CEDH · CASELAW;CLIN;ENG — 12 octobre 2006

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 90 October 2006 Kunkova and Kunkov v. Russia (dec.) - 74690/01 Decision 12.10.2006 [Section I] Article 6 Civil proceedings Article 6-1 Civil rights and obligations No established rights at stake in proceedings for damages due to a reservist’s suicide and the failure to exempt a prospective conscript from military service: inadmissible   In 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. Later that year he was found hanged. In 1998 the second applicant (the first applicant’s son) was found fit for military service but was permitted to postpone his service on several occasions on account of his studies. The applicants instituted proceedings against the draft board and the Ministry of Finance, claiming compensation for the non-pecuniary damage caused by Mr V. Kunkov’s death. 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 had impeded him from finding employment, continuing his studies and starting a family. The applicants argued that he should have been exempted from service because his father had died during reservist training. The district court dismissed their action, finding that the first claim had no basis in domestic law. The court further noted that the Law on Military Service provided for exemption from military service in the event of a parent’s death in the course of performing military duties, whereas the applicant’s father had committed suicide. Since the applicants had failed to correct certain inaccuracies in their subsequent appeal, it was returned without examination. Before the European Court they complained that they had been denied a fair hearing and, in particular, that the court had not postponed one hearing, that their representative had not been summoned to another hearing and that their appeal had been returned without examination. The Court noted that the applicants’ first claim at domestic level had concerned compensation for the non‑pecuniary damage caused by Mr   V. Kunkov’s death during reservist training. In this regard the Court took note of the 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, no civil right recognised in domestic law had been at issue and Article   6 did not apply to those proceedings. – The applicants’ second claim essentially had 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. As to whether the dispute had been “genuine and serious”, the Court noted that the second applicant had claimed damages for the authorities’ failure to exempt him from military service, although it had not even been established that he had been entitled to such exemption. The domestic court had found no direct link between the alleged failure and the alleged damage which, furthermore, had remained unsubstantiated. Accordingly, there was no established right that the domestic authorities allegedly had failed to respect, no direct link between the alleged failure and the alleged damage, and, moreover, no evidence of any damage. Those circumstances provided a sufficiently clear indication that the dispute in question had not been genuine and serious. Accordingly, Article   6(1) was not applicable: incompatibleratione materiae .   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes