FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34035/02 by Lyudmila LOPATINA against Russia

The European Court of Human Rights (Fifth Section), sitting on 5 June 2007 as a Chamber composed of:

Mr P. Lorenzen , President, Mrs S. Botoucharova , Mr K. Jungwiert , Mr R. Maruste , Mr A. Kovler , Mr J. Borrego Borrego , Mr M. Villiger , judges, and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 2 September 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Lyudmila Georgiyevna Lopatina , is a Russian national who was born in 1948 and lives in Perm. She was represented before the Court by Mr A. Mukhachev , a lawyer practising in Perm.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 29 December 1998 the applicant ’ s son was drafted into the army.

On 16 December 1999 the applicant ’ s son was sent to perform his military service in Chechnya . On 14 January 2000 he was killed in action.

The applicant sued the military unit for damages in respect of non-pecuniary loss, alleging that it had sent her son to Chechnya and had been thereby responsible for his death.

On 11 February 2002 the Naro-Fominsk Town Court of the Moscow Region dismissed her claims. It found that the applicant ’ s son had been killed in a military operation. However, there was no appearance that his death had occurred through any fault of the military unit. In the absence of fault, the military unit could not be held liable for any non-pecuniary damage sustained by the applicant. The court continued as follows:

“The court sympathises with the mother ’ s grief at the untimely death of her son. However, it has not established any grounds for imposing on the respondent an obligation to pay monetary compensation for non-pecuniary damage.”

On 14 March 2002 the Moscow Regional Court upheld the judgment on appeal. It endorsed the reasoning of the District Court and added that in accordance with domestic law, family members of a person who died while performing military service were entitled to compensation and social benefits. However, domestic law did not impose on the military unit an obligation to pay damages for the non-pecuniary loss sustained by the family members.

B. Relevant domestic law

1. Investigation of criminal offences

T he Code of Criminal Procedure (in force until 1 July 2002) established that a criminal investigation could be initiated by an investigator or a prosecutor upon a complaint by a n individual . Upon receipt of a complaint, the investigator or prosecutor was to conduct an inquiry. Depending on the findings of the inquiry, the investigator or prosecutor could either initiate or refuse to initiate criminal proceedings. The complainant had to be notified of the decision and informed about the appeal procedure (Articles 108, 109, and 113).

2. Procedure for obtaining damages for non-pecuniary loss

If certain actions impairing an individual ’ s personal non-property rights or encroaching on other incorporeal assets have caused him or her non-pecuniary damage (physical or mental suffering) the court may impose on the perpetrator an obligation to pay pecuniary compensation for such damage. The amount of compensation depends on the degree of the perpetrator ’ s fault and other pertinent circumstances (Article 151 of the Civil Code).

COMPLAINTS

The applicant complained under Article 8 of the Convention that her only son had been sent to perform his military service in Chechnya , where he had been killed .

The applicant complained under Article 6 § 1 of the Convention that the domestic courts had dismissed her claims despite the fact that the military unit had sent her son to Chechnya and therefore should have been liable for the damage caused by his death. The courts had not given due weight to her right to respect for family life.

THE LAW

The applicant complained that her son had been sent to perform his military service in Chechnya where he had been killed and that her claim for non-pecuniary damage had been dismissed by the domestic courts.

The Court regards the applicant ’ s tragedy with deep sympathy. However, it considers that her application is inadmissible for the following reasons.

The Court accepts that a State ’ s responsibility for the death of a serviceman may, under certain circumstances, arise under Article 2 of the Convention (see, for example, Kılınç and Others v. Turkey , no. 40145/98, § § 40 and 41 , 7 June 2005 , with further references) . However, it observes that d uring the preparation and subsequent conclusion of the Convention, the great majority of the Contracting States possessed defence forces and, in consequence, a system of military discipline that by its very nature implied the possibility of placing on certain of the rights and freedoms of the members of these forces limitations incapable of being imposed on civilians. The existence of such a system, which those States have retained since then, does not in itself run counter to their obligations (see Engel and Others v. the Netherlands , judgment of 8 June 1976, Series A no. 22, § 57). The deployment of the applicant ’ s son ’ s military unit to Chechnya was necessitated by the specific demands of military service and was only incidental to the strategic planning of military operations. Sending of the applicant ’ s son to Chechnya , taken on its own, could not engage the State ’ s responsibility under Article 2 of the Convention, either in its negative or positive aspect. Nor could it affect the applicant ’ s right to respect for her family life under Article 8 of the Convention.

The Court further notes that the applicant ’ s claim before the domestic courts was confined to the fact that her son had been sent to Chechnya . She never alleged in the domestic proceedings that her son ’ s death occurred through the fault of the military unit . In these circumstances the Court is not required, under Article 35 § 1 of the Convention to examine whether the concrete events resulting in the applicant ’ s death in the course of military operations would have necessitated an investigation capable of establishing any responsibility of the superiors or other soldiers.

In so far as the applicant complained under Article 6 that her claim for damages had been unfairly dismissed, the Court reiterates that, in accordance with Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, for example, Čekić and Others v. Croatia (dec.), no. 15085/02, 9 October 2003). The domestic courts dismissed the applicant ’ s claim in reasoned decisions taken after a public hearing during which t he applicant was fully able to present her case . The domestic courts found that the applicant was entitled to social benefits paid to family members of soldiers who died in military service. The additional payments she claimed were payable only if a soldier died through the fault of the military unit. There being no appearance of any such fault, the applicant ’ s claim failed. The domestic courts carefully examined the applicant ’ s arguments and gave reasons for rejecting them. There is nothing to indicate that their evaluation of the facts and evidence presented in the applicant ’ s case was contrary to the fairness requirement in Article 6 of the Convention.

T he Court finds no prima facie evidence of alleged violations of the Convention. Therefore, the application must be rejected as manifestly ill-founded pursuant to Article 35 § 3 and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President