CASE OF LYALYAKIN v. RUSSIA
(Application no. 31305/09)
12 March 2015
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Lyalyakin v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Paulo Pinto de Albuquerque,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 17 February 2015,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 31305/09) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Mikhail Aleksandrovich Lyalyakin (“the applicant”), on 29 May 2009.
2. The applicant was represented by Ms L. Zhukova, Mr S. Semushin, Mr M. Bereza and Mr V. Andreev, lawyers from the Interregional Centre for International Legal Protection of Servicemen, an NGO based in the town of Nizhniy Novgorod. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
3. The applicant alleged that he had been ill-treated during his military service and that the authorities had failed to investigate the incident.
4. On 4 January 2011 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1988 and lives in the town of Nizhniy Novgorod.
A. The applicant’s military service and his attempts to escape
6. On 14 December 2006 the Military Conscription Committee of the Moscow District of the town of Nizhniy Novgorod examined the applicant’s medical condition. Having declared him fit, they conscripted him into the army. The applicant was given the rank of junior sergeant and sent to preparatory Military Unit no. 73864, located in the town of Kovrov in the Vladimir Region.
7. Six months later, on 28 May 2007, he was transferred to Military Unit no. 34605 of the town of Volgograd of the Volgograd Region.
8. The applicant submitted that personal relations among the servicemen of the unit were tense and violent. The applicant had panicked and decided to escape.
1 The applicant’s first attempt to escape
9. On 4 June 2007 the applicant and junior sergeant V. ran away from the unit.
10. The command of the unit launched a search operation to find the fugitives.
11. On the morning of 5 June 2007 deputy commander major A. and captain K. located and apprehended the applicant and junior sergeant V. close to the nearby village of Stepnoy.
12. According to the applicant, on their way back to the unit A. and K. had threatened to execute or drown them. The threats had frightened the applicant to such an extent that he decided to escape again.
13. During a stopover the applicant made another attempt to escape. Shortly thereafter he was caught in a nearby swamp. The escorting officers stripped him of his clothes and put him in the cargo compartment of a military truck which brought both fugitives back to the unit.
14. On 6 June 2007 the applicant and V. were brought before battalion commander Ch., who lined up the battalion. The applicant and V. ‒ allegedly stripped naked ‒ were made to stand in front of the other servicemen. It does not appear that there were any female service personnel present on this occasion. The Government submitted that the applicant and V. had been wearing military briefs. The battalion commander publicly condemned and reprimanded them.
15. Thereafter the applicant was brought to the commander’s office and was asked to prepare an explanatory note concerning the events of 4-6 June 2007.
16. The applicant stated that after he had drafted the explanatory note, the commander had ordered company commander lieutenant S. to load a machine gun with bullets, go outside and execute the applicant. The applicant was taken outside and placed up against a wall. Captain Kar. aimed a machine gun at him. The applicant pleaded for mercy and promised “to become the best sergeant in the unit”, whereupon Kar. brought him back into the commander’s office. At this moment the applicant heard a machine gun being discharged and thought that V. had just been executed.
17. Some time later the battalion commander ordered officer G. to dress the applicant in a military protection suit. The suit consisted of a mask, protective cloak, rubberized stockings and gloves and was unsuitable for continuous use in hot weather. The applicant’s fellow servicemen then shaved his head and warrant officer G. painted a five-pointed star on his head using brilliant green antiseptic. A fellow serviceman then delivered a few blows to the applicant’s body and head with an army belt buckle. Then another soldier put a leash around his neck and walked him around the training ground. The applicant was also threatened with sexual violence if he ever decided to escape again.
18. According to the applicant, the following night after lights-out junior sergeant S. and private soldier O. had removed the leash from his neck, attached him to a pole in the centre of the tent which served as their sleeping quarters, and made him read aloud the sergeant’s military manual, using a lighter and a pocket lamp for light. At around 2 a.m. the applicant was further intimidated by S., who told him that his friends in the town of Nizhniy Novgorod would find and rape him when his military service was over.
19. The applicant stated that the next morning he was again ordered to put on the military protection suit, the collar and the leash and escorted by junior sergeant Zh. for breakfast dressed in this way. He was then taken to the battalion commander. The applicant had asked him for permission to take off the suit, the collar and the leash. The commander said he could do so as soon as he had washed the star off his head. For the next two hours the applicant washed his head in a river flowing nearby, using only his hands and the sand.
2. The second attempt to escape
20. On 7 June 2007 ‒ surveillance of the applicant having been relaxed ‒ he escaped and, this time, reached his family in the town of Nizhniy Novgorod.
21. According to the applicant, after his escape, the battalion commander Ch. had ordered his fellow servicemen to keep silent about the ill-treatment.
B. The investigation into the alleged ill-treatment
1. Opening of the Prosecutor’s inquiry and medical examination of the applicant
23. On 27 June 2007 the applicant complained to the Military Prosecutor’s Office of the Nizhniy Novgorod Garrison (“Nizhniy Novgorod Prosecutor’s Office”) about his ill-treatment in the Military Unit. In his claim he provided an account of the alleged events, stating that his fellow servicemen Vl., Kats., Zai., Ryb., Mal. and Fed. could confirm the facts of his ill-treatment and “hazing”.
