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KAYANKIN v. RUSSIA - 24427/02 [2010] ECHR 163 (11 February 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/163.html
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[2010] ECHR 163
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FIRST
SECTION
CASE OF KAYANKIN v. RUSSIA
(Application
no. 24427/02)
JUDGMENT
STRASBOURG
11
February 2010
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 Kayankin v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Khanlar
Hajiyev,
Dean Spielmann,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 21 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 24427/02) 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 Aleksandr Sergeyevich
Kayankin (“the applicant”), on 14 May 2002.
The applicant, who had been granted legal aid, was
represented by lawyers of the Human Rights
Centre Memorial. The Russian Government (“the Government”)
were represented by Mr P. Laptev and Mrs V. Milinchuk,
former Representatives of the Russian Federation at the European
Court of Human Rights.
The
applicant alleged, in particular, that he had been subjected to
inhuman and degrading treatment as a result of being drafted into the
army in a very poor state of health, that during his military service
he had been beaten up by an officer and fellow soldiers, that there
had not been an effective investigation into the incidents and that
the tort proceedings brought by him had been excessively long.
On
1 March 2006 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1980 and lives in the village of Sosnovo in the
Leningrad Region.
As transpires from a copy of the applicant’s
medical record, submitted by him to the Court, on a number of
occasions in 1987 he applied to the Sosnovo village hospital
complaining of headaches. On 16 November 1987 he was diagnosed with
hypertension. The diagnosis was recorded in his medical history.
A. The applicant’s military service and the state
of his health
In
1996 the Priozersk District Military Board registered the applicant
for compulsory military service.
On 12 February 1997 the Priozersk District Military
Medical Commission, comprising a surgeon, a general practitioner, a
neuropathologist, a psychiatrist, an oculist, a dentist, a
dermatologist and an otolaryngologist, examined the applicant for the
purpose of making a preliminary assessment of the state of his health
to determine whether he was fit for military service. The commission
diagnosed the applicant with “hypotrophy of unknown genesis”,
and assigned him category “D” on the medical scale of
eligibility for service, finding him “temporarily unfit”.
The diagnosis was made on the basis of the disproportionate
correlation between the applicant’s height of 167 centimetres
and his weight of 50 kilograms. The commission concluded that an
additional medical examination of the applicant by an endocrinologist
was necessary in relation to the diagnosis of hypotrophy. The
applicant’s conscription was deferred for six months on medical
grounds.
According to the applicant, the commission did not
provide him with a medical certificate or any other medical documents
directing him to a particular public health institution for further
medical examinations, monitoring and, if necessary, treatment, as
required by the Instruction on Military Medical Examinations in the
Armed Forces of the Russian Federation, adopted on 22 September
1995 by Decree no. 315 of the Russian Defence Ministry and in force
at the material time. However, as transpires from the applicant’s
medical history submitted to the Court, on 18 February 1997 he
was examined by an endocrinologist, who noted the disproportionate
ratio between the applicant’s weight and height, but considered
that his state of health was satisfactory. At the same time the
endocrinologist diagnosed the applicant with a diffuse enlargement of
the thyroid gland of the first degree, connected to puberty.
In October 1998 the applicant was again examined by
the military medical commission and found to be “fit for
military service”. The report of the commission indicated that
he had not complained about the state of his health. The applicant’s
call-up was scheduled for April 1999.
No further medical examinations of the applicant were
performed until April 1999, when the military medical commission
re-examined him. The commission concluded that the applicant was fit
for military service without any restrictions. As transpires from the
applicant’s personal file of a conscript produced to the Court,
his height of 175 centimetres and his weight of 63 kilograms meant
that the diagnosis of “hypotrophy” was no longer an
issue. The applicant countersigned the medical report indicating that
he had no complaints pertaining to the state of his health.
On
3 June 1999 the applicant was drafted into the army. He was assigned
to military unit no. 22336 in Volgograd. The applicant alleged that
in the unit he had on many occasions been beaten up and harassed by
senior conscripts. They had allegedly forced him and other younger
conscripts to sleep outdoors at night and had taken away their food.
According to the applicant, on 5 September 1999 the head of the
military headquarters, Captain Ch., in the presence of the soldier
A., hit the applicant five times in the head with an artillery gun
shell. On 17 October 1999 a group of senior conscripts allegedly beat
the applicant up.
On
25 October 1999 the applicant’s mother arrived at the unit. The
applicant told her about the beatings.
Two
days later the applicant left the unit without authorisation and
travelled with his mother to St Petersburg.
In St Petersburg the applicant was examined at the
Bekhterev Scientific Research Psychoneurology Institute
(Научно-исследовательский
Психоневрологический
Институт
им. В.
М. Бехтерева).
A magnetic resonance imaging (MRI) scan, a transcranial scan with
Doppler apparatus and an ultrasound scan of the applicant’s
head were performed. He was also examined by an oculist, a
psychologist and neurologist. On 9 November 1999 the Institute issued
the applicant with an advisory opinion, the relevant part of which
read as follows:
“[The applicant complains] of headaches,
dizziness, fatigability, irritability, a hearing impairment of the
right ear, and somniloquence.
[He] has suffered from headaches since the age of nine;
[the headaches] have a piercing, squeezing character; [the headache]
starts in the morning with the impression that [someone] is applying
pressure to the eyes; [the headache] becomes stronger during mental
and physical work; it is accompanied by photophobia, degradation of
working capacity, and fast fatigability.
Medical history (according to the applicant’s
mother and his medical record):
...
[The applicant] was an active child; he frequently fell,
hitting his head. At the age of four months he fell from a shelf,
hitting his head; he lost consciousness. He hit his head hard a
number of times while skating. At the age of nine years he severely
hit his forehead; a suture was applied. When he was 12 years old, he
was accidentally hit on the head with a hammer.
...
Diagnosis: organic brain disease – the result of
craniocerebral traumas sustained [by the applicant], neuroinfections,
a perinatal disorder – cerebral arachnoiditis with apparent
hypertensive syndrome, cerebral angiodystonia, epileptiform paroxysms
..., bilateral pyramidal signs, psycho-organic and astheno-psychic
syndrome. Osteochondropathy of the knee joints.
Recommended: supervision by a neuropathologist and a
psychoneuropathologist ... Limitation of physical activity. Placement
in a military hospital.”
On 12 November 1999 the applicant applied to the St
Petersburg Military Prosecutor’s Office, complaining that his
conscription had been unlawful and that he had been ill-treated
during his military service. On 15 November 1999, on a
recommendation from the prosecutor’s office, he was admitted to
the neurology unit of a military hospital, where he stayed until 9
December 1999.
On 7 December 1999 the applicant was examined by the
Military Medical Commission of Medical Clinical Hospital no. 442.
According to a medical certificate issued by the Commission, the
applicant was diagnosed with “long-term effects of
neuroinfection in the form of external hydrocephalus with
disseminated neurological signs and pseudo-neurasthenic syndrome; 1st
degree S-shaped scoliosis of the thoracodorsal region with Schmorl’s
nodule in the 4th to 9th vertebral bodies, transitional lumbosacral
vertebra, incomplete closure of 2, 3 and 4 vertebral
arches of the spine; chronic tonsillitis”. The
certificate indicated that the illness had been acquired during the
applicant’s military service and that he was “partially
fit for military service”.
On
25 January 2000 the applicant was discharged from military service on
account of his illness.
On 15 December 2000 the St Petersburg Medical Expert
Commission issued the applicant with a medical certificate indicating
that he had a third-degree disability as a consequence of the
illness.
B. Tort proceedings
On 19 January 2000 the applicant brought an action in
the Priozersk Town Court against the Priozersk District Drafting
Military Commission and the Priozersk District and Leningrad Regional
Military Boards, seeking compensation for damage. He also asked the
Town Court to set aside the decision of 3 June 1999 of the Priozersk
District Military Board as unlawful, claiming that he should not have
been drafted into the army as he had been seriously ill.
The
case was assigned to Judge C. on 24 January 2000.
On 4 October 2000 Judge C. delivered a decision,
accepting the case for examination on the merits, and scheduled the
first hearing for 1 December 2000. On the same day she also sent
a letter to the defendants asking to submit the applicant’s
personal file of a conscript.
The hearing of 1 December 2000 was adjourned because
the applicant wanted to study the case file and to retain a lawyer.
As transpires from the Government’s submissions,
the following hearing, which took place on 26 September 2001, was
adjourned after the applicant’s representative had successfully
petitioned the Town Court for provision of additional evidence.
The
next hearing, scheduled for 8 October 2001, was adjourned on a
request from the Priozersk District Military Board because its
representative could not attend.
On 17 October 2001 the Town Court, at the applicant’s
request, sent letters to a number of military and medical authorities
seeking the production of additional evidence. The latest response
was received by the Town Court on 4 December 2001 from the Sosnovo
village hospital. The hospital informed the Town Court that it could
not submit an extract from a hospital register showing that the
applicant’s medical record had been sent to the military
medical commission for an examination when the question on his
eligibility to the military service was to be decided. The hospital
explained that the register in question was missing. At the same time
the hospital noted that as a general rule medical records of
potential conscripts were sent to the military medical commission.
The
following hearing, scheduled for 16 January 2002, was postponed
because the defendants failed to appear. The Town Court also afforded
the applicant’s representative additional time to prepare
written questions to put to a medical expert.
On
21 January 2002 the Town Court sent letters, repeating its requests
for provision of evidence, to a number of military authorities which
had failed to reply to the first letter of 17 October 2001.
On 18 February 2002 the Town Court, in response to its
order of 4 October 2000, received the applicant’s personal
file of a conscript.
