damage sustained by the applicant as a result of the unlawful extension of the preventive measure. Furthermore, it had not been suggested to the applicant that he could have availed himself of any other domestic remedy in order to seek compensation. Up to the time when the authorities lifted the preventive measure, the infringement of the applicant's freedom of movement had not been “in accordance with the law”. In these circumstances the Court did not need to continue with the examination of the applicant's complaint to establish whether the interference had pursued a legitimate purpose and had been necessary in a democratic society.
Conclusion: violation (unanimously)
Article 41 – EUR 5,000 for non-pecuniary damage.
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This summary by the Registry does not bind the Court.
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