Restrictions on leaving the country must meet the criteria of proportionality and justification: ECHR opinion
Restrictions on the right to leave the country always have complex legal and social consequences, as they affect both the personal freedom of a citizen and the mechanisms of state control over the execution of court decisions. In the case of Babich v. Ukraine, the European Court of Human Rights focused on the issue of restrictions on leaving the country, which must meet the criteria of proportionality and justification.
The Fifth Section of the European Court of Human Rights has ruled in the case of Babich v. Ukraine (application No. 2393/17), finding a violation of Article 2 of Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, which guarantees the right to leave any country. The decision becomes final, although its text may be subject to editorial changes, and it sets an important precedent regarding restrictions on freedom of movement in Ukraine.
The complaint was filed in connection with the applicant’s ban on leaving the territory of Ukraine due to non-compliance with a court decision on debt repayment. In August 2013, the Poltava District Court granted the state bailiff’s motion to impose a travel ban until the debt was fully repaid. Three months later, in December 2013, the Kharkiv Regional Commercial Court declared the applicant bankrupt, but his attempts to have the ban lifted remained unsuccessful.
In October 2015, the applicant officially married, and in early 2016, he, his wife, and son received Romanian passports. In August of the same year, his wife and son moved to Prague (Czech Republic), while the applicant remained in Ukraine and faced numerous refusals to leave during the years 2014–2016. Only in February 2016 did he manage to cross the border using a Ukrainian passport with a different spelling of his name, and in the following years he traveled outside Ukraine several times with a Romanian passport.
Despite these facts, as of 2019 the ban remained in force. On December 5, 2019, the Supreme Court finally refused to remove information about the restrictions from the database of the State Border Service of Ukraine, reasoning that the fact of bankruptcy is not a basis for stopping the restriction, since the enforcement proceedings have not been completed.
The applicant appealed to the ECHR, arguing that the restriction of his right to leave the country was disproportionate and unjustified, while the government insisted on the legality of the measure and noted that the person could travel with a Romanian passport. The Court found the complaint admissible and compared it to the precedent in the case of Stetsov v. Ukraine (No. 5170/15, 11 May 2021), which concerned a similar restriction on the right to leave due to non-fulfillment of debt obligations.
As in the previous case, the measures applied to the applicant were not sufficiently justified and were not subject to review throughout the duration of the ban. The Court concluded that the Ukrainian authorities had failed to ensure that the restriction was proportionate and justified from the outset and throughout its application.
The ECtHR drew attention to the specific impact of the ban on the applicant’s life: he was repeatedly refused permission to leave the country. The acquisition of the citizenship of another State and the possibility of periodic travel did not eliminate the problems and did not make the restriction compatible with the requirements of Article 2 § 2 of Protocol No. 4. The Court found that the authorities’ measures effectively deprived the applicant of his right to leave Ukraine freely for a significant period of time, which amounted to a violation of the Convention guarantees.
The applicant also alleged that the ban on leaving Ukraine violated his right to respect for private and family life under Article 8 of the Convention.
The Court noted that the Convention did not guarantee the establishment of family life in a specific country. The applicant’s wife and son had moved abroad after several years of the ban, and they were aware of its consequences. Furthermore, the applicant had not alleged that his family members had been restricted in their right to enter or reside in Ukraine. The complaint under Article 8 was therefore rejected as manifestly ill-founded.
The ECtHR judgment stressed that any restrictions on the right to leave the country must meet the criteria of proportionality and justification, and that temporary restrictions cannot ignore the principles of effective human rights protection. In the case of Babich v. Ukraine, the Court found that the measures applied did not meet these standards and confirmed a violation of the right to leave, while rejecting the complaint regarding a violation of the right to family life. The judgment sets a precedent for assessing the lawfulness of similar measures in the future.
