European Court of Human Rights

 

 

 

THIRD SECTION

 

 

 

 

 

 

 

CASE OF CHEREPANOV v. RUSSIA

 

(Application no. 43614/14)

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

6 December 2016

 

 

 

 

 

 

 

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

 




In the case of Cherepanov v. Russia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

          Luis López Guerra, President,
          Helena Jäderblom,
          Helen Keller,
          Dmitry Dedov,
          Branko Lubarda,
          Pere Pastor Vilanova,
          Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 15 November 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 43614/14) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Andrey Vladimirovich Cherepanov (“the applicant”), on 31 May 2014.

2.  The applicant was represented by Ms A.V. Boychenyuk, a lawyer practising in Paris. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.

3.  The applicant alleged, in particular, that his right to leave the Russian Federation had been violated by a ban imposed by the bailiffs’ service for his failure to honour a judgment debt in respect of a private person.

4.  On 30 August 2015 the complaint concerning the ban imposed on the applicant leaving the territory of Russia was communicated to the Government and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.

5.  The Government made a friendly settlement proposal to settle the case which was refused by the applicant.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

6.  The applicant was born in 1962 and lives in Moscow.

A.  Judgment debt and enforcement proceedings

7.  On 14 May 2012 the Dorogomilovskiy District Court, Moscow (“the District Court”), awarded 45,460.21 Russian roubles to N., to be paid by the applicant. The judgment of 14 May 2012 entered into force on the same day.

8.  On 16 October 2012 the District Court issued a writ of execution.

9.  By a ruling of 14 January 2013 a bailiff with the Dorogomilovskiy bailiffs’ service, Moscow (“the bailiff”), initiated enforcement proceedings. The applicant was invited to voluntarily comply with the judgment debt within three days of the date on which he received a copy of that ruling.

10.  On the same date the bailiff issued a ruling restricting the applicant’s right to leave the country for a period of six months on the grounds that the judgment creditor had asked for such a restriction to be imposed on the applicant. The ruling was based on the 2007 Federal Act on Enforcement Proceedings (sections 6, 14, 30, 64, 67 and 68) and the 1996 Federal Act on Leaving and Entering the Russian Federation (Procedures) (section 15(5)).

11.  On 25 February 2013 the bailiffs’ service sent copies of the rulings of 14 January 2013 to the applicant. The applicant only received them on 12 March 2013.

12.  The applicant, not having been aware until 12 March 2013 of the travel restriction imposed on him, decided to visit his one-year-old daughter, who lived in Italy. However, on 2 March 2013, the applicant was stopped by border guards as he was attempting to board a plane.

13.  On 13 March 2013, after having received copies of the rulings of 14 January 2013, the applicant paid the judgment debt.

14.  On 14 March 2013 the applicant complained to the Chief Bailiff of Moscow about the actions of the bailiff. He submitted that the bailiff had sent him copies of the rulings of 14 January 2013 only after the expiry of statutory time-limits. Furthermore, the bailiff had imposed the travel ban on him on the same date as that on which the enforcement proceedings had been initiated. This indicated that the bailiff had not had at his disposal any information as to whether he (the applicant) had been evading voluntary compliance with the writ of execution.

15.  On 21 March 2013 the bailiffs’ service lifted the travel restriction and terminated the enforcement proceedings.

16.  On 4 April 2013 the Deputy Chief Bailiff of Moscow examined the applicant’s complaint of 14 March 2013. He acknowledged that the rulings of 14 January 2013 had been sent to the applicant outside the statutory time-limits and allowed the applicant’s complaint in that part. However, he found, with reference to section 67 (2) of the 2007 Federal Act on Enforcement Proceedings, that the travel ban had been imposed on the applicant in accordance with law.

B.  Proceedings to challenge the bailiff’s ruling of 14 January 2013 imposing a travel ban

17.  On 23 May 2013 the applicant challenged in court the bailiff’s ruling of 14 January 2013 imposing a travel ban on him. He submitted that the ruling had not been duly reasoned since he had never evaded the obligations imposed on him by the judgment of 14 May 2012. Furthermore, in breach of statutory requirements, he had not been duly informed of the travel restriction imposed on him since he had only received the bailiff’s ruling on 12 March 2013.

18.  On 12 September 2013 the District Court examined and dismissed the applicant’s complaint. The District Court held, in particular, that the bailiffs had imposed the travel restriction on the applicant under section 30 of the 2007 Federal Act on Enforcement Proceedings, which allows the imposition of such a restriction (upon the request of a judgment creditor) before the expiry of the time-limit set for voluntary payment of the judgment debt.

19.  In his appeal against the judgment of 12 September 2013, the applicant submitted that the District Court, in taking its decision, had not applied section 15 of the 1996 Federal Act on Leaving and Entering the Russian Federation (Procedures), which provided that the right of a Russian citizen to leave the Russian Federation could be temporarily restricted only when it had been established that he or she had evaded obligations imposed on him or her by a court.

