AS TO THE ADMISSIBILITY OF
by Natalya Vladimirovna LOVYGINA
The European Court of Human Rights (Fifth Section), sitting on 22 September 2009 as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
Mykhaylo Buromenskiy, ad hoc judge,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 17 April 2003,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Ms Natalya Vladimirovna Lovygina, is a Ukrainian national who was born in 1973 and lives in Kherson. She was represented before the Court by Mr M. Y. Kiselyov, a lawyer practising in Kherson. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, from the Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 14 January 2000 the applicant’s husband, a police officer, was accidentally killed by his colleague, Mr K., during a training exercise. On the same day the Kherson Dniprovsky District Prosecutor’s Office (“the District Prosecutor’s Office”) instituted criminal proceedings concerning the incident.
1. Criminal proceedings against Mr K.
On 13 July 2000 the Kherson Dniprovsky District Court found that Mr K. had committed an unintentional homicide as a result of careless handling of a weapon but amnestied him under the Amnesty Act. This decision was final.
2. Criminal proceedings against other police officers
The internal police inquiry conducted on 16 January 2000 revealed poor organisation of the training exercise of 14 January 2000 and recommended disciplinary sanctions against the organisers.
On 1 September 2000 the District Prosecutor’s Office instituted criminal proceedings against other police officers involved in the organisation and conduct of the training exercise. The criminal case was closed on 30 October 2000 for lack of corpus delicti.
Between 28 November and 29 December 2000 and between 12 February and 29 March 2001 an additional investigation into the case was conducted and the proceedings were closed for lack of a causal link between the death of the applicant’s husband and the behaviour of police officers other than Mr K., who had been found guilty of careless handling of a weapon.
3. Compensation for damage
On 16 October 2000 a lump sum in the amount of 18,270 Ukrainian hryvnias (UAH) (3,894.68 euros (EUR)) was paid jointly to the applicant, her daughter and her parents-in-law. The applicant’s daughter started receiving in addition a monthly payment of UAH 284.69 (EUR 60.67) until she reached the age of majority.
On 6 November 2000 the Kherson Region Police Department (the Department”) purchased a two-room apartment in Kherson for the sum of UAH 19,300 (EUR 4,066.07) and granted it to the applicant. According to the applicant she sold it shortly after.
On several occasions, the Department also paid off the applicant’s public utility debts.
In addition to this, the Department provided the applicant with additional assistance, not foreseen by the relevant law. In particular, they helped organise the funeral and provided funds for the funeral itself, catering, instalment of the monument, and so on.
In 2002 the Department arranged a vacation on the Black Sea coast for the decedent’s daughter; in 2003-2005 the applicant, however, refused that offer.
In 2003-2004 the Department purchased school stationery, a school uniform, computer and printer for the applicant’s daughter.
4. Judicial proceedings for compensation
In March 2002 the applicant lodged a civil claim with the Kherson Suvorivsky District Court against the Kherson Regional Police Department (“the Police Department”) claiming 500,000 UAH (EUR 108,597.70) in compensation for non-pecuniary damage. The applicant named Mr K. as a third party.
On 30 July 2002 the court found in part for the applicant and ordered the Police Department to pay her 15,000 UAH (EUR 2,866.09) under Article 440-1 of the Civil Code.
Both parties appealed against the decision. The applicant considered the compensation awarded insufficient. The Police Department argued that the family of the deceased had already received an exceptional allowance and the insurance sum due to them under section 23 of the Police Act and that the Act did not provide for any other payments. It went on to refer to Article 56 of the Constitution and to the Resolution of the Plenary Supreme Court, and to suggest that any compensation other than the Act provided for was payable by the State Treasury from the national budget and not from the Department’s budget.
