AS TO THE ADMISSIBILITY OF
Application no. 74690/01
by Tatyana Aleksandrovna KUNKOVA and Anton Valeryevich KUNKOV
The European Court of Human Rights (First Section),
12 October 2006 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs F. Tulkens,
Mrs N. Vajić,
Mr A. Kovler,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 8 August 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The applicants, Ms Tatyana Aleksandrovna Kunkova and Mr Anton Valeryevich Kunkov, are Russian nationals who live in Arkhangelsk. They are represented before the Court by Mr I. Yu. Teliatyev, a lawyer practising in Arkhangelsk.
The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In May 1984 the first applicant’s husband, Mr V. Kunkov, was enrolled in reservist training, although he had two minor children and his wife was pregnant. On 4 June 1984 he was found hanged.
On 23 November 1998 the second applicant, the first applicant’s son, born in 1980, passed a medical examination and was found fit for military service. However, he was permitted to postpone his military service until 30 June 1999 on account of his studies. On 5 October 1999 the draft board decided to draft him. However, that decision was reversed and another suspension was granted until 2000. On 20 April 2000 the draft board again decided to draft him into military service. The decision was again reversed on 3 July 2000. On 5 October 2000 the second applicant was granted another suspension of the military draft.
The applicants instituted proceedings against the draft board and the Ministry of Finance. They claimed compensation for the non-pecuniary damage caused by Mr V. Kunkov’s death during reservist training. They also claimed compensation for the non-pecuniary damage caused by the draft board’s failure to exempt the second applicant from military service, which allegedly impeded him from finding employment, continuing his studies and starting a family. They argued that he should have been exempted from service because his father had died during reservist training.
The first hearing was scheduled to take place on 12 April 2001. The applicants submitted that they had applied to have the hearing postponed since their representative could not participate in the proceedings on that date. Nevertheless, the hearing took place. The Government submitted that the applicants had failed to submit an appropriate power of attorney for their representative. It is not clear whether the hearing concerned the merits of the claim or was confined to procedural matters.
The next hearing on the merits was due to be held on 28 May 2001. The applicants were duly summoned to it. However, they did not appear and asked the court to examine the claim in their absence. Before the hearing they submitted to the court a power of attorney for their representative which did not comply with the statutory requirements.
On 28 May 2001 the Solombalskiy District Court of Arkhangelsk dismissed the claim. The court found that the Civil Code of 1964, in force at the time of Mr V. Kunkov’s death, did not provide for compensation for non-pecuniary damage, while subsequent legislation had no retrospective effect. Accordingly, the claim had no basis in domestic law. Inasmuch as the claim concerned the second applicant, the court noted that section 23 § 2 (e) of the Law on Military Service provided for exemption from military service in event of a parent’s death in the course of performing military duties, whereas the applicant’s father had committed suicide. The court found that the second applicant had failed to submit any evidence that he was entitled to be exempted from military service under the effective legislation. Furthermore, he had submitted no evidence of any non-pecuniary damage caused to him by the draft board. The court noted that the second applicant had admitted in the courtroom that he had no proof of ever having been refused employment in connection with the requirement to join military service. With regard to his allegations that the failure to exempt him from military service had prevented him from planning further studies and starting a family, the court found no direct link between the alleged failure and the alleged damage which, furthermore, was unsubstantiated.
The applicants appealed. The appeal was to be lodged with the first-instance court for further transmittal to the appeal court. The applicants submitted an appeal statement themselves and another through their representative. The latter was returned without examination by the Solombalskiy District Court on 19 June 2001 on the ground that the representative had failed to submit an appropriate power of attorney. On the same date, having regard to the appeal statement submitted by the applicants, the court stayed the appeal proceedings on the ground of procedural inaccuracies, such as a failure to pay the court fees and to submit two copies of the appeal statement. The court ordered them to correct the inaccuracies by 28 June 2001. Since the applicants failed to do so, their appeal statement was returned without examination.
B. Relevant domestic law
1. Tort claims against the State
Article 46 of the Constitution of the Russian Federation provides that decisions and actions or inaction by State bodies, bodies of local self-government, public associations and officials may be appealed against in court.
Article 53 of the Constitution provides for the right to be compensated by the State for the damage caused as a result of the unlawful actions (inaction) of State bodies and their officials.
Under Article 151 of the Civil Code, compensation for non-pecuniary damage is payable only if physical or moral prejudice has been inflicted on a person through actions violating his or her rights.
Article 1069 of the Civil Code provides for the right to compensation for damage caused to an individual or a legal person as a result of an unlawful act or a failure to act by the State or municipal bodies, or their officials, including those caused by a written act issued by a State or municipal body contrary to a law or a legislative act. The damage is payable by the treasury of the Russian Federation, the treasury of the subjects of the Russian Federation or the municipal treasury respectively.
2. Exemption from military service
Section 23 § 2 (e) of the Law on Military Service as in force at the material time provided for exemption from military service for those whose father, mother, brother or sister had died in the course of performing military duties.
The applicants complained under Article 6 of the Convention that the court did not postpone the hearing of 12 April 2001, that their representative was not summoned to the hearing of 28 May 2001 and that their appeal was returned without examination. They also complained about the court’s findings of fact and law and alleged that the defendants had been represented by inappropriate persons, a situation that the court had taken no steps to remedy.