On 20 May 2002 the case was transferred to Judge B.
who, in the process of the examination of the case file, sent letters
to a number of military and medical officials, asking for additional
evidence to be provided. According to the Government, the latest
reply was received by the Town Court on 12 July 2002.
In
October 2002 the Town Court asked the Priozersk Town Council to
submit documents regulating the activities of the Priozersk District
Military Board.
At
the first hearing fixed by Judge B. for 10 December 2002 the
applicant amended his claims. The Town Court issued the applicant and
his representative with a written warning that the amendment of the
claims would result in a stay of the proceedings. The hearing was
rescheduled for 14 January 2003. That hearing was also adjourned on
account of a defendant’s failure to attend. In the meantime,
the applicant filed an additional amendment to the statement of
claims.
The
following hearing, scheduled for 29 January 2003, was postponed until
13 March 2003 at the defendants’ request to allow them to
study additional documents submitted by the applicant.
The
defendants failed to attend the hearing on 13 March 2003 and the Town
Court sent a warning, informing them of the consequences of their
conduct and ordering them to appear at the following hearing, listed
for 14 May 2003.
On 14 May 2003 the applicant’s representative
asked the Town Court to adjourn the hearing as she could not attend.
The Town Court fixed the following hearing for 16 October 2003. The
latter hearing was also rescheduled for 4 December 2003 as the
defendants failed to appear.
At
the hearing on 4 December 2003 the applicant’s representative
successfully asked the Town Court to join the Leningrad Regional and
Priozersk District Divisions of the Federal Treasury as
co-defendants. The proceedings were stayed until 18 March 2004.
On 18 March 2004, at the hearing, the applicant
refused to undergo a medical examination. On the same day the
Priozersk Town Court dismissed the action, finding, in so far as
relevant, as follows:
“Having heard the submissions by the parties and
third persons and having studied the material in the case file, the
file on criminal case no. 14/04/0035-2000D and the [applicant’s]
personal file of a conscript with the enclosed medical documents, the
court finds [the applicant’s] claims ill-founded and dismisses
them.
By virtue of section 26-28 and 30 of the Federal
Military Duty and Military Service Act, the district military board,
at the expense of the federal budget, is entrusted with the
obligation to conscript men for military service, to organise their
medical examinations and to provide for exemptions from the duty to
serve in the army.
The military board was established by Decision no. 263,
issued by the head of the Priozersk District Council of the Leningrad
Region on 31 March 1999 for the purpose of organising and
implementing conscription for military service; Ms S. was appointed
to act as the chief doctor.
In 1999 Decree no. 315 on the procedure for performing
military medical examinations in the armed forces of the Russian
Federation, issued by the Ministry of Defence of the Russian
Federation on 22 September 1995, regulated the activities of the
military board and the procedure for medical examinations of men at
the time of their initial inclusion in the military service register
and [when they are] drafted into the army.
When included for the first time in the military service
register on 12 February 1997 (record no. 5), [the applicant] did not
make any complaints; his weight was 50 kilograms, his height 167
centimetres, his diagnosis was ‘hypotrophy of unknown genesis’;
according to Article 13-g of Section 1 of the List of Illnesses and
the Table of Additional Requirements [laid down] in the Amendment to
the Regulations on Military Medical Examinations, adopted on 20 April
1995 by Decree no. 390 of the Government of the Russian Federation,
[the applicant] was placed in category ‘D’ –
temporarily unfit for medical service for a period of six months. [It
was noted that he] needed a medical examination.
When drafted for military service on 16 April 1999
(record no. 8), [the applicant] did not make any complaints about the
state of his health. His diagnosis: ‘healthy’. On the
basis of Section 1 of the List of Illnesses and the Table of
Additional Requirements [laid down] in the Amendment to the
Regulations ..., [he was found to belong to category] ‘A’
– fit for military service. [It was decided] to draft him into
the army.
On 3 June 1999, when examined by doctors in the Regional
Assembly Station of the Military Board in the Leningrad Region, no
illnesses precluding his conscription for military service were
discovered. [The applicant] was only diagnosed with scoliosis of the
first degree. By virtue of Article 66-g of Section 1 of the List of
Illnesses and the Table of Additional Requirements..., [the
applicant] was found [to belong to category] ‘B-4’ –
fit for military service with minor restrictions. [It was decided] to
draft him into the army.
By virtue of section 28 § 7 of the Federal Military
Duty and Military Service Act, a plaintiff may appeal against a
decision of a military board [to draft him into the army].
On 7 December 1999 the Military Medical Commission of
Medical Clinical Hospital no. 442 decided that [the applicant] was
partially fit for military service... in accordance with Articles 22B
and 49D of Section 2 of the List of Illnesses and the Table of
Additional Requirements... [It was determined] that his illness had
been acquired during his military service.
[The applicant] and his representative argue that the
report of ... the Bekhterev Scientific Research Psychoneurology
Institute, which states that his illness – ‘organic brain
disease – the result of craniocerebral traumas sustained [by
the applicant] – neuroinfections, a perinatal disorder’
(which means ‘during or after childbirth’, as the
representatives explained and the doctor S. testified), should serve
as a basis for quashing the decision of 3 June 1999 of the Priozersk
District Military Board to conscript [the applicant].
By virtue of Article 56 of the Russian Code of Civil
Procedure, each party should prove the circumstances on which he or
she relies as the basis for his or her claims and complaints if a
federal law does not establish another rule.
Having regard to the fact that no item of evidence has a
pre-established evidentiary value for a court and that by virtue of
Article 67 of the Russian Code of Civil Procedure, the court assesses
the relevance, admissibility and veracity of evidence as a whole, the
plaintiff’s ... refusal to undergo a forensic medical
examination in the course of the present judicial proceedings did not
allow the court to establish that [the applicant] had those illnesses
at the time of the medical examination by the Priozersk District
Military Board.
The court cannot accept, as a justification for the
[applicant’s] claims, the reference to medical report no. 19
issued on 18 January 2001 by the forensic medical (psychological and
psychiatric) expert commission, [in particular] its answers to
questions nos. 7 and 8 that unhealthy organic changes in [the
applicant’s] central nervous system discovered during the
examination were congenital or that they had occurred in early
childhood because that expert examination [performed in the course of
the criminal case] did not settle the contradictions and did not
assess the conclusions made in the decision of the Military Medical
Commission of Medical Clinical Hospital no. 442, which had found that
[the applicant] had acquired those illnesses during military service,
although [the court notes] the reference to that decision in the
[criminal] expert examination.
It follows that, in a situation where [the applicant]
had refused to undergo an additional expert examination, the court
and the parties to the present case concerning [the applicant’s]
action did not have an opportunity to make use of their procedural
rights, to solve the abovementioned contradictions, to determine how
‘negative emotions experienced during military service and [the
applicant’s] response to the existing circumstances surrounding
him could have aggravated his chronic diseases’ and to assess
the consequences of the deterioration of his health.
Thus, the court was not provided with evidence reliably
showing that [the applicant] had had those illnesses when drafted
into the army on 16 April 1999.
Moreover, it was established at the court hearing that
the records of [the applicant’s] complaints of a headache on 9
November 1987 and of ‘hypertension’ had been included in
the [applicant’s] medical history, which had been drawn up on
4 November 1995 and had been handed over to [the applicant’s]
mother in October 1998, a fact she does not dispute, and that she had
not submitted [his medical history] to the medical specialists of the
Priozersk District and Leningrad Regional Military Boards.
The court was also not provided with evidence reliably
showing that [the applicant] had complained [about the state of his
health] when he had been examined by the Priozersk District Military
Medical Commission or by the Leningrad Regional Military Medical
Commission; [the court] also did not establish that ... [the
applicant had been] forced to produce a handwritten note stating that
[he had no] complaints about the state of his health.
The court cannot agree with the applicant’s
representative that Ms S. did not fulfil her administrative functions
as the chief doctor of the military medical commission as it was
established that the conscript had not had any complaints; his mother
had had [the applicant’s] medical history; she could have
attracted the doctors’ attention [to the alleged medical
problems] and could have received necessary consultations by medical
specialists.
Thus, the court did not establish any violations during
[the applicant’s] medical examinations, either when he had been
entered in the military service register or when he had been drafted
into the army in compliance with Decree no. 315 on the procedure for
performing military medical examinations in the armed forces of the
Russian Federation, issued by the Ministry of Defence of the Russian
Federation on 22 September 1995.
The court, therefore, finds manifestly ill-founded [the
applicant’s] claim that the decision of the Priozersk District
Military Board of 3 June 1999 to draft him into the army was unlawful
and that it should be quashed. [The court concludes] that [the
applicant’s claims] should be dismissed.
The court dismisses [the applicant’s] claims for
compensation for pecuniary and non-pecuniary damage as it has found
that the tort action itself ... is manifestly ill-founded.
The court cannot accept the argument by the Priozersk
District Military Board that [the applicant] had missed the
three-month time-limit for lodging [his claims] with the court, as by
virtue of Article 200 of the Russian Civil Code, the time-limit only
starts to run on the date when an individual has learnt about a
violation of his rights. The plaintiff and his representative only
learned of the violation of [the applicant’s] rights after [the
applicant] had been examined by the doctors of the Bekhterev
Scientific Research Psychoneurology Institute on 9 November 1999. The
court thus finds that the time-limit was not missed and the request
to [dismiss the applicant’s claim for failure to comply with
the time-limit] should be disallowed.”
On
2 June 2004 the Leningrad Regional Court upheld the judgment,
endorsing the Town Court’s reasoning.
C. Criminal investigation into the applicant’s
complaints about beatings during his military service
On
6 March 2000, in response to the applicant’s complaint of
ill-treatment during his military service, the Military Prosecutor of
the Volgograd Garrison instituted criminal proceedings against
Captain Ch.