On 14 November 2002 the Kherson Regional Court of Appeal overruled the disputed decision and dismissed the applicant’s claim on the ground that, in ruling on the defendant’s liability for its employee’s death, the lower court had wrongly based its decision on the general provision in the Civil Code, whereas matters of compensation for insured police officers were governed by special provisions such as Article 23 of the Police Act and the Decrees of the Cabinet of Ministers 627 and 488 of 19 November and 19 August 1992 on compulsory State personal insurance of military personnel, conscripts and Ministry of Internal Affairs staff. The court of appeal observed that these special provisions said nothing about compensating insured persons for non-material damage.
On 29 July 2003 Supreme Court rejected the applicant’s appeal in cassation, having found no misapplication of domestic law by the appeal court.
B. Relevant domestic law and practice
1. Constitution of Ukraine, 1996
“Everyone has the right to compensation, at the expense of the State or bodies of local self-government, for material and moral damage inflicted by unlawful decisions, actions or omissions of bodies of state power, bodies of local self-government, their officials and officers during the exercise of their authority.”
2. Civil Code, 1963
Article 4401. Compensation for moral (non-pecuniary) damage
“Moral (non-pecuniary) damage caused to a person or organization by the acts of another person shall be compensated for by the latter unless he/she denies that that moral damage was caused through his/her fault. Moral damage shall be compensated for in monetary or other form upon a court decision regardless of compensation for pecuniary damage.
The amount of compensation shall be determined by a court, bearing in mind the substance of the claims, the nature of the acts which caused the damage, the physical and mental suffering of the victim, and other negative consequences. The amount of compensation cannot be less than [the equivalent of] five minimum salary payments.”
Article 441. Liability of an organization for damage caused through the fault of its employees
“An organization is under the obligation to compensate for damage caused through the fault of its employees during their working time.”
Article 442. Liability for damage caused by unlawful acts of state and public organizations, and officials
“Damage caused to a person by the unlawful acts of state and public organizations, and officials carrying out their official duties in the sphere of administrative management shall be compensated for on a general basis (Articles 440 and 441 of the present Code) unless otherwise provided for by laws. Liability for damage caused by organizations as a result of those acts shall be borne under the procedure set forth by laws.”
3. Law of Ukraine “On Police” No. 565-XII of 20 December 1990
Article 23. State insurance and compensation for damage in case of death or injury of policemen
“Every policeman is subject to state compulsory insurance equivalent to the amount 10 years of his salary in his last position to be paid from the corresponding budgets as well as funds received in accordance with contracts with ministries, institutions, enterprises, and organizations...
In the event of the death of a policeman while acting in his official capacity a lump sum in the amount of the equivalent of 10 years of his salary as well as a monthly pension in the amount of his salary in his last position shall be paid to his family members.
The right to obtain accommodation shall be reserved for the family of the deceased policeman. This accommodation shall be granted within three months to that family as a matter of priority.
Children of the deceased policeman under the age of majority or his dependants reserve the right to be granted benefit payments in connection with accommodation, public utilities, fuel ...”
4. Order 488 of the Ukraine Cabinet of Ministers dated 19 August 1992 on compulsory State personal insurance of military personnel and conscripts and payment to them or their families of sums insured
Under section 2(6) of the order, the sum insured for death or unfitness for employment is paid independently of any other payments arising from insurance or injury compensation.
5. Order no. 627 of the Ukraine Cabinet of Ministers dated 19 November 1992 on compulsory State personal insurance of staff of the Ministry of Internal Affairs
Under section 3(2) of the order, the sum insured for death or unfitness for employment is paid independently of any other payments arising from insurance or injury compensation.
6. Resolution no. 4 of the Plenary Supreme Court of 31 March 1995 on court practice in cases on compensation for moral (non-pecuniary) damage (with amendments of 25 May 2001)
“10-1. While examining cases concerning claims for compensation for moral damage on the basis of Article 56 of the Constitution the courts shall keep in mind that if such damage is caused by the unlawful decisions, actions or omission of bodies of state power, bodies of local self-government, their officials and officers during the exercise of their authority, it should be compensated for at the expense of the State or of the bodies of local self-government ...
