Постановление Европейского суда по правам человека от 22.01.2009 «Дело Лоторевич (Lotorevich) против России» [англ.]

15 February 2007).
19. 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.
20. 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).
21. 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

22. 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."
23. The Court considers that this complaint is inadmissible as follows.
24. 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.
25. 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.
26. 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

27. 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

28. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage alone.
29. The Government argued that this claim was excessive and unsupported by evidence.




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