CASE OF CHEREPANOV v. RUSSIA
Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 2 of Protocol No. 4 - Freedom to leave a country)
Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
6. The applicant was born in 1962 and lives in Moscow. 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 timelimits 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. 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. 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 fiveday 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. 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.