An
investigator interviewed the applicant on a number of occasions about
the circumstances surrounding his alleged beatings by Captain
Ch. Similar interviews were performed with Captain Ch. and
a number of conscripts who had served with the applicant. On
20 December 2000 the applicant had a confrontation interview
with Captain Ch.
On
17 January 2001 the Military Prosecutor of the North-Caucasian
Military Circuit informed the applicant’s mother that her
complaints of ill-treatment had been examined and “necessary
measures to stop the procrastination had been taken”. The
applicant’s mother was also informed that the criminal case had
been transferred to another investigator.
In January 2001 a senior investigator of the Volgograd
Garrison Military Prosecutor’s Office authorised a complex
forensic medical psychological and psychiatric examination of the
applicant to be performed in the Forensic Medical Laboratory of the
North-Caucasian Military Circuit of the Russian Ministry of Defence.
On 18 January 2001 the experts issued the report, finding that there
was no medical data confirming that the applicant had sustained any
injuries or traumas in autumn 1999 as a result of the alleged use of
force, as described by him. They further stressed that the
applicant’s illnesses discovered during the previous medical
examinations, in particular the organic brain illness, were
congenital or could have developed in early childhood as a result of
burdened heredity, difficult childbirth, head injuries or
neuroinfections. The experts concluded that those illnesses could not
have resulted from blows to the head administered either by Captain
Ch. or fellow soldiers as the applicant alleged.
On
7 February and 23 June 2001 the criminal proceedings were
discontinued because there was no indication of a criminal offence.
Both decisions were quashed on 7 May and 17 September 2001,
respectively, by the supervising prosecutor and the investigation was
resumed.
On
19 September 2001 another investigator was assigned to the case.
A
month later the criminal proceedings were closed because there was no
evidence of criminal conduct. The text of that decision was similar
to the previous ones and read as follows:
“It was initially established on the basis of the
material in the case file that, as follows from [the applicant’s]
complaints, on 5 September 1999, at approximately 4 p.m., in the
headquarters of the military unit, Captain Ch., being dissatisfied
with [the applicant’s] service in the duty unit, had hit [the
applicant] at least four times in the head with a metal artillery gun
shell.
According [to the applicant], because of those beatings
he left the military unit on 25 October 1999 without permission and
travelled to the place of his residence in the Leningrad Region.
However, in the course of the investigation Captain Ch.
firmly and consistently denied having participated in the beatings of
[the applicant] and having caused [the applicant] any injuries.
In the course of the pre-trial investigation [the
investigating authorities] started doubting the veracity of [the
applicant’s] statements; a forensic medical psychological
psychiatric expert examination was ordered in the case. The experts
were provided with the complete set of medical documents, [the
applicant] agreed to the provision of [those materials].
According to the expert findings, the medical documents
submitted do not contain any evidence showing that [the applicant]
had sustained any injuries or [had acquired] any illnesses as a
result of allegedly having been hit in the head or neck with a heavy
object. The unhealthy organic changes in [the applicant’s]
central nervous system discovered during the examination were
congenital or had occurred in early childhood as a result of his
burdened hereditary history, difficult childbirth, possible head
traumas and the presence of neuroinfection in his childhood and
youth. Negative emotions which [the applicant] sustained during the
military service could have aggravated the existing chronic
illnesses. Having regard to the foregoing, the experts made the
unambiguous finding that [the applicant’s] illnesses were
congenital or had occurred in early childhood. They could not have
resulted from the alleged beating on the head by Captain Ch.
Moreover, as follows from statements by [the
applicant’s] fellow conscripts, soldiers A., Ba. and P., whom
[the applicant] identified as eyewitnesses to his alleged beatings by
Captain Ch., the latter did not use any physical force against [the
applicant]. [The applicant] did not tell [those soldiers] about [the
beatings].
As follows from the statements which [the applicant]
gave during the pre-trial investigation, Captain Ch. hit him at least
five times in the head; after the first blow the applicant could no
longer stand on his feet and, leaning against a wall, he started
sitting down. Captain Ch. administered the remaining blows when [the
applicant] was already near the wall. A forensic investigative
simulation was performed in order to reconstruct [the applicant’s]
statements and verify the possibility of administering blows with a
metal gun shell through a wooden partition. The environment in which,
according to [the applicant], Captain Ch. had beaten him up was
reconstructed before the forensic investigative simulation.
Assistants who anthropologically resemble [the applicant] and Captain
Ch. took part in the simulation. As a result of the simulation it was
established that a blow could only be administered through the wooden
partition when a person stood very closely to it. Owing to the large
distance, the assistant who anthropologically resembled Captain Ch.
could not even once hit the assistant who anthropologically resembled
[the applicant] when the latter was standing on his feet or was
sitting down, leaning on the wall. From the above-mentioned facts it
can be concluded that the statements made [by the applicant] during
the pre-trial investigation are false.”
On
10 January 2002 the Military Prosecutor of the North-Caucasian
Military Circuit quashed the decision of 19 October 2001 and
authorised an additional investigation, finding that the applicant’s
additional complaint that he had been beaten up by senior conscripts
had not been investigated.
On
17 June 2002 the criminal proceedings were closed because there was
no case to be answered. The decision comprised the text of the
decision of 19 October 2001 and additional paragraphs which read as
follows:
“[The applicant] explained that on 5 September
1999, at approximately 4 p.m., at the headquarters of the military
unit Captain Ch, being dissatisfied with [the applicant’s]
service in the duty unit, had punched him in the face. Subsequently,
[Captain Ch.] took [the applicant] to a barrack storeroom, where he
hit him in the head at least five times with a metal artillery gun
shell. Soldier A. was present in the storeroom during the beatings.
[The applicant] told solders Ba. and P., who were on duty in the duty
unit, about the incident.
Moreover, [the applicant] explained that in the middle
of October 1999 soldier B. had offered to exchange military jackets
[with the applicant] and when the latter had refused, soldier B. had
hit [the applicant] in the nose with his hand or head; [the
applicant’s] nose had started bleeding. Soldiers P., M., Pu.,
Be., D. and G. were present during the beatings.
However, during the questioning Captain Ch. firmly and
consistently denied having participated in the beatings of [the
applicant] or having caused him any injuries.
During a confrontation interview between [the applicant]
and Captain Ch., the latter confirmed his statements, whereas [the
applicant] was inconsistent in his testimony and gave different
answers to the same questions.
In his statements [the applicant] explained that soldier
A ... had witnessed the beatings of the applicant by Captain Ch. in
the storeroom. Mr A., questioned at the place of his residence in the
capacity of a witness, firmly denied that Captain Ch. had used
physical force against conscripts, including [the applicant], in
military unit no. 22336. Moreover, he noted that he did not
remember [the applicant]. At the same time he knew Captain Ch. ...
very well and had never seen Captain Ch. hit anyone. Moreover, Mr A.
stated that there had never been a gun shell in the storeroom.
Furthermore, [the applicant] stated that he had told
soldier Ba., who had been on duty with him in the duty unit, about
the beatings by Captain Ch. However, [Mr Ba.], who was questioned at
the place of his residence as a witness, stated that he did not
remember [the applicant]. He knew Captain Ch. well and could only
describe the latter in positive terms; he had never seen [Captain
Ch.] hit anyone. Moreover, he had never been told that Captain Ch.
had beaten anyone. As to the gun shell, he had never seen one in the
barrack storeroom.
[The applicant] also listed another reason for his
unauthorised leave from military unit no. 2236, noting that in the
middle of October 1999 soldier B. had offered to exchange military
jackets with him; however, [the applicant] had refused. In response
[to the refusal] soldier B. had hit [the applicant] in the nose with
his hand or head; [the applicant’s] nose had started bleeding.
However, Mr B., questioned as a witness, stated that he knew [the
applicant]. ...he had rarely met him, as [the applicant] had served
in another division of military unit no. 22336. [Mr B.] explained
that he had never applied unlawful means of pressure to conscripts;
moreover, he had never asked [the applicant] about anything and had
not beaten him up when [the latter] had allegedly refused [to comply
with the request]. His military jacket was in order and he did not
need to change it.
[According to the applicant], soldier D. was present
during the alleged beatings by soldier B. ... However, Mr D.,
questioned as a witness, stated that he had never used unlawful means
of pressure against [the applicant] and had not seen [the applicant]
being beaten.
During a confrontation interview between [the applicant]
and Mr D., the latter gave consistent and unambiguous answers, fully
confirming his statements.
Moreover, [the applicant] stated that when soldier B.
had beaten him up, soldier P. had been in the duty room with them.
Soldier P., having been questioned as a witness, stated that he had
never beaten [the applicant] up and had not seen anyone hit [the
applicant]. Moreover, Mr P. explained that his fellow conscript, Mr
Pu., had told him that in May 2000, when he had been on leave from
the service, [the applicant] and his mother had come to his house and
had asked to sign papers confirming that [the applicant] had
allegedly been beaten up in the military unit by conscripts of Kalmyk
ethnic origin.
During a confrontation interview between [the applicant]
and Mr P., the latter gave consistent answers which fully
corroborated his statements.
Mr M. and Ba., who, according to [the applicant], had
been present during the beatings, when questioned [by an
investigator] stated that they had never applied force to [the
applicant] and had never seen anyone beating him.”
The
Government provided the Court with copies of the records of the
applicant’s, Captain Ch.’s and witnesses’
questioning and copies of the records of the confrontation
interviews.
On
several occasions the applicant unsuccessfully complained to
higher-ranking prosecutors that the proceedings had been
discontinued.
On
27 August 2002 the applicant was informed that the case file had been
sent to the Priozersk Town Court for an examination in the course of
the civil proceedings instituted on the applicant’s tort
action.
