Refusal to issue a passport on account of an unpaid bank debt (ECHR)

In Chamber judgment (8.12.2020) in the case of Victor Rotaru v. the Republic of Moldova (application no. 26764/12) the European Court of Human Rights held, unanimously, that there had been a violation of Article 2 of Protocol No. 4 (freedom of movement) to the European Convention on Human Rights. 

The case concerned the domestic authorities’ refusal over several years to issue the applicant with a passport, on the grounds that he had failed to repay a debt owed to a bank. The Court noted that the civil-registration authority had refused to issue the applicant with a passport after finding that the sole condition imposed by law had been met, namely the nonrepayment of a debt. The duration of the ban on obtaining a passport had not been specified and it did not appear that the proportionality of the measure had been reviewed at any stage. The domestic legislation, as applied in the present case, had not provided the applicant with sufficient procedural guarantees to prevent the risk of an abuse of power on the part of the authorities, and the applicant had been deprived of the necessary protection against arbitrariness required by the rule of law in a democratic society.

Facts

The applicant, Victor Rotaru, is a Moldovan national who lives in Chișinău (the Republic of Moldova). On 11 June 1998 the Botanica Court in Chișinău ordered Mr Rotaru to pay Bank E. 77,908.51 Moldovan lei (about 16,450 American dollars under the exchange rate in force at the relevant time) in respect of an outstanding loan plus penalties for late payment. In 2004 the applicant left the country to settle with his family in Romania, without having complied with the Botanica Court’s judgment. On returning to Moldova in 2010, Mr Rotaru applied for a new passport. His application was rejected by the civil-registration authority on the grounds that he had not paid back his debt to Bank E. The applicant challenged this refusal before a court, alleging an unlawful interference with his right to freedom of movement. He argued, among other points, that the legal time limit for requesting enforcement of the judgment of 11 June 1998 had expired. Bank E. asked a court bailiff to enforce the 1998 judgment, and he instructed the civil-registration authority not to issue the applicant with a passport. The Chișinău Court of Appeal discontinued the applicant’s action, holding that it was illfounded. An appeal by the applicant was dismissed by the Supreme Court of Justice.

Relying on Article 2 of Protocol No. 4 (freedom of movement), the applicant complained of an illegal and disproportionate interference with his freedom of movement.

Decision of the Court 

The Court noted that the authorities had based the contested measure on section 8 (g) of Law no. 269, which allowed them to refuse to issue a passport in the event of unpaid debt. The civilregistration authority had refused to issue the applicant with a passport simply on the grounds of an application from the creditor, after finding that the sole condition imposed by the above legal provision had been met, namely the fact of failing to repay a debt. The duration of the ban on obtaining a passport had not been specified, and it did not appear that any review had been conducted as to the proportionality of the measure. In those circumstances, the Court concluded that the administrative body’s refusal resembled an automatic measure, and, moreover, it had been imposed for an indefinite period. In this connection, the Court pointed out that an automatic ban on travelling was contrary to the authorities’ obligations under Article 2 of Protocol No. 4. The Court had therefore to determine whether there had been an effective review by the courts of the lawfulness and proportionality of the contested measure. Such review was all the more necessary in that the measure had been taken about 12 years after delivery of the judgment in which the applicant was ordered to reimburse a debt, and in the absence of any pending enforcement procedure before a bailiff. In addition, a review of proportionality for any restriction on the right to freedom of movement had been expressly required by the Constitutional Court in its decision of 15 April 2011. The Court held that the domestic courts had merely validated the contested measure by noting that it complied with section 8 (g) of Law No. 269. They had completely failed to examine whether the refusal to issue a passport was compatible with the provisions on the enforcement of judicial decisions, particularly the provisions laying down a three-year deadline for submitting an enforceable order. In any event, the Court noted that the domestic courts had not analysed the applicant’s individual situation or the question of whether the interference was proportionate. With regard to the obligation on the authorities to review regularly the measure restricting the applicant’s freedom of movement, the Court noted that, following the domestic courts’ confirmation of the authorities’ initial refusal to issue the passport, there had been no fresh examination of the grounds for the travel ban; this was because the domestic legislation provided for no such possibility. In consequence, the Court held that the applicant had been subjected to a measure of an automatic nature, of indefinite duration and with no effective and periodical reassessment. These elements were enough for the Court to conclude that the national legislation, as applied in the present case, had not provided the applicant with sufficient procedural guarantees to prevent the risk of an abuse of power on the part of the authorities, and that the applicant had thus been deprived of the necessary protection against arbitrariness required by the principle of the rule of law in a democratic society. The Court considered that the interference with the applicant’s right to freedom of movement had not been “in accordance with law”. It followed that there had been a violation of Article 2 of Protocol No. 4

The Court held that the Republic of Moldova was to pay the applicant 3,000 euros (EUR) in respect of non-pecuniary damage.

(ECHR/photo: pixabay)

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