JUDICIAL PRACTICE REGARDING THE DECISION ON THE TEMPORARY RESTRICTION OF THE RIGHT OF DEPARTURE FOR LIMITS OF UKRAINE IN THE CIVIL PROCESS

According to article 33 of the Constitution of Ukraine everyone who lawfully is in territory of Ukraine is guaranteed freedom of movement, free choice of place of residence, the right to freely leave the territory of Ukraine, except for restrictions which are established by law.

According to article 2 of Protocol No. 4 to the Convention for the protection of human rights and fundamental freedoms ("the Convention"), which guarantees certain rights and freedoms not provided for in the Convention and in the First Protocol thereto, everyone is free to leave any country, including his own. On the exercise of these rights cannot be set any restrictions except those provided by law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of public order, prevention of crime, protection of health or morals, or the protection of the rights and freedoms of others.

Also article 12 of the International Covenant on civil and political rights provides that everyone has the right to leave any country, including his own. The above-mentioned rights may not be subject to any restrictions except those provided by law, necessary for the protection of national security, public order, health or morals or the rights and freedoms of others and are consistent with other rights defined in this Covenant.
The legislation of Ukraine the legal regulated by article 313 of the Civil code of Ukraine (hereinafter - CC), according to which an individual has the right to freedom of movement. A natural person who has reached sixteen years of age, has the right to travel independently outside of Ukraine. An individual may be limited in the exercise of the right to movement only in cases established by law.

This right is assigned to the Ledger for personal non-property rights of an individual (kN. the second of the civil code), namely, moral rights, to the natural existence of natural persons (Chapter 21 kN. the second of the civil code). According to part 3 of article 269 of the civil code, moral rights are closely linked to an individual. A natural person may not waive moral rights, and may not be deprived of these rights.

The exercise of the right of citizens of Ukraine for departure from Ukraine and entry to Ukraine, the order of execution of documents for foreign travel, the cases of temporary restriction of the right of citizens to leave Ukraine, the procedure for resolving disputes in this area is governed by the Law of January 21, 1994 № 3857-XII "On the procedure for exit from Ukraine and entry to Ukraine citizens of Ukraine" (hereinafter - the Law № 3857-XII).

The provisions of article 6 of this Law established that the citizen of Ukraine may be temporarily refused to issue a passport or citizen of Ukraine, passport, may be temporarily denied travel abroad, particular, in the following cases:
- if there are outstanding maintenance, contractual or other outstanding obligations to perform obligations or to resolve the dispute by agreement of the parties in cases prescribed by law, or securing obligations by the pledge, unless otherwise stipulated by an international Treaty of Ukraine (p. 2);

if he evades the obligations imposed on him by a court decision, to the obligations (clause 5); if he filed a civil suit in the court - until the end of proceedings (claim 8).

According to article 8 of Act No. 3857-XII dispute resolution on refusal to issue passports or extension of term or temporary detention of the passport or its removal may be appealed by the citizen to the court at the place of his residence. In case of refusal of the citizen to travel abroad on the grounds specified in paragraphs 1, 2 and 6 of part 1 of article 6 of this Law, he may appeal to a court at the place of their residence. Refusal to leave Ukraine on the grounds specified in paragraphs 3 to 5 and 9 of part 1 of article 6 of this Law, is not subject to appeal.

Temporary detention or seizure of passports in such cases, the court, the Prosecutor's office, internal Affairs, security service, State border service of Ukraine, military commissariats and consular service of Ukraine.

Paragraph 8 of article 19 of the Law of 3 April 2003 No. 661-VI "On State border service of Ukraine" (hereinafter - the Law № 661-VI) it is established that the State border service of Ukraine (hereinafter - SRS) according to a set of assigned tasks, in particular, prevent and prevent entry into Ukraine or departure from Ukraine of persons who under the law are not allowed to enter Ukraine or temporarily limited to the right to departure from Ukraine, including in connection with the instructions of law enforcement.

According to article 124 of the Constitution of the judicial decisions by the courts in the name of Ukraine and are obligatory for execution in all territory of Ukraine.
Enforcement of court judgments in Ukraine is vested in the state Executive service, which is included in the system of bodies of the Ministry of justice of Ukraine. The conditions and procedure for execution of decisions of courts and other bodies (officials) that under the law are subject to compulsory execution in case of default by them on a voluntary basis, defined in the Law of 21 April 1999 No. 606-XIV "On enforcement proceedings" (hereinafter - Law No. 606-XIV).

With effect from 9 March 2011 The act of 4 November 2010 No. 2677-VI "On amendments to the Law of Ukraine "On enforcement proceedings" and some other legislative acts on improving the procedure of compulsory execution of decisions of courts and other bodies (officials)" establishes the right of a state contractor, in the event of failure of the debtor to fulfill the obligations imposed on him by the decision, apply to the court for the establishment of temporary restrictions in the law of debtor outside Ukraine.

In this regard, courts have considered the submission of the public performers on the temporary restriction of the right of departure for limits of Ukraine of debtors in enforcement proceedings.

The civil procedural code of Ukraine (hereinafter - the CCP) supplemented with article 377-1, which settled decisions of the court of temporary restriction of the right to travel outside Ukraine.
Parts 3 and 4 of article 22 of the Law dated 22 September 2011 № 3773-VI "On legal status of foreigners and stateless persons" (hereinafter - the Law № 3773-VI) provides that the exit and entry from/to Ukraine of foreigners and stateless persons may be by a court decision temporarily deferred to perform his material obligations to individuals and legal entities in Ukraine, if otherwise is not stipulated by international treaties of Ukraine or temporarily restricted exit from Ukraine.

The correct application by the courts of procedural law in making judicial decisions on this issue is crucial to respect the legitimate rights of man and citizen, and aims to facilitate the effective, timely and lawful enforcement of decisions of courts and other bodies (officials).

Inadmissibility of restriction of departure from Ukraine in a manner not provided CCP
Paragraph 8 of part 1 of article 6 of Act No. 3857-XII provides for the possibility of restriction of departure from Ukraine of citizens in respect of whom filed a civil lawsuit in court until the end of proceedings.

In civil cases are cases where the courts have identified the issue of temporary restrictions debtors the right to travel outside Ukraine with the kind of security of a claim, not taking into account that the powers of courts of first instance in the resolution of civil cases is specified in the civil procedure code of Ukraine, including the power to take measures to secure the claim.

According to part 1 of article 151 of the CCP, the court upon application of the persons participating in the case, may be taken under this Code, the types of collateral securing the claim. The list of types to ensure the claim is defined in article 152 of the CCP. Among the species of this provision in article 152 of the CCP does not provide for the court's adoption of temporary restrictions persons the right to travel outside Ukraine.

Therefore, given that in civil proceedings there is no legal provision that would provide the court with the authority in the manner prescribed by articles 151 - 153 of the code of civil procedure, to apply this type of security for the claim, as a temporary restriction of travel outside of Ukraine, you should come to the conclusion that the courts cannot apply the above method of securing a claim under the consideration of civil cases for debt collection and enforcement of other obligations, as it violating the civil procedure code and an indication of the court beyond their procedural powers, violation of the principle of the rule of law enshrined in the Constitution, and of the requirements of article 6 of the Convention regarding the decision of the case by a Tribunal established by law.