On
11 February 2003 the applicant asked the Priozersk Town Court to
inform him about what had happened to the criminal case file. On an
unspecified date the Town Court President informed the applicant that
the Town Court needed the file in connection with the applicant’s
tort action pending before it.
On 20 August 2003 the military prosecutor of the
North-Caucasian Military Circuit informed the applicant that his
complaints about the decision of 17 June 2002 had been examined and
dismissed. The relevant part of the letter of 20 August 2003 read as
follows:
“The preliminary investigation established that
Captain Ch. and soldier B. had never caused injuries to [the
applicant].
As follows from the report of the composite complex
forensic medical psychological psychiatric examination, the complete
set of [the applicant’s] medical documents does not contain any
information that he sustained any injury or illness as a result of
blows to the head or neck with a heavy object. The discovered organic
symptoms of an illness of the [applicant’s] central nervous
system are congenital or were acquired in early childhood as a
consequence of heredity, difficult childbirth, possible head traumas
and neuroinfections in his childhood or youth.
Negative emotions during military service could have
aggravated [the applicant’s] chronic diseases.
Experts made the unconditional finding that [the
applicant’s] illnesses were congenital or had been acquired in
early childhood and could not have been caused by blows to the head
allegedly inflicted by Captain Ch.”
Expert opinion of 4 May 2006
On
28 April 2006 an assistant to the Chief Military Prosecutor sent a
letter to the Main State Centre of Forensic Medical and
Criminological Examinations in Moscow (hereinafter “the Expert
Centre”), asking it to examine the applicant’s medical
history, including the three expert reports: of 9 November 1999 by
the Bekhterev Scientific Research Psychoneurology Institute, of 7
December 1999 by the Military Medical Commission of Medical Clinical
Hospital no. 442, and of 18 January 2001 by the Forensic Medical
Laboratory of the North-Caucasian Military Circuit of the Russian
Ministry of Defence, and to reply to a number of questions.
On 4 May 2006 the Expert Centre issued a report which,
in so far as relevant, read as follows:
“The experts were asked to reply to the following
questions:
What
were [the applicant’s] illnesses discovered during his
military service (explain the diagnosis): how does impairment of the
functioning of organs manifest itself, what are the symptoms of the
illness, etc.?
What
are the causes and processes of the development of those illnesses
and do they result from a trauma (traumas) sustained by [the
applicant]? If yes, when were those traumas received?
How
long does it take those illnesses to manifest themselves and what is
the relationship between them and heredity?
Did
[the applicant] have those illnesses when drafted into the army? If
so, how were those illnesses discovered and could [the applicant]
have been drafted into the army [if he had those illnesses]?
...
Conclusions
1. According to the medical documents, during his
military service [the applicant] had symptoms of ‘organic brain
disease, the result of craniocerebral traumas, neuroinfections, a
perinatal disorder in the form of cerebral arachnoiditis with
apparent hypertensive syndrome, cerebral angiodystonia, epileptiform
paroxysms ..., bilateral pyramidal signs, psycho-organic and
astheno-psychic syndrome’.
The above-mentioned illness was not accompanied by
impairments of motor, sensory or coordination functions or any other
functions of the nervous system. The main symptoms of the illness
were headaches, fatigability, irritability, and decrease in attention
and memory concentration.
2. The [applicant’s] above-mentioned organic brain
illness occurred in his childhood or youth. The causative factors
leading to the development of that condition were neuroinfection,
acute infectious inflammatory diseases accompanied by high fever
response and intoxication, and numerous head traumas which, jointly,
served as a basis for the process of the development of that illness.
The alleged head injury sustained on 5 September 1999 during [the
applicant’s] military service (June to October 1999) does not
belong to the priority factors in the development of that
polysymptomatic, residual organic disorder of the brain.
3. The duration of the [applicant’s] brain illness
corresponds to repeated exposure to the pathological factors listed
in answer no. 2, and observed in the period preceding his
conscription for military service. As follows from the medical
documents, [the applicant] exhibits signs of a mentally burdened
hereditary history in the form of his father’s mental illness,
accompanied by the abuse of alcohol and his death as a result of
suicide. [The applicant] himself exhibits signs of depression in its
hereditary aspect (‘periods of low mood’).
4. The symptoms of the ‘organic brain disease,
the result of craniocerebral traumas, neuroinfections, a perinatal
disorder in the form of cerebral arachnoiditis with apparent
hypertensive syndrome, cerebral angiodystonia, epileptiform paroxysms
..., bilateral pyramidal signs, psycho-organic and astheno-psychic
syndrome’ were present at the time of [the applicant’s]
conscription for military service (June 1999). At the same time,
having regard to the conclusions of the medical experts of the
military board that [the applicant] had had no complaints about [the
state of his health], the neurological symptomatology could not be
identified in its clinical aspect. According to the explanation and
application of Article 22 of the List of Illnesses (‘Regulations
on Military Medical Examinations’, adopted on 20 April
1995 by Decree no. 390 of the Government of the Russian Federation),
the identification of such an illness and the category of its
intensity, ‘a conclusion on the category of individual fitness
for military service during initial registration for military
service, conscription for military service and recruitment for
contractual military service is made after the in-patient
examination’.”
II. RELEVANT DOMESTIC LAW
A. Regulations on military service
1. Constitution of the Russian Federation
On
12 December 1993 the Constitution of the Russian Federation was
adopted. Article 59 of the Russian Constitution imposes a “duty
and obligation” on each citizen of the Russian Federation to
protect his or her fatherland. Paragraph 2 of Article 59 provides
that Russian citizens are to perform military service in compliance
with a federal law.
2. The Military Service Act
Russian
law gives detailed guidelines for the various stages of the
conscription process. These guidelines, found in Federal Law no.
53-FZ on Military Duty and Military Service (hereafter “the
Military Service Act”), enacted on 28 March 1998, are
applicable without exception to all young men of conscription age. In
particular, section 9 of the Military Service Act sets out the
procedure for initial registration of citizens for military service.
In the year he turns seventeen, a male citizen is entered in the
military register. At this time, a preliminary (initial)
determination is made as to whether he is fit for military service or
has grounds for an exemption. A military commission must organise a
medical examination of each individual, must determine, with regard
to the state of his health, whether he is fit for military service
and must decide whether the individual should be included in the
military service register, placed on the reserve list, considered
partially fit for military service or excused from serving in the
army if considered unfit for military service (section 9 § 6).
Section
16 of the Military Service Act regulates medical examinations,
monitoring and treatment of individuals at the stage of their initial
registration for military service. In particular, it provides that a
medical examination should be performed by a group of medical
specialists, comprising a general practitioner, a surgeon, a
neurologist, a psychiatrist, an oculist, an otolaryngologist, a
dentist and other doctors, if necessary. When the commission is
unable to reach a firm conclusion as to the individual’s
fitness for military service, the individual is sent to a medical
institution for an outpatient or in-patient medical examination. In
certain cases, the individual should be admitted to such an
institution for treatment.
By
virtue of section 23, men who have been declared unfit or partially
unfit for military service on health grounds are excused from
service. A deferral of military service for up to one year is granted
to individuals found to be temporarily unfit for service on account
of the state of their health (section 24).
When
he turns eighteen, a Russian male receives a summons to appear before
his local drafting military commission for the conscription
procedure. According to the regulations on conscription, he must be
directly handed the summons and must sign it (section 31 § 2).
If a young man is handed a draft summons and signs but
subsequently does not appear for conscription proceedings, he is
considered to be a draft-dodger and is prosecuted under the Criminal
Code (section 28 § 2 and section 31 § 4 of the Act).
If officials are unable to physically hand a young man a
summons, the drafting military commission may request the local
police precinct in writing to help “ensure” his presence
during the conscription procedure (section 31 § 2).
Section
28 lays down the list of responsibilities imposed on the drafting
military commission at the stage of conscription for military
service. In particular, the commission must organise a medical
examination for each individual and must take one of the following
decisions: (a) draft the individual into the army; (b) send him for
alternative civilian service; (c) grant him a deferral of military
service; (d) excuse him from being drafted to the army; (e) place him
on the reserve list; or (f) relieve him of the obligation to serve in
the army. It also assigns the candidate to a specific branch of the
armed forces.
Section
30, in terms similar to those of section 16, establishes the
procedure for the medical examination and monitoring of individuals
who are to be drafted into the army. In addition, section 30
indicates that, taking into account the results of the medical
examination, the head of the military medical commission should issue
a decision identifying the individual’s fitness for military
service according to the following five categories:
A –
fit for military service;
B –
fit for military service with minor restrictions;
C –
partially fit for military service;
D –
temporarily unfit for military service;
E –
unfit for military service.
Section
30 also provides that the procedure for organising and performing
medical examinations of individuals liable to be drafted into the
army is set out in detail in the Regulations on Military Medical
Examinations adopted by the Government of the Russian Federation.
3. Regulations on Military Medical Examinations (in
force until 1 July 2003)
On
20 April 1995 the Government of the Russian Federation issued Decree
no. 390, adopting the Regulations on Military Medical Examinations
(hereinafter “the Regulations”). The relevant provisions
of the Regulations read as follows:
“20. On the basis of a military medical
commission’s decision, an individual may be sent to a State or
municipal medical institution for an outpatient or in-patient medical
examination to confirm the diagnosis or to undergo treatment... After
such a medical examination (treatment) a record of the examination of
the state of the individual’s health should be drawn up...
21. At the stage of the initial registration for
military service or when a decision on conscription is to be taken,
in cases where it is necessary to perform a lengthy (for more than
three months) [additional] medical examination (treatment) of the
individual, the commission should issue a record noting the temporary
unfitness of the individual for military service for a period from
six to twelve months. After the [additional] medical examination
(treatment) is completed, the individual should be subjected to a
renewed medical examination by the military medical commission and
may be drafted into the army.