24. The Nizhniy Novgorod Prosecutor’s Office opened a preliminary inquiry into his allegations and held that the applicant should be transferred to another military unit pending the outcome of the proceedings.
25. On 28 June 2007 the Nizhniy Novgorod Prosecutor’s Office ordered an expert psychiatric examination of the applicant.
26. The expert examination of the applicant was conducted between 4 and 26 July 2007 in Psycho-Neurological Hospital No. 1 of the Nizhniy Novgorod District.
27. On 21 August 2008 the Military Medical Commission of the Nizhniy Novgorod Garrison diagnosed the applicant with “a personality disorder of the emotional unstable type, with variable amelioration, contracted during his military service” and held that he was “fit with restrictions” for military service.
28. Owing to the above diagnosis, the applicant was prematurely discharged from the army.
2. First round of the investigation
29. The Nizhniy Novgorod Prosecutor’s Office joined the inquiry proceedings into the applicant’s complaints of 26 June 2007 with the inquiry into similar complaints by junior sergeant V. dated 1 July 2007. The case was then sent for investigation to the Military Prosecutor’s Office of the Volgograd Garrison (“Volgograd Prosecutor’s Office”).
30. On 16 July 2007 an investigator of the Volgograd Prosecutor’s Office issued a refusal to open a criminal case. In this decision it referred to statements given by the alleged perpetrators, including the battalion commander Ch., deputy commanding officer major A., captain K., lieutenant S., captain Kar., warrant officer G. and junior sergeant Zh., and to the statements of other servicemen who had been questioned concerning the applicant’s allegations. The refusal reads:
“In the course of the inquiry carried out into [the applicant’s] request, the investigating authorities have established the following:
Junior sergeant [V.] claimed that the complaints of 26 June and 1 July 2007 concerning ill-treatment were false. No acts of ill-treatment against him or [the applicant] had taken place either in the period under examination (6 and 7 June 2007) or during their military service in the [Military Unit]. He did not see any injuries such as scratches, bruises or haematomas on [the applicant’s] body. According to junior sergeant [V.], [the applicant] gave the false statements so as to avoid criminal liability for the unauthorised leave from the [Military Unit] on 4 June 2007. In private conversations [the applicant] had often remarked that he did not want to serve in the army. The simulation of psychiatric problems and the false statements about ill-treatment are in the junior sergeant’s opinion no more than a means of avoiding military service. During questioning the latter also stated that [the applicant] had no psychiatric problems and that during his military service he had not shown signs of any unusual behaviour.
Junior sergeant [V.] also stated that on 1 July 2007 during his stay in hospital he had been contacted by [two] representatives of a Russian NGO, “Mothers’ Right” (“Материнское право”). They showed him [the applicant’s] statements of 26 June 2007 and promised to assist with his transfer to a military unit in his place of residence in exchange for giving similar statements capable of confirming [the applicant’s] allegations. As he very much wanted to perform his military service close to his home in the Kaliningrad Region, he accepted their offer. Later he realised that it was a mistake, because he had no intention of slandering anybody. He explained that all the facts mentioned in his [complaints] of 1 July 2007 were false. Neither he nor [the applicant] had been ill-treated by their fellow servicemen. To confirm his statements he presented the business card which the [NGO representative] had given to him ...
The battalion commander [Ch.] stated that the allegations of ill-treatment mentioned in the statements of 26 June and 1 July 2007 were false. He further stated that he had not seen any scratches, bruises or haematomas on [the applicant] or junior sergeant [V.]. Moreover, they had not lodged any complaints about the ill-treatment allegedly committed by the servicemen of the [Military Unit]. According to the battalion commander [Ch.], [the applicant] had made up the allegations either to avoid criminal liability for the unauthorised leave from the [Military Unit] on 4 June 2007, or to avoid military service by way of falsification of his mental problems. He noted that [the applicant] was of sound mind and that he had never shown signs of any unusual behaviour. The battalion commander [Ch.] speculated that [the applicant] simply did not want to continue his military service because it was so hard. According to [Ch.], only negative references could be provided on account of [the applicant’s] personality. For instance, [the applicant] had left his place of service several times without the authorisation of his superiors. Although he followed the orders of his commander, he required constant supervision. He was a sly and dodgy person, who did not understand the meaning of his military duty. During private conversations [the applicant] expressed his intention of leaving the [Military Unit].
Deputy commanding officer major [A.], captain [K.], lieutenant [S.], captain [Kar.] and warrant officer [G.] gave statements which were essentially similar to the statements of the battalion commander [Ch.].
