BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF LOTOREVICH v. RUSSIA
(Application
no. 16048/06)
JUDGMENT
STRASBOURG
22 January
2009
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 Lotorevich v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and André Wampach, Deputy
Section Registrar,
Having
deliberated in private on 16 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 16048/06) 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 Andrey Yevgenyevich
Lotorevich (“the applicant”), on 6 April 2006.
- The
Russian Government (“the Government”) were represented by
Ms V. Milinchuk, former Representative of the Russian Federation
at the European Court of Human Rights.
- On
7 May 2007 the President of the First Section decided to communicate
the complaint concerning non-enforcement of a binding judgment to the
Government. It was also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1959 and lives in Krasnoznamensk, a town in the
Moscow Region.
- At
the material time the applicant was a lieutenant colonel of Space
Forces. After 22 years of service, he was due to retire on reaching
the age limit in August 2004. Under domestic law, long-serving
servicemen in need of better housing (the applicant met this
condition) could be discharged against their will only if the command
provided them with such housing. When preparing his discharge, the
applicant insisted that the command provide him with a flat and did
not agree to be discharged “flatless” (бесквартирным).
- As
the flat had not been provided in time, the applicant sued his
command. On 25 February 2005 the Krasnoznamensk Garrison Military
Court ordered the command to provide the applicant with housing at
his place of service and, once this done, to discharge him. This
judgment became binding on 10 March 2005 but was not enforced
immediately.
- In
February 2006 the applicant was offered a flat in Bolshie Vyazyomy, a
village 3.5 km away from Krasnoznamensk. The applicant refused this
offer, insisting that the flat should be located in Krasnoznamensk
itself.
- On
15 June 2007 the applicant received a flat in Krasnoznamensk. He was
discharged later the same year.
II. RELEVANT DOMESTIC LAW
- Under
section 9 of the Federal Law on Enforcement Proceedings of 21 July
1997, a bailiff must enforce a judgment within two months.
- 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 a “flatless” discharge, 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 under Article 6 of the Convention and Article 1
of Protocol No. 1 about the non-enforcement of the judgment. 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 the application was inadmissible. The
proceedings in question had not been “civil” within the
meaning of Article 6, because as a serviceman, the applicant had
wielded a portion of the State's sovereignty, and because the subject
matter of case had been excluded from ordinary courts' competence.
The applicant had failed to exhaust domestic remedies, because he had
not brought proceedings against bailiffs, had not requested a change
of the mode of enforcement, and had not complained to a court. The
authorities had not idled. The bailiffs had fined the defendant and
threatened it with a criminal prosecution. The applicant had rejected
the flat in Bolshie Vyazyomy unreasonably, given that this village
could also have been considered as his place of service. The delay
had been caused by the scarcity of flats, and by the applicant's
failure to submit enforcement papers in time.
- The
applicant maintained his complaint. Article 6 did apply to the
proceedings, because at the material time his contract had expired,
and he should have been discharged. He had had to reject the flat in
Bolshie Vyazyomy, because this village had not been as well-planned
as Krasnoznamensk, and because it could not have been considered as
his place of service, given that during twelve years he had served in
Krasnoznamensk. He did exhaust domestic remedies. The scarcity of
flats had not been an excuse.
- 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).
16. With
regard to domestic remedies, the Court notes that the Government have
not shown how the remedies suggested to them would be effective in
bringing the applicant closer to his desired goal – the
provision of the flat.
- 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).
- In
the case at hand the enforcement lasted two years and three months:
from the date the judgment became binding to the date the applicant
received the flat in Krasnoznamensk. This period is in itself
incompatible with the requirements of the Convention, and the
justifications put forward by the Government are unconvincing.
- In
particular, the Court has not at its disposal a domestic judicial
decision that would confirm that under domestic law Bolshie Vyazyomy
can indeed be considered as the applicant's place of service.
Besides, the scarcity of flats cannot be considered as a mitigating
circumstance (see Burdov, cited above, § 35). Lastly,
where a judgment is against the State, the State
must take the initiative to enforce it (see Akashev
v. Russia, no. 30616/05, § 21–23,
12 June 2008).
- The
foregoing considerations are sufficient to enable the Court to
conclude that there has been a violation of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 4 OF THE CONVENTION AND
OF ARTICLE 2 OF PROTOCOL No. 4
- The
applicant complained under Article 4 § 2 of the Convention and
Article 2 of Protocol No. 4 that pending the provision of the flat he
had to continue to serve. Insofar as relevant, these Articles read as
follows:
Article 4
“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....”
Article 2 of Protocol No. 4
“1. Everyone lawfully within the
territory of a State shall, within that territory, have the right to
liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any
country, including his own.
3. No restrictions shall be placed on the
exercise of these rights other than such as are in accordance with
law and are necessary in a democratic society in the interests of
national security or public safety, for the maintenance of ordre
public, for the prevention of crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others.
4. The rights set forth in paragraph 1 may
also be subject, in particular areas, to restrictions imposed in
accordance with law and justified by the public interest in a
democratic society.”
- 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”. Hence this
complaint would have had no merit, even if the applicant had been
retained in the army against his will.
- However,
in any event, there was no “forced” or “compulsory”
labour in this case because the applicant was a professional
serviceman who had enlisted voluntarily and had had a long career in
the army. His continued service in the anticipation of the housing
fell outside the scope of Article 4.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
III. 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
- The
applicant claimed 10,000 euros (EUR) in respect of non-pecuniary
damage alone.
- The
Government argued that this claim was 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 2,000 under this head.
B. Costs and expenses
- The
applicant made no claim for the costs and expenses. Accordingly, the
Court makes no award.
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 complaint concerning
non-enforcement of the judgment 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
(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 2,000 (two
thousand 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 22 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