If the [additional] medical examination (treatment) of
the individual can be completed before the military commission
concludes its work (within the current drafting campaign), the report
on the individual’s temporary unfitness for military service
should not be issued. In that case a specialist doctor draws up a
record, noting that an [additional] medical examination (treatment)
of the individual is necessary, and indicates the date on which the
individual should attend the renewed medical examination by the
commission.
After the period of the individual’s temporary
unfitness for military service expires, the commission issues the
final decision on the category defining his fitness for military
service.
22. If an individual who was considered to be
temporarily unfit for military service during his initial
registration for service or at the stage of conscription into the
army refuses to undergo or evades the [additional] medical
examination (treatment), he should be subjected to a renewed medical
examination by the commission no later than six months after the
decision on temporary unfitness was taken. If during the renewed
medical examination by the commission no signs of deterioration of
the individual’s health are discovered or there are no apparent
injuries (wounds, traumas, contusions) or illnesses which prevent
conscription for military service, the individual is considered
completely fit or fit with minor restrictions for military service.
23. Administrations of various divisions of the public
health services, heads of State and municipal medical institutions
and military commissions should take measures to ensure timely
[additional] medical examinations (treatment) of individuals.”
The
Regulations also contained the List of Illnesses, on the basis of
which a military medical commission could identify to which of the
five categories (A to E) of fitness for military service the
individual belonged. In particular, Section 22 of the List dealt with
illnesses of the nervous system. Clinically apparent hydrocephalus
and fluid hypertension were listed among illnesses of the nervous
system which placed an individual suffering from them in the category
“E – unfit for military service”. Section 22
imposed an obligation to make the final determination of the
diagnosis on the basis of medical documents, results of clinical and
specific medical examinations and other evidence confirming the
diagnosis and showing the negative impact of the illness on the
individual’s ability to work or perform military service.
4. Instruction on Military Medical Examinations
On
22 September 1995 the Ministry of Defence of the Russian Federation
issued Decree no. 315, adopting the Instruction on Military Medical
Examinations in the Armed Forces of the Russian Federation
(hereinafter “the Instruction”), which, while
incorporating the provisions of the Regulations, set out even more
detailed rules for military commissions in the field of medical
examinations of conscripts. The Instruction (in force at the material
time), in so far as relevant, read as follows:
“114. Individuals who were considered in need of
an additional medical examination (treatment) at the stage of their
initial registration for military service should be included by the
military commission in one of the two registers:
In register no. 1 – temporarily unfit for military
service;
In register no. 2 – fit for military service with
minor restrictions.
No later than five days after the military commission
has finished its work, the above-mentioned registers should be sent
to the public health service authorities and medical institutions
which perform additional medical examinations (treatment) of
individuals liable for military service.
The individual is served with a card directing him to an
additional medical examination (treatment) at the same time when he
is notified about the decision of the commission [pertaining to his
fitness for military service]. The card should contain the name of
the medical institution to which the individual is sent, the
diagnosis, the purpose of the additional medical examination and the
date when the individual should present himself for the renewed
medical examination by the military commission. The individual should
be given an explanation as to why it is necessary to perform an
additional medical examination.
...
A military commission should ensure that [additional]
and repeated medical examinations are performed in good time.”
B. Investigations
into criminal offences
The Code of Criminal Procedure of the Russian
Federation (in force since 1 July 2002 – “the CCrP”)
provides that a criminal investigation can be initiated by an
investigator or a prosecutor on a complaint by an individual or on
the investigating authorities’ own initiative, where there are
reasons to believe that a crime has been committed (Articles 146 and
147). A prosecutor is responsible for overall supervision of the
investigation (Article 37). He can order specific investigative
actions, transfer the case from one investigator to another or order
an additional investigation. If there are no grounds to initiate a
criminal investigation, the prosecutor or investigator issues a
reasoned decision to that effect which has to be notified to the
interested party. The decision is amenable to appeal to a
higher-ranking prosecutor or to a court of general jurisdiction
within a procedure established by Article 125 of the CCrP (Article
148). Article 125 of the CCrP provides for judicial review of
decisions by investigators and prosecutors that might infringe the
constitutional rights of participants in proceedings or prevent
access to a court.
III. RELEVANT INTERNATIONAL NON-GOVERNMENTAL ORGANISATION
REPORTS
Human Rights Watch
1. Report: “Russia: Conscription through
Detention in Russia’s Armed Forces”
The relevant extracts from the Human Rights Watch
report of November 2002 (vol. 14, no. 8 (D)) entitled “Russia:
Conscription through Detention in Russia’s Armed Forces”
read as follows:
“Draft
Quota Problems
Due in part to conscription’s unpopularity and in
part to the deteriorating health of Russia’s youth, recruitment
authorities in many cities throughout Russia cannot meet draft
quotas, and many of those drafted have been described as in poor
health.
...
The deteriorating health of Russia’s youths has
compounded the conscription crisis. Poor health has disqualified
about 50 percent of Russia’s young men for military service
each year in recent years. A Ministry of Defence official told a
press conference in April 2002 that in 2001, doctors on draft boards
found no less than 54 percent of the young men tested unfit for
military service. Another official said that for the 400,000 young
men drafted some 600,000 young men are declared unfit each year.
Because Russia’s youth is wracked with poor
health, and because many of Russia’s most healthy and educated
young men successfully manage to avoid military service, recruitment
officials are often left to select conscripts from a group of young
men with low education levels and sometimes serious health problems.
An unidentified Russian lawmaker told The Moscow Times that,
in a speech to the State Duma, Defence Minister Sergei Ivanov said
the young men drafted in the fall of 2001 were a ‘pathetic lot,
afflicted with drug addiction, psychological problems and
malnutrition’. Ministry of Defence statistics indicate that
every second conscript had an alcohol problem prior to entering
service, and that every fourth had been a drug user.
...
Accelerated
Conscription Proceedings
Draft boards failed to process the young men interviewed
for this report diligently and fairly. In violation of Russian
conscription regulations, medical examinations were superficial, and
draft boards frequently refused to consider possible grounds for
exemption or deferral. In some cases, local draft boards processed
cases of young men whose residence permits were for elsewhere.
...
Medical
Examinations
All young men interviewed for this report said the
medical examinations at the local and municipal level were conducted
in a cursory manner. The doctors refused to listen to their
assertions of serious medical conditions, and in some cases the young
men did not even see all the required doctors.”
2. Report: “Serve without Health? Inadequate
Nutrition and Health Care”
The
relevant extracts from the Human Rights Watch report of November 2003
(vol. 15, no. 9 (D)) entitled “To Serve without Health?
Inadequate Nutrition and Health Care in the Russian Armed Forces”
read as follows:
“Since the collapse of the Soviet Union, a
profound public health crisis has plagued Russia. General health in
all parts of the population has deteriorated and life expectancy in
Russia lags far behind that in Western Europe.
A recent countrywide paediatric health study found that
67 percent of 31.6 million Russians eighteen years old and under
suffer from health problems, with bronchial and respiratory illnesses
being particularly common...
Violations of the rights to adequate nutrition and
medical care in the Russian armed forces must be seen in this
context. The privations many conscripts suffer may exacerbate the
fragile health they were in when they entered the military...
Military medical commissions that determine whether
candidate conscripts are fit for military service typically declare
more than 30 percent of those examined unfit. Yet, in a crunch to
fulfil draft quotas, each year the commissions also declare many
young men fit for service despite health problems that, under Russian
law, should disqualify them. Human Rights Watch research in the
archives of soldiers’ rights organizations in Moscow, St.
Petersburg, Volgograd and other Russian cities found numerous cases
of young men who were discharged from the armed forces for health
conditions that predated their draft order. In interviews, dozens of
conscripts told Human Rights Watch that the medical examinations they
underwent had been superficial and that physicians had failed to pay
due attention to their health problems.
The violent hazing of first-year conscripts that is
endemic in many units of Russia’s armed forces further ruins
the health of conscript soldiers. Numerous conscripts described to
Human Rights Watch how senior conscript soldiers, known as dedy,
systematically bullied them in their first year of service, making
them perform degrading chores and physical exercises, and demanding
money, alcohol, food, and cigarettes from them. Refusal to comply led
to beatings, which most said were routine throughout their first year
of service. Many conscript soldiers also said that, at times, they
faced far more serious ill-treatment or even torture, both in
retribution and gratuitously, including beatings with heavy objects,
beatings while they were suspended in painful positions, scorching of
skin with lit cigarettes, and sexual abuse.”
3. Report: “The Wrong of Passage: Inhuman and
Degrading Treatment of New Recruits in the Russian Armed Forces”
In October 2004 Human Rights Watch published a report
entitled “The Wrong of Passage: Inhuman and Degrading
Treatment of New Recruits in the Russian Armed Forces”
(vol 16 no. 8 (D)), documenting abuses under a system called
dedovshchina, or “rule of the grandfathers”, which
hundreds of thousands of new recruits in the Russian armed forces
faced at the hands of more senior conscripts. The report resulted
from the three years of research in several regions across Russia,
including Volgograd. The relevant parts of the report read as
follows:
“Under a system called dedovshchina,
or ‘rule of the grandfathers’, second-year conscripts
force new recruits to live in a year-long state of pointless
servitude, punish them violently for any infractions of official or
informal rules, and abuse them gratuitously. Dozens of conscripts are
killed every year as a result of these abuses, and thousands sustain
serious – and often permanent – damage to their physical
and mental health. Hundreds commit or attempt suicide and thousands
run away from their units. This abuse takes place in a broader
context of denial of conscripts’ rights to adequate food and
access to medical care, which causes many to go hungry or develop
serious health problems, and abusive treatment by officers...