During the inquiry the investigative authorities also questioned [Kats., a witness on the applicant’s behalf]. He stated that [the applicant’s and V.’s] statements of 26 June and 1 July 2007 had been false and that [the applicant] had given them to avoid criminal liability for the unauthorised leave from the [Military Unit] on 4 June 2007. He also stated that between 20 November 2005 and 27 May 2007 he had served with [the applicant] in the military unit of the Town of Kovrov of the Vladimir Region. During this period [the applicant] ‒ without permission ‒ left the military unit for two weeks. Later, he returned of his own volition and explained that he did not like serving in the army. According to [the applicant’s] confession, he returned only because of his father, with whom he had had an argument [on account of his refusal to serve in the army]. [The applicant] was a smart, sly and a dodgy person who was able to avoid military service by making up a good and credible excuse. [Kats.] stated that [the applicant] was a mentally sound person who did not show signs of unusual behaviour. [The applicant] showed a negative attitude towards his military duty and was an irresponsible person who did not like to work. He did not carry out his commander’s orders promptly and always needed to be under supervision. In private conversations he mentioned that he wanted to leave military service and go to the town of Sochi to earn some money.
The [applicant’s and junior sergeant’s V.’s] fellow servicemen [Mal., Ryb., Zai., Fed., Ost., and junior sergeant Zh.], who were separately interviewed by the investigator, gave similar statements.
From the above it is apparent that [the allegations of the applicant and junior sergeant V.] ... remained unconfirmed ... Accordingly, the request to institute criminal proceedings should be dismissed owing to the absence of the alleged criminal offences...”
31. With assistance from the NGO “Mothers’ Right”, the applicant challenged the decision of 16 July 2007 before a higher authority. The appeal claim was supported by statements made by his fellow serviceman Gal., who in written submissions dated 26 July 2007 confirmed the applicant’s allegations and stated that all the soldiers of the Military Unit had been intimidated by the battalion commander Ch., who forbade them to give true statements, and by warrant officer G., who threatened the witnesses concerned.
32. On 20 September 2007 the Military Prosecutor’s Office of the North-Caucasus Military Circuit quashed the decision of 16 July 2007. Without citing specific shortcomings, it stated that the investigator’s conclusions had been baseless. In its relevant part this decision reads:
“On 14 September 2007 [the lawyer of the NGO Mothers’ Right] appealed against the decision of 16 July 2007.
Examination of the appeal statements has shown that the [investigator from the Volgograd Prosecutor’s Office] did not perform a thorough inquiry. Accordingly, his decision must be quashed as ill-founded.
From the case file it is apparent that the circumstances ... surrounding [the apprehension of the applicant] and junior sergeant [V.] by deputy commanding officer major [A.] and captain [K.] after their escape from [the Military Unit] and the subsequent ill-treatment [of the fugitives] were not sufficiently established. Consequently, the reasoning underlying the decision of 16 July 2007 is deficient.
From the above it is apparent that [the investigator’s] conclusion that the [applicant’s] complaints of ill-treatment in respect of him and [V.] lacked a sound basis and was premature. Accordingly, the decision of 16 July 2007 is groundless.”
3. Second round of the investigation
33. In the context of the second round of the inquiry, the investigator conducted additional interviews with junior sergeant V., the battalion commander Ch., commanding officer major A. and captain K. regarding the applicant’s apprehension, undressing, and delivery to the Military Unit. Their additional statements were summarised as follows:
“During the additional interview with junior sergeant [V.], the latter explained that on the day following his unauthorised leave on 4 June 2007, commanding officer major [A.] and captain [K.] had apprehended them near Stepnoy, put them in a Ural truck, and brought them back to the [Military Unit]. On their way to [the Military Unit] [the applicant] asked [V.] to escape with him, but the latter refused. [The applicant] attempted to escape on his own, but was arrested by the escorting officers. After the unsuccessful attempt to run away, commanding officer major [A.] ordered them to take all their clothes off. They remained only in military briefs. This order was given to prevent their attempts to abscond. These events took place during the summer, and so he felt comfortable wearing only military briefs, and his human dignity was not humiliated. His statements of 1 July 2007 had been drafted following a sample prepared by [the applicant] and contained the false allegation that they had been standing completely naked...
During his additional interview, battalion commander [Ch.] stated that on 6 June 2007 between 2 and 4 p.m. he had lined up his battalion. At this time the escorting officer brought [the applicant] and junior sergeant [V.] to him. On 4 June 2007 they had left the [Military Unit] without permission and were later arrested near the village of Stepnoy. The escorting officers stated that after the arrest [the applicant] and [junior sergeant V.] had been undressed and left with only their military briefs on. This was done to prevent them from fleeing. After this, the battalion commander [Ch.] had ordered the [applicant] and junior sergeant [V.] to put their clothes back on. He talked to the fugitives and reprimanded them.
During the additional interview with commanding officer major [A.], the latter confirmed that [the applicant] and [V.] had been brought onto the site of [the Military Unit] wearing only military briefs. After their arrival they had been made to stand in front of their battalion formation. The commanding officer had ordered them to put their clothes back on and had talked to them. [The applicant] and [V.] were reprimanded.
When questioned further, captain [K.] noted that on 6 June 2007, after the arrest of [the applicant] and [V.] near the village of Stepnoy, [the applicant] had attempted to abscond. After this [the applicant] had been caught by the escorting officers, who ordered him to adopt “position no.1”, i.e. to take all of his clothes off and remain only in military briefs...”
34. On 8 October 2007, having regard to the above statements and evidence previously obtained, the investigator refused to open a criminal case to examine the applicant’s allegations. He confirmed his previous findings about the lack of criminally punishable offences. As regards the episodes of the applicant’s undressing, the investigator reasoned as follows:
“There is no indication of any criminal offence under Article 286 § 1 of the Criminal Code of Russia [“Abuse of power”] in the actions of [K.], [A.] and [Ch.] ..., because the order given to [the applicant] and junior sergeant [V.] to remove their clothes was issued solely with a view to preventing their escape. The commander of the battalion had not humiliated [the applicant] when making him stand wearing only military briefs in front of the battalion formation because later the commander had ordered him to put all his clothes back on. [The applicant] was standing half-naked in front of the battalion formation for a short period of time. The actions of captain [K.] and commanding officer [A.] constituted a minor offence, which entailed no social danger. Accordingly, [the applicant’s] request to institute criminal proceedings against them should be dismissed. The circumstances of the present case do not indicate any appearance of a criminal offence [within the meaning of the Criminal Code of Russia].”
35. On 11 February 2008 the applicant’s lawyer challenged the decision of 8 October 2007 in court.
36. On 6 October 2008 the impugned decision was quashed by the Investigating Committee of the Prosecutor’s Office of the Volgograd Garrison, which held the following:
“The examination of the impugned decision shows that [the investigator] performed the inquiry in a perfunctory manner. His decision was premature and ill-founded.
In particular, he did not interview all of the potential witnesses. It is accordingly impossible to render a well-founded decision concerning the impugned ... events.
Taking into account the above I conclude that the refusal to institute criminal proceedings issued by [the investigator] on 8 October 2007 must be quashed as ill-founded.”
37. On 7 October 2008 the District Court referred to the decision of 6 October 2008, having terminated court proceedings in connection with the applicant’s complaint.
38. The case was returned for additional investigation.
4. Third round of the investigation
39. Between 6 and 16 October 2008 the investigator questioned thirty servicemen from the Military Unit. They did not confirm any of the applicant’s allegations.
40. On 16 October 2008 on the basis of their statements and the previously collected pieces of evidence, the investigator refused to institute criminal proceedings. The investigator did not provide the content of the newly added statements in his decision of 16 October 2008 and it therefore contained no additional information on the matter but essentially read the same as the previous one.
41. According to the applicant, he received a copy of this decision on 25 February 2009 and then challenged it in court.
42. On 10 March 2009 the impugned decision was quashed by a higher investigative authority, which stated that
“Although the inquiry was performed in a comprehensive manner, the investigator did not take into account the public reaction [in response to this case]. He should have ordered the military counter-intelligence services to perform an inquiry into the allegations [of the applicant and V.]. [Accordingly], the impugned decision is premature and ill-founded.
Taking into account the above, I conclude that the refusal to institute criminal proceedings issued on 16 October 2007 must be quashed as ill-founded.”
43. The court proceedings were terminated and the case was sent back to the investigating authorities for further investigation of the matter.
5. Fourth round of the investigation
44. During this round of the investigation the investigator performed an “additional inquiry” which “confirmed the statements made by [the applicant’s] fellow servicemen”.
45. On 20 March 2009 the investigating authorities again refused to open a criminal case in respect of the events. In addition to the reasoning which they had used before, they relied on the results of the “additional inquiry” which had established “no indication of criminal events”.
46. On 20 April 2009, after his military service was over, junior sergeant V. contacted the Soldiers’ Mothers Committee and stated that the initial statements he had made concerning his ill-treatment and the ill-treatment of the applicant had been truthful. He explained that his later statements had been made under pressure from the command of the Military Unit. In his statements he mentioned that after the escape of June 2007 he had been beaten by the officers and had been kept in hospital for treatment in this connection. These statements were sent to the investigating authorities.
47. On 26 January 2011 the higher investigating authorities quashed the decision of 20 March 2009, providing a detailed list of the established defects of the inquiry. In its relevant part the decision read:
“Despite the recommendations of [the higher authority] ordering the military counter-intelligence services to conduct an inquiry into the allegations of the [applicant] and [V.], the decision of 20 March 2009 was issued in the absence of such an inquiry.
According to the claim which was brought [by the applicant] under Article 125 of the CCrP, [Gal.] and [V.] had directly witnessed the alleged ill-treatment. However, the competent authorities did not conduct a fresh interview with [V.] and never interrogated [Gal.].
The inquiry at issue was not comprehensive since the investigating authorities did not investigate [V.’s] alleged ill-treatment ... of 2007 ...
In the circumstances of the present case it is impossible to issue a lawful decision with proper reasoning without taking additional investigative steps, including the conduct of an inquiry carried out by the military intelligence services and the questioning of [Gal.], [V.] and doctors attached to the military units. The investigating authorities must also assess the allegations which were made by [V.], and [the applicant] in their statements of 20 April 2009 and 11 February 2008 respectively. The former servicemen of the [Military Unit] should be re-interviewed too, if necessary.”
48. The case was remitted to the investigator for an additional investigation.
6. Fifth round of the investigation
49. In the context of this round, the competent authorities studied the evidential material from an inquiry which had been opened into Gal.’s allegations that officers who were pointed out by the applicant had ill-treated and “hazed” him and other serviceman of the Military Unit on several occasions. This inquiry resulted in a decision dated 8 October 2008 not to open a criminal case.
