Resolution CM/ResDH(2013)100

Riener against Bulgaria

Execution of the judgment of the European Court of Human Rights

(Application No. 46343/99, judgment of 23/05/2006, final on 23/08/2006)

(Adopted by the Committee of Ministers on 6 June 2013 at the 1172nd meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in the above case and to the violations established;

Recalling the respondent State ’ s obligation under Article 46, paragraph 1, of the Convention to abide by all final judgments in cases to which it is a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with its above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2013 ) 503 );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted;

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Action report Riener

Riener, application no. 46343/99, judgment of 23/05/2006, final on 23/08/2006

In the case of Riener , the applicant, an Austrian national who at the relevant time also had a Bulgarian nationality, was banned from leaving the Bulgaria between 1995 and 2004 for non-payment of tax debt amounting to approximately 150,000 Euros. The European Court found that the authorities had failed to take into account a number of relevant issues, such as the fiscal authorities ’ inactivity, the debtor ’ s potential ability to pay and the questions related to the applicant ’ s private and family life. This failure was due to the fact that under the legislation in force at the material time, a travel ban could be lifted only when the debt was either paid or secured for the full amount or eventually after the extinction of the debt by prescription. The Court found a violation of Article 2 of Protocol No. 4 due to the authorities ’ failure to ensure that any interference with an individual ’ s right to leave his or her country is, from the outset and throughout its duration, justified and proportionate in the light of the circumstances.

Moreover, the domestic courts seized with the applicant ’ s appeals only examined the formal lawfulness of the travel ban. The limited degree of review afforded to the applicant lead to a violation of Article 13.

2) INDIVIDUAL MEASURES

The travel ban has been lifted.

The European Court awarded the applicant non-pecuniary damage for the suffering and distress she experienced. The Government has paid the sums awarded.

The Government thus considers that no further individual measures are necessary in the case.

3) GENERAL MEASURES

As concerns the general measures in this case, the Government points out to the following developments:

In this case the travel ban had for legal basis the former Law on the Sojourn of Aliens, superseded by the Aliens Act of 1998 (provisions applicable to foreign nationals), as well as the Law on international passports, which was superseded in 1998 by the Bulgarian Personal Documents Act (provisions applicable to Bulgarian nationals).

a) measures concerning the Bulgarian Personal Documents Act

At the time, section 75(5) of the Bulgarian Identity Documents Act provided that Bulgarian citizens who owed significant amounts to the State could be prevented from leaving the country. The Ministry of the Interior was obliged to impose a prohibition on leaving the country on any individual who owed significant amounts to the State, if such request was made by the relevant authorities and the payment of the debt has not been secured.

In 2011 the Ombudsman challenged the provision of section 75(5) of the Bulgarian Personal Documents Act before the Constitutional Court, which, in a judgment of 31/03/2011, declared that provision unconstitutional. It found that the provision pursued a legitimate aim, but was phrased in a manner which was too wide, as it failed to distinguish between debtors who had acted in bad faith and could be influenced by such a measure and bona fide debtors. In the latter case a travel ban would only be of a punitive character and could even hamper the collection of the debt. In addition, the Constitutional Court referred to the provision of Article 2 of Protocol No. 4 and to the Riener judgment discussed here.

Under Bulgarian law once the Constitutional Court has declared a legal provision unconstitutional, it is not to be applied anymore. Thus, there is currently no legal ground for imposing measures restricting the liberty of movement for failure to pay tax debts under the Bulgarian Personal Documents Act.

b) measures concerning the Aliens Act

- legislative measures

The provisions of Section 43 § 1 (2) and (3) of the Aliens Act which provided that foreign citizens who owe significant amounts to the State or to other physical or legal persons can be prevented from leaving the country and that the Ministry of the Interior is obliged to impose such a prohibition, if the debt has not been secured, have been repealed in March 2013. Thus, currently there is no ground for imposing measures similar to the measures imposed to the applicant.

- changes in case-law

It should be recalled that even before the legislative changes of March 2013, the Supreme Administrative Court had developed a constant practice in respect of administrative decisions to ban a foreigner from leaving the country which takes into account the requirements of Article 2 of Protocol No. 4 and the European Court ’ s case-law (see, for instance, judgment No.5175 of 10.04.2012 in administrative case No. 13520/20111020 of the Supreme Administrative Court, judgment No. 3959 of 20.03.20012 in adm. case No. 16519/20111227 of the the Supreme Administrative Court, judgment No. 4463 of 18.10.2011 in adm. Case No. 6124/2011 of the Sofia Administrative Court, Judgment No. 5115 of 09.04.2012 in adm. case No. 10074/20110817 of the Supreme Administrative Court, Judgment No. 5897 of 25.04.2012 in administrative case No. 11584/20110912 of the Supreme Administrative Court ) [1] .

In these judgments, the Supreme Administrative Courts has relied directly on Article 2 of Protocol No. 4, as well as on other relevant international treaties and the Bulgarian Constitution in order to assess the proportionality of the measures taken under Section 43 of the Aliens Act.

According to this new practice of the Supreme Administrative Court, administrative decisions which do not take into account the personal situation of the foreigner concerned, his ability to pay and other factors relevant for the assessment of the proportionality of the measure taken are to be quashed by the administrative courts. The Supreme Administrative Court has followed this practice in all the reported judgments delivered in 2011 and 2012 of which the Bulgarian authorities have knowledge.

On the basis of the considerations above the Government is of the view that no further general measures are necessary in this case.

[1] Решение № 5175 от 10.04.2012 г. по адм. д. № 13520/20111020 на Върховния административен съд, Решение № 3959 от 20.03.2012 г. по адм. д. № 16519/20111227 на Върховния административен съд, Решение № 4463 от 18.10.2011 г. по адм.д. № 6124/2011 г. на Административен съд – София, Решение № 5115 от 09.04.2012 г. по адм. д. № 10074/20110817 на Върховния административен съд, Решение № 5897 от 25.04.2012 г. по адм. д. № 11584/20110912 на Върховния административен съд.