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FIFTH
SECTION
CASE OF LEVISHCHEV v. RUSSIA
(Application
no. 34672/03)
JUDGMENT
STRASBOURG
29 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 Levishchev v.
Russia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Karel Jungwiert,
Anatoly Kovler,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Zdravka
Kalaydjieva, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 6 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 34672/03) 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 Vasilyevich
Levishchev (“the applicant”), on 13 October 2003.
- The
Russian Government (“the Government”) were represented by
Mrs V. Milinchuk, former Representative of the Russian
Federation at the European Court of Human Rights.
- On
3 May 2007 the President of the Fifth Section decided to communicate
the complaints concerning non-enforcement of a judgment and
compulsory labour 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 1973 and lives in Klin, a town in the Moscow
Region.
- At
the material time the applicant was a captain of the Army. His unit
was stationed in Vatutinki-1 near Moscow.
- In
2000 the applicant 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.
- On
14 December 2000 the command offered the applicant a flat in
Vatutinki-1, but he rejected this offer and sued his command.
- On
13 February 2001 the Moscow Garrison Military Court ordered the
command to provide the applicant's family with housing at his place
of duty without specifying the exact location. In addition, the court
ordered to discharge the applicant, to pay outstanding
service-related benefits, to pay 1,000 Russian roubles (RUB) in
respect of legal costs, and to pay RUB 1,000 in respect of
non-pecuniary damage. This judgment became binding on 16 March
2001 and was enforced as follows.
- On
26 March 2001 the command offered the applicant a flat in
Krasnogorsk, but he rejected this offer.
- On
April 2001 the applicant was discharged from active duty but was
retained on the roster pending the provision of the housing. In April
2001 the command paid the benefits. In May 2001 the command paid the
costs and damages.
- On
21 November 2001 the command offered the applicant a flat in
Domodedovo, but he rejected this offer.
- On
21 March 2002 the command offered the applicant a flat in Zelenograd,
and he accepted this offer. However, higher authorities in the
Ministry of Defence found that the offered flat was too big for the
applicant's family, because his wife and son had another flat. In
2002–03 courts upheld this decision.
- On
2 June 2004 the command offered the applicant a flat in Moscow. On 25
February 2005 the applicant accepted this offer. On 5 May 2005 city
authorities invited the applicant to formalise his ownership, but he
avoided this procedure because he considered the flat too small. He
sued his command, and on 18 October 2005 the Moscow Garrison Military
Court found that the flat in Moscow met the conditions of the
judgment of 13 February 2001.
- On
5 December 2005 the applicant was removed from the roster.
- In
September 2006 the applicant agreed to formalise his ownership of the
flat in Moscow and moved in.
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 under Articles 6, 8, and 14 of the Convention,
Article 1 of Protocol No. 1, Article 2 of Protocol No. 4, and Article
5 of Protocol No. 7 about the delayed enforcement of the judgment
13 February 2001. 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 concerned
military service. The applicant had abused his right of petition by
misrepresenting facts. The judgment had been enforced within a
reasonable time. The applicant had unreasonably rejected offers,
overstated his family's housing needs, and pursued his command with
litigation.
Even
though the judgment had not expressly specified this, the flat had
had to be provided in Moscow. The applicant's command had not had
such flats available immediately and had done all it could to obtain
them. The command had shown good will to settle the case by offering
the flat in Vatutinki-1 (the actual station of the applicant's unit).
- The
applicant maintained his complaint. Article 6 did apply to the
proceedings in question. He had not misrepresented any facts. The
judgment had remained unenforced because the flat in Moscow had not
satisfied his family's housing needs. He had had to reject the flats
in Vatutinki-1, Krasnogorsk, and Domodedovo because they had been
outside Moscow's administrative border. The command had idled, and
the applicant's litigation with the command had been justified.
- With
regard to the applicability 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 abuse of the
right of petition, the Court does not discern on the applicant's part
any intent to deceive.
- 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
23. 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 judgment awarded the applicant a flat at his
place of duty. Even though the judgment did not name the applicant's
place of duty, the parties agree that the flat had to be provided in
Moscow.
- This
being so, the Court considers that the period of enforcement was four
years and one month: from the date when the judgment became binding
(16 March 2001) to the date when the city authorities invited the
applicant to formalise his ownership of the flat in Moscow (5 May
2005). This period is incompatible with the requirements of the
Convention, and in the circumstances of the present case the Court
finds no justification for this delay.
- 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 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 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. 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.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Articles 6, 8, and 14 of the
Convention, and Article 5 of Protocol No. 7 that the flat he received
was too small for his family.
- 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.
IV. 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 250,000 euros (EUR) in respect of non-pecuniary
damage alone. The Government argued that this claim was excessive.
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 claimed no 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 complaint concerning
non-enforcement 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 29 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