50. It does not seem that the investigative authorities questioned Gal. or complied with any of the recommendations set out in the decision of 26 January 2011.
51. In their decision of 11 February 2011 not to open a criminal case, they repeated their previous arguments, adding that the allegations made by Gal. were refuted by the results of the investigation of 2008.
52. The parties did not provide any documents concerning subsequent developments. From the Government’s submissions of 2 May 2011 it is apparent that on 23 March 2011 the higher investigating authorities again quashed the decision of 11 February 2011 and remitted the case for additional investigation, noting that the investigator had again failed to question Gal., to conduct an additional interview with junior sergeant V., to perform an inquiry into V.’s medical treatment of 2007 and to carry out other investigative actions.
53. The case file contains no information concerning the further development of the investigation.
II. RELEVANT DOMESTIC LAW
A. Prohibition of torture and other ill-treatment
54. The relevant provisions of the Constitution of the Russian Federation read:
“Human and civil rights and freedoms shall be directly enforced. They shall determine the meaning, content and application of laws, the activities of the legislative and executive authorities, and local self-government and shall be ensured by the administration of justice.”
“1. Human dignity shall be protected by the State. Nothing may serve as a basis for derogation therefrom.
2. No one shall be subjected to torture, violence or other severe or degrading treatment or punishment ...”
B. Standards of discipline in the Russian Army
55. The Statute of Military Service of the Russian Federation, adopted by Presidential Decree no. 2140 on 14 December 1993 (in force until 1 January 2008), provided that the commander of a military unit bore personal responsibility before the State for all aspects of the life and functioning of the unit, its subdivisions and each serviceman (clause 30). The military commander of the unit was responsible for constantly maintaining strict military discipline and high standards in respect of the morale and psychological well-being of the personnel under his command (clause 76). The military commander was required to study thoroughly the personnel under his command by means of personal communication, to be familiar with the personal and psychological characteristics of his subordinates, and to be involved in their day-to-day instruction (clause 81).
1. Pre-investigation inquiry
Article 140. Grounds for opening a criminal case
“1. A criminal case may be opened in the event of:
a) a complaint of a crime ...
2. Sufficient data disclosing elements of a crime shall serve as grounds for opening a criminal case.”
“1. An inquiry officer, inquiry agency, investigator, or head of an investigation unit shall accept and examine every report of a crime ... and shall take a decision on that report ... no later than three days after the filing of the report ... [having] the right to order that the examination of documents or inspection be performed with the participation of experts. ...
3. A head of an investigation unit or head of an inquiry agency ... may extend the time period specified in paragraph (1) of this Article to up to ten days or, where the examination of documents or inspections are to be performed, up to 30 days ...”
Article 145. Decisions to be taken following examination of a report of a crime
“1. An inquiry officer, inquiry agency, investigator or head of an investigation unit shall issue one of the following decisions as a result of the examination of a report of a crime:
(1) to open a criminal case, in accordance with the procedure established by Article 146 of the present Code;
(2) to refuse to open a criminal case;
(3) to transfer the report of a crime [to a competent investigating authority] with the relevant jurisdiction ...”
“1. In the event of the absence of grounds for opening a criminal case, a head of an investigation unit, an investigator, inquiry agency or inquiry officer shall issue a decision refusing to open a criminal case. ...
5. A refusal to open a criminal case may be appealed against to a prosecutor, head of an investigation unit or court in accordance with the procedures established by Articles 124 and 125 of the present Code.
6. ... Having declared a refusal by an investigator ... to open a criminal case unlawful or unfounded, a head of a relevant investigation unit shall set aside the decision and open a criminal case, or remit the evidential material for additional examination together with his or her instructions fixing a deadline for their execution.
7. Having declared a refusal to open a criminal case unlawful or unfounded, a judge shall issue a decision to that effect and transmit it for execution to a head of an investigation unit ... and duly notify the applicant.”
Article 149. Referral of a criminal case
“After taking a decision to open a criminal case ... :
(2) an investigator shall start a preliminary investigation; ...”
Article 125. Judicial examination of complaints
“1. The decisions of an inquiry officer, investigator, or head of an investigation unit refusing to open a criminal case ... or any other decisions and acts (failure to act) which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice, may be appealed against to a district court ...
3. A judge shall examine the legality and the grounds of the impugned decisions or acts ... within five days of receipt of the complaint ...
5. Following examination of the complaint, the judge shall issue one of the following decisions:
(1) to declare the decisions or acts (failure to act) of the official unlawful or unfounded and order the official to rectify the breach committed;
(2) to dismiss the applicant’s complaint ...”
57. A criminal case should not be opened or should be discontinued if the alleged offence has not been committed (Article 24 § 1 (1) of the CCrP) or if the constituent elements of a criminal offence are missing (Article 24 § 1 (2) of the CCrP).
