CEDH · CASELAW;CLIN;ENG — 27 novembre 2012

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Bulgaria - 29713/05 Judgment 27.11.2012 [Section IV] Article 2 of Protocol No. 4 Article 2 para. 2 of Protocol No. 4 Freedom to leave a country Ban on travelling abroad following breach of immigration rules of a third-party State: violation   Facts – In 2003 the applicant was deported from the United States of America to his home country of Bulgaria after taking up paid employment in breach of the conditions attached to his student visa. On his arrival home, the Bulgarian authorities imposed a two-year travel ban on the applicant and confiscated his passport after receiving a letter from the US Embassy. An application by the applicant for judicial review of the Bulgarian authorities’ decisions was dismissed. Law – Article 2 of Protocol No. 4: This was the first case in which the Court had examined a travel ban designed to prevent breaches of domestic or foreign immigration laws. The prohibition on leaving Bulgaria and the attendant seizure of his passport amounted to interference with the applicant’s right to leave any country of his choice. The interference was “in accordance with the law”. However, it was not necessary to determine whether it pursued the legitimate aims of maintenance of ordre public or the protection of the rights of others as, in any event, it was not necessary in a democratic society. Such a blanket and indiscriminate measure as automatically prohibiting the applicant from travelling to any and every foreign country on account of a breach of the immigration laws of one particular country could not be considered proportionate. The normal consequences of a serious breach of a country’s immigration laws would be for the person concerned to be removed from that country and prohibited (by the laws of that country) from re-entering for a certain period. The applicant had been deported from the United States. It therefore appeared draconian for the Bulgarian State – which could not be regarded as directly affected by the applicant’s infringement of the US immigration rules – to have in addition prevented him from travelling to any other foreign country for a period of two years. Moreover, the authorities had not given any reasons for their order and had apparently not considered it necessary to examine the applicant’s individual circumstances, such as the gravity of his breach of the US immigration rules, the risk he might breach other States’ rules, his family, financial and personal situation, and his antecedents. The domestic courts had ruled that they had no power to review the exercise of the authorities’ discretion in this matter. Although the Court might be prepared to accept that a prohibition to leave one’s own country imposed in relation to breaches of the immigration laws of another State may in certain compelling situations be regarded as justified, it did not consider that the automatic imposition of such a measure without any regard to the individual circumstances of the person concerned could be characterised as necessary in a democratic society. Conclusion : violation (unanimously). Article 13: The domestic courts had been concerned solely with the ban’s formal validity and had specifically held that they could not scrutinise the authorities’ discretionary assessment of the need for the ban, which was in fact the main point raised by the applicant and a key part of the balancing exercise required under Article 2 § 3 of Protocol No. 4. By reason of its limited scope of review, such a procedure did not afford a possibility to deal with the substance of an arguable Convention complaint and so could not satisfy the requirements of Article 13. Conclusion : violation (unanimously). Article 41: No claim made.   © 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