The applicants complained about the domestic court’s failure to postpone the hearing of 12 April 2001, to summon their representative to the hearing of 28 May 2001 and to examine their appeal. They also complained about the court’s findings of fact and law and alleged that the defendants had been improperly represented. They relied on Article 6 § 1 of the Convention which, in so far as relevant, provides:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
The Government submitted that the applicants had never applied for leave to permit their representative to participate in the proceedings. The power of attorney submitted by them had not complied with the statutory requirements. The applicants had been duly summoned to the hearing of 28 May 2001. However, they had not appeared and had asked the court to examine the claim in their absence. With regard to the appeal, the appeal statement submitted by the applicants’ representative had been returned without the examination by the court because he had failed to submit an appropriate power of attorney. With regard to the appeal statement submitted by the applicants themselves, the proceedings had been stayed in accordance with the effective legislation on account of their failure to pay court fees and to submit two copies of the appeal statement. As the applicants had not remedied these failures within the time-limit set by the court, the appeal statement had been returned to them without examination. The Government concluded that the procedural actions of the Solombalskiy District Court of Arkhangelsk had complied fully with the domestic rules on civil procedure and had not in any way infringed the applicants’ rights as guaranteed by Article 6 § 1.
The applicants contested the Government’s arguments and claimed that in the first-instance proceedings they had submitted several statements to the court through their representative. Only one of the statements had been rejected by the court, whereas the others had been accepted, which they had interpreted as implicit leave to admit him to the proceedings. They had asked the court to examine the claim in their absence because they had believed that their representative would be present at the hearing. They further contended that the appeal statements submitted by them and their representative had been unlawfully returned without examination. Overall, they insisted on the breach of their rights under Article 6 § 1.
The Court is not required to examine the arguments raised by the parties as the application is in any event inadmissible for the following reasons. According to the Court’s well-established case-law, the applicability of the civil limb of Article 6 § 1 requires the existence of “a genuine and serious dispute” over a “civil right” which can be said, at least on arguable grounds, to be recognised under domestic law. Thus, a claim submitted to a tribunal for determination must be presumed to be genuine and serious unless there are clear indications to the contrary which might warrant the conclusion that the claim is frivolous or vexatious or otherwise lacking in foundation (see, for example, Benthem v. the Netherlands, judgment of 23 October 1985, Series A no. 97, § 32; and Rolf Gustafson v. Sweden, judgment of 1 July 1997, Reports of Judgments and Decisions 1997-IV, § 38).
Turning to the facts of the present case, the Court notes that the applicants applied to the Solombalskiy District Court with two claims. The first claim concerned compensation for the non-pecuniary damage caused by Mr V. Kunkov’s death during reservist training. In this regard the Court takes note of the Solombalskiy District Court’s finding that the claim had no basis in domestic law, since the legislation in force at the material time did not provide for compensation for non-pecuniary damage and the subsequent legislation had no retrospective effect. Therefore, there was no civil right at issue which was recognised in domestic law. Accordingly, Article 6 does not apply to the proceedings concerning the first claim made by the applicants.
The Court further notes that the second claim made by the applicants concerned compensation for the non-pecuniary damage allegedly caused by the draft board’s failure to exempt the second applicant from military service. The applicants argued that he should have been exempted from service because his father had died during reservist training, and that the authorities’ failure to do so had prevented him from finding employment, continuing his studies and starting a family.
The Court observes that the applicants’ claim essentially concerned the authorities’ refusal to exempt the second applicant from military service. However, the obligation to serve in the military and, consequently, the right to be exempted from military service, is clearly of a public-law nature and as such falls outside the scope of Article 6 (see, mutatis mutandis, Pellegrin v. France [GC], no. 28541/95, § 66, ECHR 1999-VIII and Batur v. Turkey (dec.), no. 38604/97, 4 July 2000).
The Court notes that the applicants did not merely seek to find the authorities’ actions unlawful but claimed compensation for the non-pecuniary damage allegedly caused through the authorities’ fault, which, as such, constituted a civil claim (see, for example, Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996-VI, § 92). As to whether the dispute was “genuine and serious”, the Court notes that the second applicant claimed damages for the authorities’ failure to exempt him from military service although it was not even established that he was entitled to such exemption. Furthermore, the applicant contended that that failure had prevented him from finding employment, continuing his studies and starting a family. In the first place, the second applicant was not actually drafted into military service and therefore had no apparent impediments to carrying on his life as a civilian in any way he chose. Moreover, in domestic proceedings the second applicant admitted that he had no evidence of having ever experienced difficulties with finding employment on account of not being exempted from military service, nor did he submit any evidence of any other alleged hardship. The domestic court found no direct link between the alleged failure and the alleged damage which, furthermore, was unsubstantiated.
Accordingly, there was no established right that the domestic authorities allegedly failed to respect, no direct link between the alleged failure and the alleged damage, and, moreover, no evidence of any damage whatsoever. In the Court’s view these circumstances provide a sufficiently clear indication that the dispute in question was not genuine and serious (see, for example, Kaukonen v. Finland, no. 24738/94, Commission decision of 8 December 1997, Decisions and Reports (DR) 91-A, p. 14; and Skorobogatykh v. Russia (dec.), no. 37966/02, 8 June 2006). Accordingly, Article 6 § 1 is not applicable in the instant case and the applicants’ complaints must be rejected as incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren Nielsen Christos Rozakis
KUNKOV AND KUNKOVA v. RUSSIA DECISION
KUNKOV AND KUNKOVA v. RUSSIA DECISION