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Victoria KHOLOD,

Deputy Head of the Department of Judicial Statistics, Generalization of Judicial Practice, Information Support and Codification and Reference Work of the Court of Appeal of Odessa Region, Candidate of Law

TEMPORARY LIMITATIONS OF THE RIGHT TO TRAVEL OUTSIDE OF UKRAINE BY THE DEBTOR: ISSUES OF ENFORCEMENT

The article is devoted to legal regulation of bases, conditions and procedure of the imposition of temporary restrictions on the debtor’s right to travel outside of Ukraine and cancellation of the restriction. Determined the competence of the court and other authorities to resolve these issues. Examples of judicial practice, carried out their analysis. Attention is drawn to the inadmissibility of making judgments about limitation of constitutional rights without adequate motivation.

Investigated the place and authority of the court, as well as other bodies in addressing the imposition and cancellation of temporary restrictions on the debtor’s right to travel outside of Ukraine. Based on the research of the current legislation, the content of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms is established that any procedural limitations on the right person to appeal directly to the court, including on the cancellation of the temporary restriction the debtor’s right to travel outside of Ukraine, would be contrary to the practice of European Court of human Rights and can be regarded as a restriction of the right to a fair trial. «Right to a fair trial», in which the right of access to a court is one of it`s aspect, can refer anyone who reasonably believes that the interference with his or her civil rights nature unlawfully (decision of 13 October 2009 Salontal – Drobnjak v. Serbia (p. 132), decision of 19 October 2005 the case of «Roche against the United Kingdom» (p. 117).

In this connection, in the context of the investigated problems, the author concludes that the provisions of Article 377-1 of the Civil Procedure Code can not be applied by the court formally to limit guaranteed by paragraph 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms of the human rights (the debtor) of access to a court. Therefore, the abolition of the measures imposed by the court can be carried out as a authority which imposed them - the court and state enforcement. Thus the right to choose which body to contact with the appropriate application belongs to the debtor, in respect of which acts a temporary restriction of the right to travel outside of Ukraine, imposed in accordance with Article 377-1 of the Civil Procedural Code of Ukraine.

Key words: the right to travel outside Ukraine, temporary limitations, enforcement.

References

Judicial practice in resolving the issue of temporary restriction on the right to leave Ukraine: letter of the Supreme Court of Ukraine dated February 1, 2013. Bulletin of the Supreme Court of Ukraine. 2013. No 5. [ukr.]

The decision of the Court of Appeal of Odessa region of May 14, 2015 in case No. 523/10077/14-ts. Unified state register of court decisions. URL: http://reyestr.court.gov.ua/Review/44206806. [ukr.]

Constitution of Ukraine of June 28, 1996, ed. from 30.09.2016. URL: http://zakon5.rada.gov.ua/laws/show/254к/96-вр. [ukr.]

Civil Code of Ukraine dated 16.01.2003 No. 435-IV: as of November 2, 2016. URL: http://zakon3.rada.gov.ua/laws/show/435-15. [ukr.]

On the procedure for leaving Ukraine and entering Ukraine for citizens of Ukraine: Law of Ukraine No. 3857-XII of January 21. 1994: as of July 1. 2015. URL: http://zakon4.rada.gov.ua/laws/show/435-15. [ukr.]

On Enforcement Proceedings: Law of Ukraine No. 606-XIV of April 21, 1999: as of June 6, 1999. 2015. URL: http://zakon4.rada.gov.ua/laws/show/606-14. [ukr.]

Civil Procedure Code of Ukraine of March 18, 2004 No. 1618-IV: as of October 19, 2016. URL: http://zakon4.rada.gov.ua/laws/show/1618-15. [ukr.]

On approval of the Instruction on the organization of enforcement of decisions: Order of the Ministry of Justice of Ukraine No. 512/5 of April 2. 2012: as of October 23. 2014. URL: http://zakon4.rada.gov.ua/laws/show/z0489-12. [ukr.]

About the statement of the Order of interaction of bodies of the state executive service and bodies of the State frontier service of Ukraine during implementation of executive proceedings: the order of the Ministry of Justice of Ukraine, the Ministry of Internal Affairs of Ukraine No. 288/5/102 from 07 February. 2014. URL: http://zakon4.rada.gov.ua/laws/show/z0273-14. [ukr.]

Convention for the Protection of Human Rights and Fundamental Freedoms No. ETS No. 005 of 04 November. 1950 Official Gazette of Ukraine. 2006. No 32. P. 270. [ukr.]

Golder v. The United Kingdom: judgment of the European Court of Human Rights of 21 February. 1975 European Court of Human Rights. Selected solutions. M., 2000. T. 1.[engl.]

Judgment of the European Court of Human Rights on access to information: Coll. unofficial. translation / за заг. ed. T. S. Shevchenko, O. M. Pavlichenko. K .: Institute of Media Law, 2014. [ukr.]

Prince Hans-Adams II of Liechtenstein v. Germany: judgment of the European Court of Human Rights of 12 July. 2001. The case law of the European Court of Human Rights. Decision. Comments. 2002. No 4.[engl.]