20.  On 16 December 2013 the Moscow City Court (“the City Court”) upheld the judgment of 12 September 2013.

21.  On 10 February 2014 the applicant lodged a cassation appeal with the Presidium of the City Court.

22.  On 17 March 2014 a judge of the City Court refused to refer the applicant’s cassation appeal to the cassation court.

C.  The applicant’s complaint to the Constitutional Court

23.  On 3 July 2014 the Constitutional Court refused to accept for examination the applicant’s complaint concerning whether section 30(2) and section 67(2) of the 2007 Federal Act on Enforcement Proceedings were compatible with the Constitution (Ruling no. 1561-O).

24.  In particular, the Constitutional Court held that section 67(2) of that Act could not be applied in the course of enforcement proceedings independently from the general provisions on the application of temporary travel restrictions set out in section 67(1) and in the absence of confirmation that the debtor had been notified of the enforcement proceedings instituted in respect of him and of his obligation to voluntarily comply with the writ of execution within the time-limit set by the bailiffs’ service. The bailiffs’ service was entitled to impose travel restrictions only in cases in which the debtor had not complied with the writ of execution within the statutory five-day period, running from the date on which the debtor received the decision to initiate enforcement proceedings.

25.  Having regard to the above, the Constitutional Court concluded that the closely linked provisions of section 30(2) and section 67(2) of the 2007 Federal Act on Enforcement Proceedings did not provide for the possibility that the bailiffs’ service could grant the judgment creditor’s request for the imposition of a travel ban on the debtor at the same time as it took the decision to initiate enforcement proceedings (that is to say, before the expiry of the deadline set for voluntarily enforcement of the writ of execution) and also before it received confirmation that the debtor had been aware of the enforcement proceedings initiated in his respect and had evaded voluntary compliance with the writ of execution. Therefore, the legal provisions challenged by the applicant could not be regarded as having breached the applicant’s constitutional rights.

D.  The applicant’s attempt to have the proceedings against the bailiff’s ruling of 14 January 2013 re-opened

26.  Following the Constitutional Court’s decision the applicant lodged a request with the District Court for it to review its judgment of 12 September 2013 under the procedure for re-opening of cases due to new circumstances.

27.  On 8 October 2014 the District Court dismissed the applicant’s request, having found that the provisions referred to by the applicant had not been declared incompatible with the Constitution by the Constitutional Court and that the interpretation by the Constitutional Court of those provisions could not be considered as constituting new circumstances.

28.  On 2 April 2015 the City Court upheld that decision.

29.  On 10 June 2015 a single judge of the City Court declined to refer the applicant’s cassation appeal for consideration by the Court of Cassation.

30.  On 31 August 2015 a single judge of the Supreme Court of the Russian Federation refused to refer the applicant’s cassation appeal for consideration by the Supreme Court.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

A.  1993 Constitution of the Russian Federation

31.  Article 27 § 2 provides that anyone may freely leave the Russian Federation.

32.  Article 55 § 3 provides that human and civil rights and freedoms may be limited by federal law only to the extent necessary to protect the basis of the constitutional order, morality and the health, rights and lawful interests of others, and to ensure the defence of the country and the security of the State.

B.  The 1996 Federal Act on Leaving and Entering the Russian Federation (Procedures), as worded at the material time

33.  The right of a Russian citizen to leave the Russian Federation could be restricted only on the basis of the Act and in accordance with the procedure set out therein (section 2).

34.  The right of a Russian citizen to leave the Russian Federation could be temporarily restricted if he or she had evaded obligations imposed on him or her by a court. In such cases the restriction was valid until the obligation had been complied with or until the parties had settled the matter (section 15(5)).

C.  The 2007 Federal Act on Enforcement Proceedings, in force since 1 February 2008, as worded at the material time

35.  Section 30 of the Act set out the procedure for instituting enforcement proceedings. In particular, it provided that enforcement proceedings could be instituted by the bailiffs’ service upon the request of a judgment creditor (section 30 (1)). When submitting a request for enforcement proceedings to be instituted, the judgment creditor could ask the bailiffs’ service to seize the debtor’s property in order to secure the enforcement of the judgment debt. The judgment creditor could also ask for the application of the restrictions set out in the Act (section 30 (2)). In its decision to institute enforcement proceedings the bailiffs’ service set a time-limit for voluntary compliance with the judgment (section 30 (11)). A copy of the bailiff’s decision to institute enforcement proceedings had to be sent to the judgment creditor, the debtor and to the court (or other body or State official) that had issued the writ of execution no later than the day following the day on which the decision to institute enforcement proceedings was issued (section 30 (17)).