Dedovshchina exists in military units throughout
the Russian Federation. It establishes an informal hierarchy of
conscripts, based on the length of their service, and a corresponding
set of rights and duties for each group of the hierarchy. As in
militaries around the world, newcomers have essentially no rights
under the system—they must earn them over time. At the
beginning of their service, conscripts are ‘not eligible’
to eat, wash, relax, sleep, be sick, or even keep track of time.
Thus, any restrictions placed on these functions are considered
permissible. The life of a new recruit consists of countless
obligations to do the bidding of those conscripts who have served
long enough – a year or more – to have earned rights in
the informal hierarchy. Second-year conscripts, called the dedy,
have practically unlimited power with respect to their junior
colleagues. They can order them to do whatever they like, no matter
how demeaning or absurd the task, while remaining beyond the
strictures of the Military Code of Conduct or any other set of formal
rules. If a first-year conscript refuses to oblige or fails in the
assigned task, the senior conscript is free to administer whatever
punishment he deems appropriate, no matter how violent.
Dedovshchina is distinguished by predation,
violence, and impunity. During their first year of service,
conscripts live under the constant threat of violence for failing to
comply with limitless orders and demands of dedy. Many
conscripts spent entire days fulfilling these orders, which range
from the trivial, like shining the seniors’ boots or making
their beds, to the predatory, such as handing over food items to them
at meal time, or procuring (legally or illegally) money, alcohol or
cigarettes for them. First-year conscripts face violent punishment
for any failure – and frequently not only for their own
individual failure, as punishment is often collective – to
conform to the expectations of dedy. As a rule, punishment
happens at night after officers have gone home. Dedy wake the
first-year conscripts up in the middle of the night and make them
perform push-ups or knee bends, often accompanied by beatings, until
they drop. First-year conscripts also routinely face gratuitous
abuse, often involving severe beatings or sexual abuse, from drunken
dedy at night. Dedy sometimes beat new recruits with
stools or iron rods.
Dedovshchina has all the trappings of a classic
initiation system; indeed, it likely emerged as one several decades
ago. Such systems, which exist in many social institutions around the
world, including schools, athletic clubs, and especially the armed
forces of many countries, can play a legitimate role in military
structures by enhancing group cohesion and esprit de corps.
Initiation systems license the group to erase a certain degree of
individuality in its members, and the possibility of abuse is
inherent in that license.
While dedovshchina may once have served the
purpose of initiation, it has in the past twenty years degenerated
into a system in which second-year conscripts, once victims of abuse
and deprivation themselves, enjoy untrammelled power to abuse their
juniors without rule, restriction, or fear of punishment. The result
is not enhanced esprit de corps but lawlessness and gross abuse of
human rights. The collapse of dedovshchina as an initiation
system has occurred at both the command level and at the conscript
level.
At the command level, abusive practices associated with
dedovshchina have persisted due to an almost universal failure
on the part of the officers’ corps to take appropriate
measures. Our research found that the vast majority of officers
either chose not to notice evidence of dedovshchina or, worse,
tolerate or encourage it because they see dedovshchina as an
effective means of maintaining discipline in their ranks. Indeed, we
found that officers routinely fail to send a clear message to their
troops that abuses will not be tolerated, reduce existing prevention
mechanisms to empty formalities or ignore them altogether, and fail
to respond to clear evidence of abuse.
The perversity of this attitude toward ‘maintaining
discipline’ in the short run is that it so clearly undermines
the effectiveness of Russia’s armed forces over time. Horror
stories about dedovshchina motivate tens of thousands of
Russian parents every year to try to keep their sons out of the armed
forces. As the most affluent and educated families do so most
successfully, the armed forces increasingly draw recruits from poor
segments of the population, and many of the recruits suffer from
malnutrition, ill-health, alcohol or drug addiction, or other social
ills even before they start to serve. Moreover, as mentioned above,
thousands of the young men who are drafted each year run away from
their units, and hundreds commit suicide.
At the conscript level, the degeneration of the system
is more contemptible than perverse: instead of initiating new
recruits into their new role of soldiers, dedy use
dedovshchina primarily as a means of avenging the abuses they
themselves faced during their first year of service and of exploiting
new recruits to the fullest extent possible, both materially and
otherwise...
Although international law requires the Russian
government to take immediate measures to end these abuses, it has
thus far failed to take the appropriate steps. Instead of taking a
clear and public stance against the abuses, government officials have
largely ignored the issue in their numerous speeches about military
reform. The government has yet to adopt a clear and comprehensive
strategy to deal with the abuses. Instead of vigorously examining the
reasons why first-year conscripts flee their units, military
officials routinely threaten runaways with prosecution for
unauthorized departure from their bases. Military commanders and the
military procuracy routinely shield their perpetrators from justice,
rather than investigate reported incidents of abuse.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON
ACCOUNT OF THE APPLICANT’S CONSCRIPTION FOR MILITARY SERVICE
The
applicant complained that his conscription to the armed forces,
despite his being seriously ill, constituted inhuman and degrading
treatment in violation of Article 3 of the Convention, which reads as
follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Submissions by the parties
The
Government submitted two lines of argument. Firstly, they argued that
the applicant had not appealed against the decision of the Priozersk
District Military Board to draft him into the army. In the
alternative, the Government, relying on the expert findings made on 4
May 2006, submitted that the applicant’s organic brain illness
diagnosed after his unauthorised leave from military service had been
“present at the time of the applicant’s conscription for
military service in June 1999”, being of a congenital nature or
having been acquired in childhood. However, the doctors of the
military medical commission who had examined the applicant and found
him fit for military service could not possibly have diagnosed the
illness given the absence of evident clinical symptoms at the time of
the conscription, the lack of health complaints on behalf of the
applicant and the latter’s failure to undergo any specific
medical examinations and provide the commission with medical
documents showing the presence of the illness. The Government
stressed that specific medical in-patient examinations were required
to diagnose the illness. Furthermore, neither the investigating
authorities nor the courts had established that the military medical
commission had deliberately disregarded the state of the applicant’s
health in authorising his conscription for military service.
The
Government also submitted that there was no evidence that the State
authorities had openly disregarded the basic principles of humanity
in violation of Article 3 of the Convention. In particular, the
Government drew the Court’s attention to the fact that from
December 2000 to December 2001 the applicant had received a monthly
disability pension of approximately 25 euros. However, owing to
the applicant’s failure to undergo a medical sanitary
examination the payments had been cancelled.
The
applicant averred that the domestic authorities had completely
disregarded his medical history. They paid no attention to the fact
that in 1987 he had been diagnosed with hypertension. Relying on the
Sosnovo hospital’s letter of 4 December 2001, he insisted that
the military medical commission had been served with a copy of his
medical record and that it should therefore have been aware of his
having been diagnosed with hypertension. Furthermore, despite the
fact that in February 1997 the military medical commission had
established that the applicant suffered from hypotrophy and that an
additional medical examination was necessary, no steps had been taken
to confirm the diagnosis or determine the nature of the health
problem. He stressed that he should have been admitted to a public
health institution for an in-patient examination or treatment, in
compliance with the requirements of the domestic legislation.
However, not having been served with any medical documents directing
him to such an institution, he did not have access to “medical
proceedings capable of effectively monitoring the state of his
health”.
The
applicant further submitted that both the report of 9 November 1999
by the Bekhterev Scientific Research Psychoneurology Institute and
the expert report issued on 4 May 2006 had confirmed the presence of
a serious brain illness which could have been detected at the
conscription stage by an in-patient examination. The illness was a
ground for exemption from military service. The applicant stressed
that the Government had not argued otherwise. In the applicant’s
opinion, the military medical commission, before drafting him, should
have ordered an in-patient medical examination to make the final
assessment of the state of his health. He pointed out that the
medical and military officials who in 1999 had made the final
determination of his fitness for military service had been aware of
his inability to serve effectively in the armed forces. The
consequences of his exposure to military service had been foreseeable
at the very least for the medical personnel involved in the
consideration of his eligibility for service. The applicant concluded
that military service was ordinarily accompanied by hardships of a
physical and psychological character which soldiers faced in their
everyday life. While military service itself in general did not
constitute inhuman and degrading treatment, his conscription for
military service in a very poor state of health went beyond the
suffering ordinarily connected with military service and reached the
threshold of treatment prohibited by Article 3.
B. The Court’s assessment
The
Court refers to the Government’s argument pertaining to the
applicant’s alleged failure to appeal against the decision of 3
June 1999 to draft him into the army and their further submissions
concerning the payment of the disability pension, which appear to
raise the issue of the applicant’s victim status. While finding
the Government’s arguments surprising, particularly in view of
the Priozersk Town Court’s judgment upholding the decision of
3 June 1999 (see paragraph 37 above), and the Government’s
admission that the pension payments were cancelled, the Court does
not consider it necessary to examine those arguments in detail, as it
in any event finds the present complaint manifestly ill-founded for
the reasons set out below.
1. Establishment of the facts
The
Court firstly considers it necessary to reiterate the facts relating
to the applicant’s conscription for military service. It
observes that the facts are not, in general, in dispute between the
parties. It therefore finds it established that on 12 February 1997
the applicant was examined for the first time by the Priozersk
District Military Medical Commission with a view to making a
preliminary determination of his ability to serve in the army. As a
result of the examination he was diagnosed with “hypotrophy of
unknown genesis” on account of his disproportionately low
weight in relation to his height and was found to be “temporarily
unfit” for military service. An examination by an
endocrinologist was to be performed (see paragraph 8 above). Despite
the applicant’s argument to the contrary, it transpires from
his medical record submitted to the Court that such an examination
was carried out within a week, with the applicant being diagnosed
with a diffuse enlargement of the thyroid gland conditioned by his
age. At the same time the applicant’s state of health was found
to be satisfactory (see paragraph 9 above).
