CEDH · CASELAW;CLIN;ENG — 2 décembre 2014

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Italy - 43978/09 Judgment 2.12.2014 [Section II] Article 2 of Protocol No. 4 Article 2 para. 2 of Protocol No. 4 Freedom to leave a country Prohibition on leaving territory owing to failure to pay child maintenance: violation Facts – The applicant was engaged in judicial separation proceedings from his wife, and a provisional residence order was made in favour of both parents jointly in respect of the couple’s two children. In 2007 the applicant asked the guardianship judge to issue him with a new passport, in which the name of his son was to be entered. The guardianship judge rejected the applicant’s request, holding that it was inappropriate to issue the passport, given the imperative of protecting the children’s right to receive the maintenance payments. In this connection, he emphasised that the applicant, who was supposed to make a maintenance payment of EUR   600, was paying only a small proportion of that amount, and that there was a risk that he would shirk his obligation completely if he were to travel abroad. The following month the police commissioner ordered the applicant to hand in his passport to the police station and amended his identity card, making it invalid for foreign travel. In 2008 the applicant again applied for a passport. That request and the subsequent appeals were all dismissed on the same ground as the initial request. Law – Article 2 of Protocol No. 4: The domestic courts’ refusal to issue the applicant with a passport and the decision to invalidate his identity card for foreign travel constituted an interference with his right to leave any country for any other country of his choice to which he could be admitted. The interference clearly had a legal basis in national law. In this regard, the Constitutional Court had stated that the essence of the relevant provision was to “to ensure that parents fulfil their obligations towards their children”. The impugned measure was intended to guarantee the interests of the applicant’s children and in principle it pursued a legitimate aim, namely the protection of the rights of others – in the present case, the children’s right to receive the maintenance payments. However, the national courts had not considered it necessary to examine the applicant’s personal situation or his ability to pay the amounts due, and had applied the impugned measure automatically. There seemed to have been no attempt to balance the rights at stake. The only factor that had been taken into consideration was the property interests of the maintenance recipients. Moreover, there had been civil-law cooperation at European and international level on the issue of the recovery of maintenance payments. There existed methods for obtaining recovery of debts outside national boundaries, in particular Council Regulation (EC) no.   4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, the Hague Convention of 23   November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance, and the New York Convention of 20   June 1956 on the Recovery Abroad of Maintenance. Those instruments had not been taken into account by the authorities when applying the contested measure. They had merely emphasised that the applicant could have travelled abroad using his passport and thus succeeded in evading his obligation. In addition, the restriction imposed on the applicant had not ensured payment of the sums due in maintenance. It followed that the applicant had been subjected to measures of an automatic nature, with no limitation as to their scope or duration, and the domestic courts had not carried out any fresh review of the justification for and proportionality of the measure, having regard to the circumstances of the case, since 2008. In consequence, the automatic imposition of such a measure could not be described as necessary in a democratic society. Conclusion : violation (unanimously). Article 41: EUR 5,000 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes