Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

158 | PRACTITIONERS GUIDE No. 6
Box 11. Automatic prohibitions on leaving one’s
country
The right to leave any country, including one’s own, is enshrined
in Article 12.2 ICCPR, Article 2.2 of Protocol 2 ECHR,
Article 22.2 ACHR, Article 12.2 of the African Charter. It is not
an absolute right as, it can be limited for the pursuance of a
legitimate aim and only by measures which are prescribed by
law, necessary and proportionate.
A particular reflection of this human right—which is rarely
claimed before international human rights bodies—is to
be found in the judgment of the European Court of Human
Rights in the case Stamose v. Bulgaria. The case concerned a
Bulgarian citizen whose passport was seized by the Bulgarian
authorities and who was subject to a travel ban of two years
for breach of the immigration laws of the USA. The scope of
this measure was to “discourage and prevent breaches of the
immigration laws of other States, and thus reduce the likelihood
of those States refusing other Bulgarian nationals entry
to their territory, or toughening or refusing to relax their visa
regime in respect of Bulgarian nationals”. 531 The law on which
the measure was based was “enacted and subsequently tightened
[. . .] as part of a package of measures designed to allay
the fears of, amongst others, the then Member States of the
European Union in respect of illegal emigration from Bulgaria,
and that it played a part in the Union’s decision in March 2001
to exempt Bulgarian nationals from a visa requirement for
short‐term stays [. . .].” 532
The European Court held that the fact that the prohibition to
leave his country derived from a EU agreement did not foreclose
the examination of its compliance with the European
Convention on Human Rights. On the matter of the dispute,
the Court found it “quite draconian for the Bulgarian State—
which could not be regarded as directly affected by the applicant’s
infringement—to have also prevented him from travelling
to any other foreign country for a period of two years”. 533
It finally ruled that, “[a]lthough the Court might be prepared
to accept that a prohibition on leaving one’s own country imposed
in relation to breaches of the immigration laws of an-
531 Stamose v. Bulgaria, ECtHR, Application No. 29713/05, Judgment of 27 November 2012,
para. 32.
532 Ibid., para. 36.
533 Ibid., para. 34.