2. Preliminary investigation
58. The preliminary investigation is regulated by Section VIII (Articles 150-226) of the CCrP. The investigative measures for establishing the facts of a criminal case and collecting evidence which can be undertaken in the course of the preliminary investigation include the questioning of a suspect, an accused, a victim or a witness; face-to-face confrontation between persons whose statements are contradictory; on-site verification of statements; identification of a person or object; search of persons and premises; seizure of items and documents; phone-tapping; and reconstruction of actions or circumstances. If, on the completion of the preliminary investigation, there is sufficient evidence to support charges against an accused, the investigating authority prepares an indictment which, subject to prior approval by a prosecutor, is then forwarded to a court for trial.
59. Investigative measures such as the examination of the crime scene, the examination of a dead body and the physical examination of a suspect, an accused, a victim or a witness may be carried out, if necessary, before a criminal case is opened (Articles 176 § 2, 178 § 4 and 179 § 1 of the CCrP).
III. OTHER RELEVANT MATERIALS
60. For a summary of relevant materials concerning conditions of service in the armed forces (including bullying, “dedovschina”), see Perevedentsevy v. Russia, no. 39583/05, §§ 70-73, 24 April 2014.
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
61. The applicant complained that servicemen from his Military Unit had ill-treated him and that no proper investigation into these allegations had been carried out by the authorities. The Court will examine these complaints under Article 3 of the Convention, which provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. The parties’ submissions
62. As regards the alleged ill-treatment, the Government stated that the officers who apprehended the applicant and V. after their attempt to escape had indeed ordered them to take their clothes off and to remain only in their military briefs. This had been done to prevent them from fleeing and not to humiliate them. After they had been delivered to the Military Unit they had been made to stand in front of their battalion wearing only their military briefs, but this had been for only a limited period of time. The commander had ordered them to put their clothes back on shortly afterwards.
63. Relying on the results of the preliminary inquiry into the applicant’s allegations, the Government argued that his remaining allegations of ill-treatment were false. They noted that before the unauthorised absence of June 2007 the applicant had not complained about any ill-treatment in his Military Unit to the Military Prosecutor’s Office.
64. As regards the adequacy of the investigation, they argued that it had been thorough, as the competent authorities had questioned more than fifty servicemen from the Military Unit. Gal. had not been questioned because he had not been a direct witness of the alleged events and, accordingly, his statements could not affect the outcome of the inquiry. Lastly, the Government noted the uncooperative behaviour of the applicant, who had refused to provide the investigator with additional explanations concerning the circumstances surrounding his unauthorised absence.
65. The applicant maintained his complaints. According to him, his allegations of ill-treatment had been confirmed by V. and Gal. The remaining servicemen had given false statements because they had been intimidated by the command of the Military Unit.
B. The Court’s assessment
66. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
(a) The alleged ill-treatment
(i) General principles
67. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3.
68. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim (see Tekin v. Turkey, 9 June 1998, § 52, Reports of Judgments and Decisions 1998-IV). Moreover, in considering whether or not treatment is “degrading” within the meaning of Article 3, the Court will also have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (see, for example, Raninen v. Finland, 16 December 1997, § 55, Reports 1997-VIII).
69. The Court has consistently stressed that the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-XI). Mandatory military service often involves such an element, as do measures depriving a person of his liberty. However, many acts that would constitute degrading or inhuman treatment in respect of prisoners may not reach the threshold of ill-treatment when they occur in the armed forces, provided that they contribute to the specific mission of the armed forces in that they form part of, for example, training for battlefield conditions (see Chember v. Russia, no. 7188/03, § 49, ECHR 2008). The public nature of the treatment may be a relevant or aggravating factor in assessing whether it is “degrading” within the meaning of Article 3 (see Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 115, ECHR 2014 (extracts)).
70. The State has a duty to ensure that a person performs military service in conditions which are compatible with respect for his human dignity, that the procedures and methods of military training do not subject him to distress or suffering of an intensity exceeding the unavoidable level of hardship inherent in military discipline and that, given the practical demands of such service, his health and well-being are adequately secured (see Chember, cited above, § 50).
71. The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25).
(ii) Application of these principles to the present case
(α) The episode of the applicant’s undressing
72. The Court notes that the circumstances surrounding the applicant’s undressing by the escorting officers in June 2007 are disputed between the parties. Whilst the applicant stated that he had been stripped naked, the Government argued that he had remained in military briefs.
73. The Court observes that it is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact where this is not rendered unavoidable by the circumstances of a particular case (Bozdemir and Yeşilmen v. Turkey, no. 33860/03, § 48, 9 July 2013). In the present case it is not willing to accept the applicant’s statement that on his way back to the military unit in June 2007 he was stripped naked (see paragraphs 13 and 14 above), because these allegations were refuted by the results of the ensuing investigation (see paragraphs 33 and 34 above) and the applicant did not provide any evidence to the contrary which would satisfy the standard of proof “beyond reasonable doubt”.
74. Taking into account the admission of the domestic authorities and the Government before this Court that the applicant had been undressed and delivered to the military unit wearing only military briefs, the Court’s first task would be to examine whether such treatment attained the threshold of Article 3 of the Convention.