In
October 1998, after the applicant had reached the conscription age of
eighteen, the military medical commission re-examined him and, having
established no signs of hypotrophy, found him fit to serve in the
army (see paragraph 10 above). Another medical examination of the
applicant was carried out in April 1999 when the final decision on
his conscription was taken. The applicant, having made no complaints,
was found to be in good health and ready to be conscripted into the
armed forces (see paragraph 11 above).
The
applicant’s military service began on 3 June 1999, when he was
assigned to unit no. 22336 in Volgograd. Almost five months later he
deserted the army and travelled to St Petersburg, where he applied to
the Bekhterev Scientific Research Psychoneurology Institute, alleging
serious health problems caused by the poor conditions of his military
service and numerous incidents of ill-treatment by senior conscripts
and officers (see paragraph 15 above). Following a medical
examination in the Institute, during which the applicant was
subjected to a number of complex medical tests, he was diagnosed with
a serious brain illness occasioned by a perinatal disorder,
neuroinfections and childhood craniocerebral traumas. According to
the expert report, the illness manifested itself through severe
headaches, from which the applicant had been suffering since 1987
(see paragraphs 6 and 15 above). In December 1999 the applicant, on
the authorisation of the St Petersburg Military Prosecutor’s
Office, was examined by the Military Medical Commission of the
Medical Clinical Hospital, which confirmed the diagnosis and
concluded that the illness had been acquired during his military
service and that he was no longer fit to serve (see paragraph 17
above). He was discharged from the army on account of his poor
health. In December 2000 the applicant was registered as having a
third-degree disability.
Subsequently,
two additional medical examinations were performed with a view to
identifying the origin of the applicant’s illness. In
particular, in January 2001, in the course of the criminal
proceedings instituted upon his ill-treatment complaints, a forensic
medical laboratory of the Russian Ministry of Defence carried out a
complex psychological and psychiatric examination of the applicant.
The experts concluded that his brain illness, discovered during the
previous examinations, was congenital or could have originated from a
difficult childbirth or childhood head traumas and neuroinfections
(see paragraph 42 above). The same finding was made by medical
experts during the most recent examination on 4 May 2006 (see
paragraph 53 above). The experts established that the illness had
developed prior to the applicant’s conscription for military
service. In addition, they reached the unambiguous conclusion that
the illness did not have clear clinical symptoms as it was not
accompanied by any physical impairment. It manifested itself through
headaches and a general decrease in physical and mental strength and
could only have been detected through specific in-patient medical
examinations.
2. General principles and their application to the
present case
The
Court notes the applicant’s complaint that the failure of the
military medical authorities to diagnose him with the brain illness
before he was drafted into the army exposed him to the hardships of
military service. In the applicant’s opinion, the usual
difficulties of military service, which do not impose a particularly
heavy burden on healthy conscripts, reached the threshold of inhuman
and degrading treatment in his case as he was seriously ill and was
not fit to meet the challenges of the army. Accordingly, the Court’s
task is to examine whether the facts as established above disclose a
violation of the guarantee against torture, inhuman and degrading
treatment or punishment under Article 3 of the Convention.
The Court reiterates that Article 3 of the Convention
enshrines one of the most fundamental values of 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. The assessment of this minimum depends on all the
circumstances of the case, such as the duration of the treatment, its
physical or mental effects and, in some cases, the sex, age and state
of health of the victim (see Ireland v. the United Kingdom,
18 January 1978, § 162, Series A no. 25).
According to the Court’s settled approach,
treatment is considered “inhuman” if it is premeditated,
applied for hours at a stretch and causes either actual bodily injury
or intense physical or mental suffering (see, as a classic authority,
Kudła v. Poland [GC], no. 30210/96, § 92, ECHR
2000-XI, and Yankov v. Bulgaria, no. 39084/97, § 104,
ECHR 2003 XII (extracts)). Treatment has been considered
“degrading” when it was such as to arouse in its victims
feelings of fear, anguish and inferiority capable of humiliating and
debasing them and possibly breaking their physical or moral
resistance (see Hurtado v. Switzerland, Commission’s
report of 8 July 1993, § 67, Series A no. 280),
or when it was such as to drive the victim to act against his will or
conscience (see, for example, the Greek case, cited above, and Keenan
v. the United Kingdom, no. 27229/95, § 110,
ECHR 2001-III). The question whether the purpose of the
treatment was to make the victim suffer is a further factor to be
taken into account, but the absence of any such purpose cannot
conclusively rule out a violation of Article 3 (see Peers
v. Greece, no. 28524/95, § 74, ECHR 2001-III).
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, cited above, §§
92-94). Mandatory military service often involves such an element
(see, mutatis mutandis, Engel and Others v. the
Netherlands, 8 June 1976, § 57, Series A no. 22).
The
Court further observes that it has already on a number of occasions
addressed the unique nature of military service. In particular, it
has found that 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 by, among other things,
providing him with the medical assistance he requires (see, mutatis
mutandis, Kılınç and Others v. Turkey,
no. 40145/98, § 41, 7 June 2005, and Álvarez
Ramón v. Spain (dec.), no. 51192/99, 3 July 2001).
The State has a primary duty to put in place rules geared to the
level of risk to life or limb that may result not only from the
nature of military activities and operations, but also from the human
element that comes into play when a State decides to call up ordinary
citizens to perform military service. Such rules must require the
adoption of practical measures aimed at the effective protection of
conscripts against the dangers inherent in military life and
appropriate procedures for identifying shortcomings and errors liable
to be committed in that regard by those in charge at different levels
(see Kılınç, cited above, § 41 in
fine).
The
present complaint, however, relates not so much to the State’s
obligation to ensure particular conditions in which a person is to
perform military service as to the specific duties of the State at
the very moment of conscription for such service, which inevitably
exposes individuals to legitimate suffering and humiliation. In this
respect, the present case may be compared to that of Taştan
v. Turkey (no. 63748/00, 4 March 2008), in which the Court found
that the conscription of the applicant at the age of seventy-one for
military service, which was reserved for much younger conscripts, and
his performance of such service constituted a “particularly
painful ordeal” for him and “an attack on his dignity”.
The Court concluded that they had caused anguish to the applicant of
an intensity exceeding the unavoidable level of suffering inherent in
military service, and amounted to degrading treatment in violation of
Article 3 of the Convention (ibid., § 31).
Accordingly,
the first question arising within the scope of the
present complaint is whether the conscription for military
service of the applicant, a seriously ill person, exposed him to
suffering which attained the Article 3 threshold. In this connection,
the Court observes that the Government did not dispute that the
applicant’s military service in the health condition with which
he was diagnosed in November 1999 could have exposed him to pain and
suffering which reached a level of severity sufficient to fall within
the scope of Article 3 of the Convention. The applicant’s
discharge from the army on health grounds appears to support that
conclusion. Although the applicant did not claim that during his
military service he had had any medical emergencies or had otherwise
been exposed to severe or prolonged pain connected to his illness or
experienced considerable anxiety flowing from his awareness of his
health condition and the health risk to which he was exposed at all
times on account of the nature of military service (see, mutatis
mutandis, Sarban v. Moldova, no. 3456/05, §§ 86-87,
4 October 2005), the Court is prepared to proceed on the assumption
that the suffering he may have endured reached the level of severity
prohibited by Article 3.
It
remains to be determined whether the State bears the responsibility,
under Article 3, for the treatment sustained by the applicant.
The
Court reiterates that the obligation on the High Contracting Parties
under Article 1 of the Convention to secure to everyone within their
jurisdiction the rights and freedoms defined in the Convention, taken
together with Article 3, requires States to take measures designed to
ensure that individuals within their jurisdiction are not subjected
to torture or inhuman or degrading treatment or punishment. These
measures should provide effective protection, in particular, of
vulnerable persons, such as military conscripts, and include
reasonable steps to prevent ill-treatment of which the authorities
had or ought to have had knowledge (see Abdullah Yılmaz v.
Turkey, no. 21899/02, §§ 67-72, 17 June 2008, and,
mutatis mutandis, Osman v. the United Kingdom, 28
October 1998, § 116, Reports of Judgments and Decisions
1998-VIII).
The
Court accepts that it is generally for a State to determine the
standards of health and fitness for potential conscripts, having
regard to the fact that the role of the armed forces differs among
States. However, conscripts should be physically and mentally
equipped for challenges related to the particular characteristics of
military life and for the special duties and responsibilities
incumbent on members of the army. While completing military service
may not be in any way overwhelming for a healthy young person, it
could constitute an onerous burden on an individual lacking the
requisite stamina and physical strength owing to the poor state of
his health. Accordingly, given the practical demands of military
service, States must introduce an effective system of medical
supervision for potential conscripts to ensure that their health and
well-being would not be put in danger and their human dignity would
not be undermined during military service (see, mutatis mutandis,
Taştan, cited above, § 30). State authorities,
in particular drafting military commissions and military medical
commissions, must carry out their responsibilities in such a manner
that persons who are not eligible for conscript military service on
health grounds are not registered and consequently admitted to serve
in the army.
Turning
to the circumstances of the present case, the Court is unable to
conclude that the Russian authorities, in conducting the medical
examinations of the applicant, finding him fit for military service
and eventually drafting him into the army, performed their duties in
a negligent manner. The Court does not lose sight of the fact that
prior to his conscription at least three medical examinations of the
applicant were performed by a group of specialists in various fields
of medicine, whose qualifications and experience he did not contest.
In addition, the examination by an endocrinologist was carried out
when the medical commission was unable to establish the origin of the
applicant’s hypotrophy. Following the preliminary assessment of
his ability to serve in the armed forces, the applicant was granted a
deferral to improve his health. More than eighteen months later, when
the initial diagnosis of hypotrophy was no longer an issue, the
Priozersk District Military Medical Commission found him fit for
military service. Furthermore, it was not until June 1999 that the
applicant was eventually drafted into the army.
