Prohibition to leave the country due to debts! The impossibility of reviewing the measure until full payment, violated the right to freedom of movement!
JUDGMENT
Stetsov v. Ukraine 11.05.2021 (app. no. 5170/15)
SUMMARY
The case concerned a ban on leaving the country imposed on Mr Stetsov on account of a failure to
reimburse a debt established by a judgment. According to domestic law at the material time, that
prohibition could not be lifted until the full amount of the debt had been reimbursed. The ban had
thus lasted for at least four years.
As regards the restrictions imposed on the grounds of unpaid debts, the Court emphasised that such
measures could only be justified if they pursued the aim of guaranteeing the recovery of the debts in
question. Accordingly, the authorities could not extend the restrictions for long amounts of time
without a periodical review of their justification.
In the present case, the Court considered that Mr Stetsov had been subjected to measures which
had been insufficiently justified and could not have been re-examined or reviewed until the strict
deadline constituted by the date of full reimbursement. The Ukrainian authorities had therefore
failed to honour the obligation to ensure that any interference with a person’s right to leave his
country was justified and proportionate vis-à-vis the circumstances, right from the outset and for the
duration of the interference.
Nevertheless, the Court took note of the 2017 and 2018 reform of civil procedure, which allowed
debtors to bring proceedings to lift travel restrictions. That reform had, however, come into effect
after the events which had given rise to Mr Stetsov’s application.
PROVISION
Article 2 of the 4rth Additional Protocol
PRINCIPAL FACTS
The applicant, Oleg Nikolayevich Stetsov, is a Ukrainian national who was born in 1969 and lives in
Dergachi (Ukraine).
In 2008 Mr Stetsov had stood surety for a loan contract between a bank and a commercial company.
At a later date, following the company’s failure to reimburse the loan, the bank sued Mr Stetsov in
order to recover the remaining debt and the late-payment penalties. In 2014 a court of appeal
allowed the bank’s action. In the same year Mr Stetsov was prohibited from leaving the country until
he had fully paid off the debt. The latter prohibition was ordered by the Kyiv Court of Appeal.
Subsequently Mr Stetsov submitted several requests to lift the prohibition on leaving the country,
but they were all dismissed on the grounds that the prohibition could only be lifted when the debt
had been reimbursed in its entirety.
Relying on Article 2 of Protocol No. 4 (freedom of movement) to the Convention, Mr Stetsov
complained of an infringement of his freedom of movement and of his right to leave the country
THE DECISION OF THE COURT…
Article 2 of Protocol No. 4 (freedom of movement)
The Court noted that Mr Stetsov had been banned from leaving the country for at least four years. It
considered that this ban affecting the applicant’s right to freedom of movement amounted to an
interference for the purposes of Article 2 of Protocol No. 4. Such interference was prescribed by law
(section 6 of the Law on the procedure for entry into and departure from Ukrainian territory in
respect of Ukrainian nationals) and pursued a legitimate aim (protection of the rights of others).
As regards the proportionality of the interference, the Court reiterated that even where a measure
restricting an individual’s freedom of movement was originally justified, it could become
disproportionate if it was automatically extended over a long period.
With more specific regard to restrictions imposed for reasons of unpaid debts, the Court pointed out
that such measures were only justified if they pursued the aim of guaranteeing the recovery of the
debts in question. Accordingly, the authorities could not extend the restrictions for very long
periods without a periodical review of their justification.
The Court considered, in the light of the proportionality principle, that in addition to being difficult
to establish and leaving a wide margin for subjectivity, the debtor’s intention in cases of nonpayment of the judgment debt could not be the sole grounds justifying the impugned restriction where it continued beyond a brief initial period. Indeed, the competent department should be
capable of explaining how the travel ban might help recover the debt, having regard to the
applicant’s particular situation and any other specific circumstances of the case.
In Mr Stetsov’s case, according to the national authorities who had initiated and authorised the
measure in question, neither the court nor the bailiff had been competent to lift the prohibition or
to review its expediency and effectiveness. It transpired from the domestic law at the time and from
the position taken by the national authorities that once the prohibition had been imposed, it could
only be lifted when the debt had been fully reimbursed by Mr Stetsov. In the Court’s view, such
provisions were contrary to Article 2 of Protocol No. 4 to the Convention.
Nevertheless, the Court took note of the 2017 and 2018 reform of civil procedure (Article 441 of the
Code of Civil Procedure), which allowed debtors to bring proceedings to lift travel restrictions. That
reform had, however, come into effect after the events which had given rise to the present
application.
Having regard to those considerations, the Court held that Mr Stetsov had been subjected to
measures which had been insufficiently justified and could not have been re-examined or reviewed
until the deadline constituted by the date of full reimbursement. It therefore concluded that the
Ukrainian authorities had failed to honour its obligation under Article 2 of Protocol No. 4 to the
Convention to ensure that any interference with a person’s right to leave his country was justified
and proportionate vis-à-vis the circumstances, right from the outset and for the duration of the
interference.
There had therefore been a violation of Mr Stetsov’s right to freedom of movement.
Just satisfaction (Article 41)
The Court held that Ukraine was to pay Mr Stetsov 1,000 euros (EUR) in respect of non-pecuniary
damage and EUR 850 in respect of costs and expenses