75. The Court notes that the forced stripping of a person is a strong measure which often implies a certain level of distress. In certain circumstances it might attain the “minimum level of severity”, provided by Article 3 of the Convention. Thus in the case of Valašinas v. Lithuania (no. 44558/98, § 117, ECHR 2001-VIII), in which the applicant, a male prisoner, was stripped naked in the presence of a female prison officer ‒ who in the course of searching him touched his sexual organs and his food with her bare hands ‒ the Court found a breach of Article 3. In the case of Wiktorko v. Poland (no. 14612/02, §§ 54-55, 31 March 2009), the Court held that the forcible undressing of a female applicant by a male personnel at a de-intoxification centre and her subsequent lashing to a bed with belts for about ten hours constituted degrading treatment within the meaning of Article 3 of the Convention. In the case of Iwańczuk v. Poland (25196/94, §§ 54-60, 15 November 2001), the Court held that while strip searches might be necessary on occasions to ensure prison security or prevent disorder in prisons, they had to be conducted in an appropriate manner. The prison guards verbally abused and derided the applicant with their behaviour intended to provoke feelings of humiliation and inferiority, which, given the applicant’s personality, his peaceful behaviour during the entire period of his detention, the fact that he was not charged with a violent crime and that he had no previous criminal record, showed a lack of respect for his human dignity, in violation of Article 3 of the Convention.
76. Turning to the facts of the present case, the Court notes firstly the applicant remained in his military briefs on two occasions (see paragraphs 13, 14, 33 and 34), after his unsuccessful attempt to escape on 5 June 2007 and on the next day during the lining up of the battalion. Although the impugned measures distressed the applicant, the intensity of such distress was less than would have been the case had he been stripped naked. It is also true that the episode took place in the summer period, lasted for a short period of time and ended with the applicant and the serviceman being ordered to put their clothes back on and a reprimand.
77. The Court would note, however, that the investigating authorities and the respondent Government in their submissions have failed to examine in any detail the issue of necessity of the use of such measures in the circumstances of the case. In particular, the Court notes that requiring the applicant to stand in front of the battalion wearing only his military briefs happened after the applicant had been brought under control, admittedly after having tried to escape a few times. The respondent Government have not explained why such a measure was necessary to prevent his or other soldiers’ escape, nor has it referred to any other reasons in this connection (see, mutatis mutandis, Chember v. Russia, cited above, §§ 53-57). The Court does not overlook the specific military context of the case and the need to maintain discipline in the given military unit (see paragraph 69 above), but the fact remains that the need to use the impugned measure has not been convincingly demonstrated.
78. In such circumstances, the Court considers that the undressing and exposure of the applicant during the lining up of the batallion had the effect of humiliating him (see paragraph 69 above). The fact that the applicant was aged nineteen aggravated the treatment imposed. The Court finds that his treatment reached the threshold of severity of Article 3 of the Convention and hence constituted a degrading treatment within the meaning of that Convention provision.
79. Having regard to the above, the Court considers that there has accordingly been a violation of Article 3 of the Convention under its substantive limb.
(β) The applicant’s other allegations
80. As regards the applicant’s remaining allegations of ill-treatment, the Court notes that the applicant’s complaint of 27 June 2007 to the Nizhniy Novgorod Prosecutor’s Office contained an account of the alleged ill-treatment, supported by the list of servicemen who could supposedly confirm his statements (see paragraph 23 above). On 1 July 2007 the applicant’s version of events was confirmed in the criminal complaint by junior sergeant V. (see paragraph 29 above).
81. However, the applicant did not provide any medical evidence in support of his allegation of ill-treatment. Nor has he submitted to the Court any other evidence confirming the presence of any traceable injury on his person (see, for similar reasoning, Maksimov v. Russia, no. 43233/02, §§ 80-82, 18 March 2010, and, by contrast, Chember, cited above, §§ 43-57). In this connection, the Court considers that the finding of the Military Medical Commission of the Nizhniy Novgorod Garrison dated 1 August 2008 diagnosing the applicant with “a personality disorder of the emotional unstable type, with variable amelioration, contracted during his military service” is insufficient to confirm the applicant’s allegations.
82. The Court has already found a violation of Article 3 of the Convention (see paragraphs 77-79 above). Taking into account also the domestic authorities’ failure to carry out an effective investigation into the events (see paragraphs 87-92 below), the Court finds that there is no need to examine the applicant’s remaining allegations.
(b) The ensuing investigation
(i) General principles
83. The Court reiterates that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. Such investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see, among other authorities, Labita v. Italy [GC], cited above, § 131).
84. The investigation into serious allegations of ill-treatment must be both prompt and thorough. The authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard (see, for example, Kopylov v. Russia, no. 3933/04, § 133, 29 July 2010). Thus, the mere fact that appropriate steps were not taken to reduce the risk of collusion between alleged perpetrators amounts to a significant shortcoming in the adequacy of the investigation (see, mutatis mutandis, Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 330, ECHR 2007-II, and Turluyeva v. Russia, no. 63638/09, § 107, 20 June 2013). Furthermore, the investigation must be independent, impartial and subject to public scrutiny (see Mesut Deniz v. Turkey, no. 36716/07, § 52, 5 November 2013). It should result in a reasoned decision to reassure a concerned public that the rule of law had been respected (see, mutatis mutandis, Kelly and Others v. the United Kingdom, no. 30054/96, § 118, 4 May 2001).
