issued by the Registrar of the Court

ECHR 361 (2020)

08.12.2020

Refusal to issue a passport on account of an unpaid debt:

violation of the Convention

In today’s Chamber judgment¹in 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 non-

repayment 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.

Principal 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 ill-

founded. An appeal by the applicant was dismissed by the Supreme Court of Justice.

Complaints, procedure and composition of the Court

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.

1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,

any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges

considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final

judgment. If the referral request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.

Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.

The application was lodged with the European Court of Human Rights on 24 April 2012.

Judgment was given by a Chamber of seven judges, composed as follows:

Jon Fridrik Kjølbro (Denmark), President,

Marko Bošnjak (Slovenia),

Aleš Pejchal (the Czech Republic),

Valeriu Griţco (the Republic of Moldova),

Branko Lubarda (Serbia),

Carlo Ranzoni (Liechtenstein),

Saadet Yüksel (Turkey),

and also Stanley Naismith, Section Registrar.

Decision of the Court

Article 2 of Protocol No. 4

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 civil-

registration 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.

Just satisfaction (Article 41)

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

of non-pecuniary damage.

The judgment is available only in French.

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member

States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.