While deciding on disputes concerning compensation for moral damage caused to citizens by the unlawful decisions, acts or omissions of state bodies, officials or officers, the courts should take into account that these state bodies, officials or officers shall be liable in such cases, unless otherwise provided for in the relevant laws (e.g. Article 9 of the Law of Ukraine “On Criminal Investigation”) ...”
Under Article 2 of the Convention the applicant complained that the regional department of the Ministry of Internal Affairs in charge of the training exercise resulting in her husband’s death had failed to take all the effective and appropriate measures necessary to protect her husband’s life. Under Article 6 of the Convention she complained that the investigation and the criminal proceedings against Mr K., as well as the civil proceedings for compensation, had been unfair. She also complained about the refusal to reopen the criminal case against Mr K.
The Court notes that the applicant’s complaints concerning the outcome of criminal proceedings against Mr K., who killed the applicant’s husband, must be rejected for being submitted too late as the final decision was given on 13 July 2000 while the application was lodged almost three years later.
As to the applicant’s complaints about the failure to prosecute other persons involved in organising and conducting training, they must be rejected for non-exhaustion of domestic remedies, given that the applicant failed to challenge the prosecutor’s refusals to establish criminal liability of the above persons before the domestic courts.
It follows that these complaints must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law...”
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Government considered that the national authorities have acknowledged the violation and provided the applicant with due redress. They noted that the relevant law obliged the State to have a special insurance scheme for law-enforcement officers and provided for different payments and forms of compensation in case of death of the insured officer. They maintained that despite the fact that the compensatory measures were not divided into compensation for material damage and compensation for non-pecuniary damage, the compensation and assistance provided to the applicant could not be considered as compensation for pecuniary damage only. From the compensation received under the law at least the apartment and the lump sum could arguably qualify as compensation for non-pecuniary damage. Furthermore, the applicant received other assistance from the Police Department which was not foreseen by the law. They considered that the applicant received sufficient compensation for non-pecuniary damage and therefore could not still claim to be a victim of the alleged violation. They considered that the applicant’s complaints were incompatible ratione personae.
The applicant considered that the compensation and assistance provided to her was insufficient and could not deprive her of the right to claim compensation for non-pecuniary damage.
The Court recalls that the nature of the right at stake has implications for the type of remedy the State is required to provide under Article 13. Where violations of the rights enshrined in Article 2 are alleged, compensation for pecuniary and non-pecuniary damage should in principle be possible as part of the range of redress available (see Paul and Audrey Edwards, cited above, § 97; Z and Others, cited above, § 109; T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 107, ECHR 2001-V; and Öneryıldız v. Turkey [GC], no. 48939/99, § 147, ECHR 2004 XII).
As it appears from the relevant domestic law, the Civil Code sets forth a general obligation to compensate for damage (Articles 440 and 441) and in case of liability of public authorities damage should be compensated for on a general basis unless otherwise provided for by law (Article 442). This derogation from the general rule, however, does not appear to dispense the relevant authority from paying the compensation, but rather to establish special schemes for particular categories of cases. The death of the applicant’s husband, who was a police officer and died on duty, falls within one of those special categories. The State introduced a special compensation scheme in case of death of a law-enforcement officer, and in the Court’s opinion this scheme, as set forth in law and as applied in practice in the instant case, does not appear to be inadequate or insufficient. The Court also agrees with the Government that at least some of these compensatory measures (the apartment and her part of the lump sum) could be viewed as compensation for non-pecuniary damage. Furthermore, she also accepted some other financial assistance from the Police Department which was not foreseen by the law (see the Compensation for damage sub-part in the Facts above). In these circumstances, the applicant’s complaint about a lack of any compensation for non-pecuniary damage does not appear to be substantiated and the compensation awarded to the applicant can be considered sufficient in the circumstances of the case (see, mutatis mutandis, Hay v. the United Kingdom (dec.), no. 41894/98, ECHR 2000 XI).
It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Peer