Russland hat ein wirksames Mittel gegen säumige Schuldner: Ausreiseverbot.
Ein betroffener Schuldner hat sich dagegen bei dem EGMR beschwert und 1000 € Schmerzensgeld bekommen.
Cherepanov v. Russia (application no. 43614/14)
Quelle ECHR 398 (2016) 06.12.2016
The applicant, Andrey Cherepanov, is a Russian national who was born in 1962 and lives in Moscow. The case concerns a travel ban that prevented him from leaving Russia. In May 2012 a judgment by the Dorogomilovskiy District Court in Moscow ordered Mr Cherepanov to pay 45,460 Russian roubles to another party in civil proceedings. By a ruling of 14 January 2013, enforcement proceedings were initiated by a bailiff with the Dorogomilovskiy bailiff service, and a travel ban was introduced restricting Mr Cherepanov’s right to leave the country. Mr Cherepanov was invited to voluntarily comply with the judgment debt within three days of receiving the ruling. Before Mr Cherepanov was informed of the bailiff’s ruling, on 2 March 2013 he was stopped by border guards as he was attempting to board a plane, and prevented from leaving the country. Mr Cherepanov had been on his way to visit his one-year-old daughter in Italy. He only later received the bailiff’s ruling, on 12 March 2013. He paid the judgment debt the next day, and the travel ban was lifted one week later. Mr Cherepanov complained about the actions of the bailiff to the Chief Bailiff of Moscow. He noted that the decision to impose the travel ban had been made on the same day as the decision to initiate enforcement proceedings. However, Mr Cherepanov argued that by law a travel restriction should only be imposed after the debtor has evaded payment beyond the deadline in the enforcement proceedings. Nevertheless, the Deputy Chief Bailiff dismissed the complaint, finding that the bailiff’s order had been lawful under section 67(2) of the 2007 Federal Act on Enforcement Proceedings. Mr Cherepanov then challenged the travel ban ruling in court, submitting that it had not been duly reasoned because he had never evaded the obligations placed on him by the judgment. Furthermore, he complained that the authorities had unlawfully failed to inform him of the travel ban. His case was dismissed by the District Court and by the Moscow City Court.
The Constitutional Court refused to accept for examination Mr Cherepanov’s complaint concerning whether the provisions of the 2007 Federal Act on Enforcement Proceedings were compatible with the Constitution. That court found that the legal provisions he had referred to – sections 30(2) and 67(2) of the 2007 Federal Act on Enforcement Proceedings – could not have breached his constitutional rights. The Constitutional Court concluded in particular that these provisions could not be relied upon by a bailiff’s service to impose a travel ban at the same time as it took the decision to initiate enforcement proceedings, because this would be before the deadline set for voluntary enforcement of the writ of execution, and before the bailiff’s service could be informed that the debtor had evaded payment. Relying on the reasoning in the Constitutional Court’s decision, Mr Cherepanov applied to the District Court to have proceedings re-opened. The District Court dismissed the application, on the grounds that the Constitutional Court had not declared any of the provisions to be unconstitutional, and because the interpretation of the provisions by the Constitutional Court did not constitute new circumstances. The Moscow City Court upheld that decision on appeal. Complaints, procedure and composition of the Court Relying on Article 2 of Protocol No. 4 (freedom of movement), Mr Cherepanov complained that his right to leave the Russian Federation had been violated by the travel ban imposed by the bailiffю
Decision of the Court
Article 2 of Protocol No.4 (freedom of movement)
Having regard to the position taken by the Constitutional Court, the Government submitted that the ban on Mr Cherepanov leaving Russia had been imposed unreasonably, based on an incorrect interpretation and application of domestic legislation. The Court noted that any restrictions placed on the right of an individual to leave the country must be in accordance with the law, pursue a legitimate aim, and be necessary in a democratic society. Given that the restriction placed on Mr Cherepanov had been based on an incorrect interpretation and application of domestic law, the Court found that it had not been in accordance with the law. It had therefore been a violation of Article 2 of Protocol No.4. Just satisfaction (Article 41) The Court held that Russia was to pay the applicant 1000 euros (EUR) in respect of non-pecuniary damage and EUR 500 in respect of costs and expenses.