KUNKOV AND KUNKOVA v. RUSSIA
Inadmissible
Christos Rozakis
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. 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. 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. 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.