85. It is the State’s responsibility to implement a procedure which enables it to take all measures necessary for it to comply with the positive obligation to conduct an effective investigation imposed by Article 3 (see, mutatis mutandis, Sashov and Others v. Bulgaria, no. 14383/03, §§ 64, 68 and 69, 7 January 2010; see also Vanfuli v. Russia, no. 24885/05, § 79, 3 November 2011; Nechto v. Russia, no. 24893/05, § 87, 24 January 2012; and Nitsov v. Russia, no. 35389/04, § 60, 3 May 2012).
(ii) Application of these principles to the present case
(α) The existence of a credible claim
86. In the light of the evidential material available in the present case, including the clear description of the events, the statements of V. and also taking into account the results of the applicant’s psychological examination of 2008, the Court is satisfied that the applicant made a credible claim of ill-treatment. Accordingly, the authorities had an obligation to carry out an effective official investigation into his allegation.
(β) Effectiveness of the investigation
87. The Court observes that the authorities did respond to the applicant’s allegations of ill-treatment. They conducted an initial inquiry under Article 144 of the CCrP (проверка по заявлению о преступлении) to verify his allegations (see paragraph 56 above). However, the Court is not convinced that the measures taken by the authorities met the requirements of Article 3 in its procedural aspect for the following reasons.
88. The Court has previously ruled that in the context of the Russian legal system a “pre-investigation inquiry” alone is not capable of leading to the punishment of those responsible, since the opening of a criminal case and a criminal investigation are prerequisites for bringing charges against the alleged perpetrators which may then be examined by a court. The Court drew strong inferences from the mere fact of the investigative authority’s refusal to open a criminal investigation into credible allegations of serious ill-treatment in police custody, regarding it as indicative of the State’s failure to comply with its obligation under Article 3 to carry out an effective investigation (see Lyapin v. Russia, no. 46956/09, §§ 135-36, 24 July 2014).
89. The Court thus considers that the refusal to open a criminal case into the applicant’s credible allegations of ill-treatment at the hands of the officers of Military Unit no. 34605 amounted to a failure to carry out an effective investigation as required by Article 3 of the Convention. This conclusion makes it unnecessary for the Court to examine in detail the many rounds of the pre-investigation inquiry conducted in the applicant’s case, with a view to identifying specific deficiencies and omissions on the part of the investigative authorities.
90. By failing in its duty to carry out an effective investigation, the State fostered the military officers’ sense of impunity. The Court stresses that a proper response by the authorities in investigating serious allegations of ill-treatment at the hands of the police or other similar agents of the State in compliance with the Article 3 standards is essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion or tolerance of unlawful acts (see, among other authorities, Gasanov v. the Republic of Moldova, no. 39441/09, § 50, 18 December 2012; Amine Güzel v. Turkey, no. 41844/09, § 39, 17 September 2013; and Mesut Deniz v. Turkey, cited above, § 52).
91. The above considerations are sufficient for the Court to conclude that the domestic authorities did not ensure an effective investigation into the applicant’s allegations of ill-treatment by the military officers in June 2007.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
93. The applicant complained under Article 13 of the Convention that he had had no effective remedy in respect of his complaint under Article 3 of the Convention. Article 13 reads:
“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.”
94. The Government argued that the applicant had had an effective remedy in respect of his complaints under Article 3 as he had availed himself of the possibility of bringing an appeal against the investigating authorities’ decisions before a court.
95. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.
96. Having regard to the finding relating to Article 3 (see paragraphs 79 and 92 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 13 of the Convention (see, among other authorities, Velikanov v. Russia, no. 4124/08, §§ 67-70, 30 January 2014).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
97. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
98. The applicant claimed 35,000 euros (EUR) in respect of non-pecuniary damage.
99. The Government considered the applicant’s claim excessive.
100. The Court has found a violation of the substantive and procedural aspects of Article 3 of the Convention on account of the episode of the applicant’s undressing and the authorities’ failure to effectively investigate the alleged ill-treatment of the applicant. The Court thus accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. It awards to the applicant EUR 15,000, plus any tax that may be chargeable to him thereon.
B. Costs and expenses
101. The applicant also claimed EUR 825.72 for legal and other costs.
102. The Government contested that the applicant’s claims are unsubstantiated.
103. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Having regard to the material in its possession, the Court considers it reasonable to award the applicant the sum requested plus any tax that may be chargeable. The award is to be paid into the bank account indicated by the applicant’s representative.
C. Default interest
104. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 3 of the Convention on account of the applicant’s undressing on 5 and 6 June 2007;
3. Holds that there is no need to examine the other episodes of the alleged ill-treatment of the applicant in June 2007;
4. Holds that there has been a violation of Article 3 of the Convention on account of the authorities’ failure to investigate effectively the applicant’s allegations of ill-treatment;
5. Holds that it is not necessary to examine whether, in this case, there has been a violation of Article 13 of the Convention;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent state at the rate applicable at the date of settlement:
(i) EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 825.72 (eight hundred and twenty-five euros and seventy two cents) in respect of costs and expenses within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, plus any tax that may be chargeable to the applicants on the above amount, to be paid into the bank account indicated by the applicant’s representative;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
7. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 12 March 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle