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FIRST
SECTION
CASE OF SLADKOV v. RUSSIA
(Application
no. 13979/03)
JUDGMENT
STRASBOURG
18
December 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Sladkov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 27 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 13979/03) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Sergey Borisovich
Sladkov (“the applicant”), on 26 March 2003.
- The
applicant was represented by Mr M. Rachkovskiy, a lawyer practising
in Moscow. The Russian Government (“the Government”) were
represented by Ms V. Milinchuk, former Representative of the Russian
Federation at the European Court of Human Rights, Mr A. Savenkov,
First Deputy Minister of Justice, and Mr G. Matyushkin,
Representative of the Russian Federation at the European Court of
Human Rights.
- On
7 December 2007 the President of the First Section decided to
communicate to the Government the complaints concerning
non-enforcement of binding judgments, the lack of effective remedies
against the non-enforcement, and compulsory labour. It was also
decided to examine the merits of the application at the same time as
its admissibility (Article 29 § 3). The Government objected to
the joint examination of the admissibility and merits, but the Court
rejected this objection.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1956 and lives in Dushanbe, a city in
Tajikistan.
- At
the material time the applicant was a colonel of the Russian Border
Guard Service. In 1996 he requested an early discharge for health
reasons. Under domestic law, long-serving servicemen in need of
better housing (the applicant met these conditions) could be
discharged against their will only if the command provided them with
such housing. When asking for discharge, the applicant specified that
he wished to receive the housing.
- Since
no housing was provided, the applicant sued his command. On
21 January 1998 the Military Court 10514 ordered the Director of
the Border Guard Service to discharge the applicant with the
provision of housing in Russia, and to pay 7,000 Russian roubles
(RUB) by way of non-pecuniary damages. This judgment became binding
on 31 January 1998.
- From
March 1998 to August 2006 the command offered the applicant flats in
Vyazma (Smolensk Region), Kursk (Kursk Region), Kovrov (Vladimir
Region), Galich (Kostroma Region), Voronezh (Voronezh Region), and
Krasnodar (Krasnodar Region). The applicant rejected these offers
because he wished to receive a flat in Tver.
- For
this reason, the applicant once again sued his command. On 8 February
2002 the Military Court of Garrison 109 ordered the Director of the
Border Guard to discharge the applicant with the provision of housing
in Russia and to pay RUB 5,000 by way of non-pecuniary damages. This
judgment became binding on 16 April 2002 after the appeal court had
upheld it having specified that the housing should be provided in
Tver.
- In
October 2006, December 2006, and June 2007 the command offered the
applicant three flats in Tver. The applicant rejected these offers
because he considered that the command should have first satisfied
his claims for other benefits, and because he disliked the flats'
characteristics.
II. RELEVANT DOMESTIC LAW
- Under
section 23 § 1 of the Federal Law on the Status of Servicemen,
servicemen who have served ten years and more and whose housing needs
to be improved, cannot be discharged against their will without the
provision of such housing.
- According
to the Ruling of the Constitutional Court 322-O of 30 September
2004, after expiry of a serviceman's contract and in the absence of
his written agreement to discharge without provision of housing, he
should be considered as serving voluntarily only until the provision
of housing.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained that despite the judgments he had not been
provided with housing. The Court will examine this complaint under
Article 6 § 1 of the Convention and Article 1 of Protocol No. 1
Insofar as relevant, these Articles read as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ...
by [a] ... tribunal...”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. Admissibility
- The
Government argued that this complaint was inadmissible. Article 6 had
not applied to the proceedings in question because they had been
within the competence of military courts, and because this
restriction had been justified by the nature of military service. The
complaint had been incompatible with the Convention ratione
temporis in the part concerning the judgment of 21 January 1998
because the Convention had entered into force in respect of Russia
only on 5 May 1998. The applicant had unreasonably rejected the flats
offered to him. The authorities had done all they could to enforce
the judgments. Flats in Tver had not been available immediately, and
their construction had had to be preceded by public bidding. Once the
flats had become available, they had been offered to the applicant,
but he had rejected them for no good reason.
- The
applicant maintained his complaint. Article 6 did apply to the
proceedings in question. The complaint had been compatible ratione
temporis, because the non-enforcement had been lasting. The
authorities had idled. The flats offered by the command had not met
requisite characteristics.
- With
regard to application of Article 6, the Court recalls that it has
already dismissed the Government's similar arguments in another case
(see Tetsen v. Russia, no. 11589/04, § 18,
3 April 2008).
- With
regard to the compatibility ratione temporis, the Court notes
that on the date of introduction of the application the judgment of
21 January 1998 remained unenforced, and the Court is hence competent
to examine this complaint (see Grigoryev and Kakaurova v. Russia,
no. 13820/04, § 26, 12 April 2007).
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court reiterates that an unreasonably long delay in the enforcement
of a binding judgment may breach the Convention (see Burdov
v. Russia,
no. 59498/00, ECHR 2002 III). To decide if the delay was
reasonable, the Court will look at how complex the enforcement
proceedings were, how the applicant and the authorities behaved, and
what the nature of the award was (see Raylyan
v. Russia,
no. 22000/03, § 31, 15 February 2007).
- With
regard to the judgment of 21 January 1998, the Court considers that
the authorities have respected their obligations under the
Convention. Indeed, they offered the applicant the first flat as
early as two months after the judgment had become binding. The
applicant rejected this and other subsequent offers on the ground
that the flat should be in Tver, but the judgment did not specify the
flat's location.
- With
regard to the judgment of 8 February 2002, however, the Court
considers that the authorities have not respected their obligations
under the Convention. Indeed, they only offered the applicant the
first flat in Tver (as specified in the judgment) some four years and
five months after the judgment had become binding. This period is
incompatible with the requirements of the Convention. The shortage of
flats in this town did not dispense the State from the obligation to
enforce the judgment (see, mutatis mutandis, Burdov,
cited above, § 35).
- There
has, accordingly, been a violation of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained under Article 13 of the Convention that he had
no effective domestic remedy against the non-enforcement of the
judgments. Article 13 of the Convention reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
- The
Government argued that his complaint was inadmissible. To bring about
enforcement, the applicant could have sued negligent officials, and
applied to the prosecutor's office. Besides, seeing that the Border
Guard Service had failed to comply with the judgments, the applicant
could have applied to bailiffs who would have taken measures against
officials of the Service.
- The
applicant maintained his complaint.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for a prolonged non-enforcement of a
binding judgment (see, mutatis mutandis, Kudła v.
Poland [GC], no. 30210/96, § 156, ECHR 2000-XI).
- The
Court considers that a claim for negligence would have been
ineffective, because it would yield a declaratory judgment that would
reiterate what was in any event evident from the original judgment:
the State was to honour its debt. This new judgment would not bring
the applicant closer to his goal, that is the actual enforcement (see
Jasiūnienė v. Lithuania (dec.), no. 41510/98,
24 October 2000; Plotnikovy v. Russia, no. 43883/02,
§ 16, 24 February 2005).
- Equally,
the Government have not shown how recourse to a prosecutor would have
given preventive or compensatory relief against the non-enforcement.
Nor have the Government given an example from domestic practice of a
successful application of that remedy (see Kudła, cited
above, § 159).
- Lastly,
recourse to bailiffs would have hardly sped up the enforcement,
because the delay had been caused by an economic circumstance –
the shortage of flats in Tver.
- It
follows that the applicant had no effective domestic remedy against
the non-enforcement. There has, accordingly, been a violation of
Article 13 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 4 OF THE CONVENTION
- The
applicant complained under Article 4 of the Convention that he had to
continue to serve against his will awaiting the provision of the
housing. Insofar as relevant, this Article reads as follows:
“2. No one shall be required to perform
forced or compulsory labour.
3. For the purpose of this article the term
'forced or compulsory labour' shall not include:
...
(b) any service of a military character....”
- The
Government argued that this complaint was inadmissible. The applicant
had himself chosen to continue to serve awaiting the provision of the
housing.
- The
applicant maintained his complaint.
- The
Court considers that this complaint is inadmissible as follows.
- Article
4 § 3 (b) expressly excludes military service from the otherwise
prohibited “forced or compulsory labour”. This
rule covers also the obligation to continue a service entered into
voluntarily (see W, X, Y, and Z
v. United Kingdom, nos 3435/67,
3436/67, 3437/67, and 3438/67, Commission decision of 19 July 1968,
Collection 28, pp. 109–131). Hence this complaint would have
had no merit, even if the applicant had been retained in the army
against his will.
- Be
that as it may, the Court notes that the applicant enlisted
voluntarily and had had a long career in the army. Furthermore, he
stayed in the service after term by his own choice. Indeed, section
23 § 1 of the Federal Law on the Status of Servicemen as cited
above and interpreted by the Constitutional Court, may be considered
as a social guarantee to servicemen: it protects them against
homelessness by making discharge conditional on provision of housing.
This law does not prevent a serviceman from leaving if he is prepared
to leave without the housing. In the case at hand, the applicant
refused to be retired “flatless”, and it is not open to
him to blame the authorities for compelling him to labour.
Admittedly, the “flatless” discharge would have entailed
economic hardship for the applicant who had served long years outside
his home country. But this hardship cannot be equated with the
compulsion prohibited by Article 4 of the Convention.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Article 2 of Protocol No. 4 that by
failing to issue him travel papers, the authorities made it
impossible for him to enter Russia.
However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols.
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- In
respect of pecuniary damage, the applicant claimed RUB 4,417,268.68.
This sum represented his estimate of allegedly underpaid benefits
that were due to him as a serviceman from March 2002. The Government
argued that this claim was unreasonable. The Court does not discern
any causal link between the violation found and the pecuniary damage
alleged; it therefore rejects this claim.
- In
respect of non-pecuniary damage, the applicant claimed
20,000,000 euros (EUR). The Government argued that this claim
was unreasonable, excessive, and unsupported by evidence. The Court
accepts that the applicant must have been distressed by the delayed
enforcement of the judgment. Making its assessment on an equitable
basis, the Court awards EUR 3,500 under this head.
B. Costs and expenses
- The
applicant made no claim for the costs and expenses. Accordingly, the
Court makes no award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning
non-enforcement of binding judgments and the lack of remedies against
it admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention and Article 1 of Protocol No. 1;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,500
(three thousand five hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, to be converted into
Russian roubles at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 18 December 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