36.  Section 67 established a framework for imposing restrictions on a debtor’s right to leave the country. In particular, it provided that a restriction on leaving the country could be imposed in the event of all the following criteria being met: enforcement proceedings had been initiated following a court decision; the bailiffs’ service had set a time-limit for voluntary compliance with the decision (and the debtor had failed to comply within that time-limit); and the debtor had no valid reason for not having complied with the judgment (section 67 (1)). A travel restriction could also be imposed at the request of the judgment creditor, which had to be submitted together with his request for enforcement proceedings to be instituted (paragraph 2).

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 4 TO THE CONVENTION

37.  The applicant complained under Article 2 of Protocol No. 4 to the Convention that his right to leave the Russian Federation had been violated by a travel ban imposed on him by the bailiff.

38.  The Court considers that this complaint falls to be examined under Article 2 §§ 2 and 3 of Protocol No. 4 to the Convention, which provides as follows:

“2.  Everyone shall be free to leave any country, including his own.

 3.  No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others ...”

A.  Admissibility

39.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  Submissions by the parties

40.  Having regard to the position of the Constitutional Court, as expressed in its decision of 3 July 2014, and to the decision of the Deputy Chief Bailiff of Moscow of 4 April 2013, the Government submitted that the ban on the applicant leaving Russia had been imposed unreasonably on account of the incorrect interpretation and application of domestic legislation.

41.  The applicant maintained his complaint.

2.  The Court’s assessment

42.  The Court reiterates that Article 2 of Protocol No. 4 to the Convention guarantees to any person the right to liberty of movement, including the right to leave any country for such country of the person’s choice to which he or she may be admitted (see Baumann v. France, no. 33592/96, § 61, ECHR 2001-V (extracts)). Any measure restricting that right should be “in accordance with law”, pursue one or more of the legitimate aims contemplated in the third paragraph of the same Article and “be necessary in a democratic society”.

43.  In the present case it is not disputed that the restrictions on the applicant leaving Russia imposed by the bailiff’s ruling of 14 January 2013 constituted interference with his right to leave the country, as guaranteed by Article 2 § 2 of Protocol No. 4 to the Convention.

44.  The Court therefore has to examine whether the interference was in “accordance with law”, pursued one or more legitimate aims and was “necessary in a democratic society”.

45.  The Government have acknowledged that the ban on the applicant leaving Russia was unreasonable on account of the incorrect interpretation and application of domestic law by the authorities. In the Court’s opinion that incorrect interpretation and application of domestic legislation, which were upheld by judicial authorities at several levels, resulted in interference with the applicant’s right to leave his country, which was not in “accordance with law”.

46.  The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 2 of Protocol No. 4 to the Convention.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

47.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

48.  The applicant claimed 662.08 euros (EUR) in respect of pecuniary damage. That amount consisted of EUR 110.08 paid by the applicant for an air ticket and EUR 552 for hotel accommodation booked in Italy in connection with the trip planned for 2 March 2013.

49.  The applicant further claimed EUR 10,000 in respect of non-pecuniary damage.

50.  The Government contested those claims. Regarding the applicant’s claim in respect of pecuniary damage, they submitted that the applicant could have obtained a refund from the airline company and the hotel. They further submitted that the applicant’s claim in respect of non-pecuniary damage was excessive and unreasonable and did not correspond to the Court’s case-law.

51.  The Court observes that the applicant’s claims in respect of pecuniary damage are not supported by any evidence. In particular, the Court has at its disposal only copies of the applicant’s air tickets and hotel reservation. The applicant has not submitted any corresponding receipts. The Court therefore rejects those claims. Making an assessment on an equitable basis, the Court awards the applicant EUR 1,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B.  Costs and expenses

52.  The applicant claimed compensation for the following costs and expenses:

(i) EUR 1,989.95 for travel costs incurred by him in connection with the domestic proceedings, during which he had had to travel from Croatia and Italy to attend court hearings in Moscow;

(ii) EUR 2,000 for twenty hours of legal services provided by the applicant’s representative in the proceedings before the Court, of which EUR 500 to be paid to the applicant and EUR 1,500 to be paid into the bank account of the applicant’s representative.

53.  The Government submitted that the applicant should not be compensated for his expenses for travel relating to domestic proceedings since the real purpose of that travel had not been established. Regarding the costs in respect of legal advice in the proceedings before the Court, the Government pointed out that the applicant had submitted confirmation of the payment of only EUR 500 to his lawyer. He had failed to confirm that the remaining EUR 1,500 had actually been paid to his representative.

54.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 500 in respect of the proceedings before the Court.

C.  Default interest

55.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares the application admissible;

 

2.  Holds that there has been a violation of Article 2 of Protocol No. 4 to the Convention;

 

3.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;

 

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 6 December 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

  Stephen Phillips                                                                 Luis López Guerra
       Registrar                                                                              President