The
Court attributes particular weight to the fact, which was not in
dispute between the parties, that the applicant did not make any
complaints about the state of his health during the three medical
examinations. Furthermore, there is no evidence that he applied to
any independent medical institution with any health problem between
1996, when he was registered for compulsory military service, and
June 1999, when he was drafted. The Court also observes that, as
follows from the expert opinions, the organic brain illness on the
basis of which the applicant was discharged from the army and
registered as having a third-degree disability, did not have any
clinical symptoms and could not be detected through a mere visual
examination. Various complex medical tests, including an MRI scan, a
transcranial scan with Doppler apparatus and an ultrasound scan, were
required to diagnose the applicant’s illness.
In
these circumstances the Court is not convinced by the applicant’s
argument that the Priozersk District Military Medical Commission
should have authorised an in-patient medical examination, which could
have led to his being diagnosed with the brain illness before his
conscription and being excused from military service altogether. The
applicant supported his argument with a reference to his medical
record, which allegedly had been seen by the district commission. In
his opinion, the military medical authorities did not attach the
necessary weight to his suffering from headaches and hypertension in
1987. The Court, however, entertains doubts that the applicant’s
medical history was brought to the attention of the military medical
commission. As follows from the Town Court’s judgment of
18 March 2004, the applicant’s mother was in possession of
his medical record, failing to submit it to the military medical
authorities (see paragraph 37 above). This conclusion is not negated
by the letter from the Sosnovo village hospital which was sent to the
Town Court on 4 December 2001 and on which the applicant
strongly relied in support of his argument (see paragraph 26 above).
The letter confirmed that conscripts’ medical records were, as
a general practice, sent to drafting military commissions. However,
the hospital was unable to produce evidence showing that the
applicant’s medical history had, in fact, been handed over to
the military authorities.
In
any event, irrespective of the finding made in the previous
paragraph, the Court does not consider that the applicant’s
suffering from headaches and his being diagnosed with hypertension
ten years prior to his conscription inevitably imposed an obligation
on the authorities to perform an in-patient examination of him,
particularly in the absence of complaints on his part about the state
of his health and the lack of any medical data showing that the
illness had persisted or that after 1987 he had applied for medical
treatment in connection with the same health problems. The Court is
therefore not able to establish that on the date of the applicant’s
conscription the Russian authorities had substantial grounds to
believe that, if drafted into the army, the applicant, owing to the
state of his health, would face a real risk of treatment proscribed
by Article 3 (see, for similar reasons, X. v. Austria, no.
5560/72, Commission decision of 18 December 1973).
Furthermore,
in assessing the applicant’s complaint, the Court takes into
account the conduct of the Russian authorities during the applicant’s
military service and following his unauthorised leave. In particular,
the Court observes that the applicant did not argue that there had
not been an adequate system of health care in the military unit or
that he had been denied access to medical assistance on any occasion.
In fact, it appears that the applicant did not request medical
services or raise any health complaints while in the army.
Furthermore, there is no evidence that the applicant informed his
commanding personnel of his inability to comply with the requirements
of military service on account of the state of his health. It was not
until his unauthorised leave and his examination in the Bekhterev
Institute that the military authorities became aware of the
applicant’s health problems. In this connection, the Court is
mindful of the authorities’ reaction to the results of the
applicant’s medical examination in the Bekhterev Institute. He
was admitted to a military hospital, a medical examination was
performed and he was immediately discharged from military service,
after the medical experts had confirmed that he was no longer fully
fit to serve. The Court also does not lose sight of the fact that the
applicant was not criminally prosecuted for having deserted the army,
although liability for such an offence was envisaged by Russian law.
In
these circumstances the Court concludes that the Russian authorities
complied to a sufficiently thorough extent with the medical standards
for judging the applicant’s fitness for military duty and took
all feasible precautions, taking into account all circumstances
obtaining at the time, to safeguard his health and to prevent him
from being exposed to treatment prohibited under Article 3 of the
Convention. It follows that this part of the application is
manifestly ill-founded within the meaning of Article 35 § 3
of the Convention, and that it must be rejected pursuant to Article
35 § 4.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON
ACCOUNT OF BEATINGS IN THE ARMY
The
applicant complained that on 5 September and 17 October 1999 he had
been subjected to treatment incompatible with Article 3 of the
Convention and that the authorities had not carried out an effective
investigation of those events, amounting to a breach of Article 13.
The Court will examine this complaint from the standpoint of the
State’s negative and positive obligations flowing from Article
3 of the Convention, cited above.
Submissions by the parties
The
Government argued that the applicant had failed to exhaust the
domestic remedies available to him under Article 125 of the Russian
Code of Criminal Procedure. They stressed that he had not appealed
against the decision of 17 June 2002 to the competent domestic court.
In the alternative, the Government submitted that there was no
objective evidence showing that the applicant had been subjected to
treatment contrary to the requirement of Article 3 of the Convention.
In particular, the expert medical reports, including the most recent
one of 4 May 2006, confirmed that the applicant’s illnesses
were congenital or had been acquired in childhood. The illnesses
could not have resulted from traumas allegedly caused during his
military service. At the same time the Government acknowledged that
one of the expert reports, namely the one issued by the Military
Medical Commission of Medical Clinical Hospital no. 442, stated that
the applicant had “acquired the illness during his military
service”. However, the Government, relying on Regulation 46 of
the Regulations on Military Medical Examinations, provided the
following interpretation of the expert finding. They insisted that by
virtue of Regulation 46, a military medical commission issued a
conclusion that an illness had been acquired during military service
even if that illness had been present before conscription for
military service, but had been diagnosed during military service. In
the Government’s opinion the phrase “acquired during
military service” did not mean that the individual, in the
present case the applicant, had been injured (or felt sick) during
military service.
The
Government further stressed that the investigating authorities had
taken all necessary steps to verify the applicant’s statements.
They had instituted criminal proceedings immediately after the
applicant had applied to the prosecutor’s office and had
authorised an expert medical examination of him. They had interviewed
the applicant on a number of occasions, had identified and questioned
all individuals who, according to the applicant, had witnessed or had
been aware of the alleged beatings, and had performed confrontation
interviews between the applicant and accused individuals and
witnesses. The investigators had also commissioned an additional
examination of the applicant to settle the difference of opinion
emerging in the previous expert reports. They had even carried out a
forensic investigative simulation of the alleged beatings, attempting
to reconstruct the alleged crime scene and verify the statements by
the parties to the criminal proceedings. The Government also stressed
that the fact that a number of decisions on discontinuation of the
criminal proceedings had been quashed did not alter the conclusion
that the investigation had been effective as the quashing had been
carried out for the purpose of ensuring the best representation of
the applicant’s interests.
The
applicant, relying on reports of various international and domestic
non-governmental organisations, including Human Rights Watch, argued
that the armed forces in the Russian Federation were built on a
system of endemic abuses and human rights violations. According to
the applicant, various forms of torture, beatings, humiliation and
violations of the right to health were experienced on a daily basis
by the majority of Russian conscripts. In addition to physical abuse,
first-year conscripts were subjected to extortion of their military
allowance and financial aid sent from home, routine confiscation or
restriction of their food rations, denial of medical assistance and
forced labour. Regard being had to the existence of the endemic
practice of physical and psychological abuse against first-year
conscripts, the applicant, being one of them, could not have avoided
being subjected to it.
The
applicant further drew the Court’s attention to the alleged
defects in the investigation. In particular, he noted that the first
medical examination had been performed more than fourteen months
after the institution of criminal proceedings, that is, on 18 January
2001. As a result of the substantial delay, the experts had been
unable to establish any physical traces resulting from the beatings.
Furthermore, the examination had been psychological and psychiatric
in nature, thus having the primary purpose of detecting abnormalities
in the applicant’s behaviour and his inability to interact
adequately with the investigating authorities. The applicant pointed
out that the expert examination performed by the Military Medical
Commission of Medical Clinical Hospital no. 442 had unequivocally
established that his health had seriously deteriorated during his
military service as the experts had concluded that he had “acquired
the illnesses during his military service”. That finding had
been made in compliance with the requirements of Regulation 46 of the
Regulations. However, the applicant disagreed with the Government’s
interpretation of the phrase “acquired during military
service”. He argued that the illness had developed during his
military service.
The
applicant stressed that the investigators had failed to collect
evidence of the ill-treatment to which he had been subjected in the
army. He explained that the investigators had not questioned
important witnesses. Moreover, as a result of the delay in the
institution of the criminal proceedings, the witnesses who were in
fact questioned had been unable to recall the details of the
incidents of ill-treatment or did not even remember him. The
applicant noted that it was not until 1 June 2001 that the
investigators had questioned soldier B. about the events in October
1999. In the applicant’s view, all those omissions or defects
clearly represented indifference or unwillingness on the
investigating authorities’ part to find out what had really
happened during his military service.
The Court’s assessment
The
Court is mindful of the Government’s argument that the
applicant, by failing to appeal to a court against the decision of 17
June 2002 by which the criminal proceedings had been discontinued,
did not make use of an effective domestic remedy open to him by
virtue of Article 125 of the Russian Code of Criminal Procedure
(see paragraph 64 above). The Court, however, does not need to
address the non-exhaustion argument, as it will, in any event,
dismiss the present complaint for the following reasons.
1. Establishment and evaluation of facts
101. The
Court reiterates that on 9 November 1999, following the applicant’s
unauthorised leave from the military unit, he was examined in the
Bekhterev Scientific Research Institute in connection, inter alia,
with his complaints about the beatings on 5 September and 17 October
1999. The experts diagnosed the applicant with an organic brain
illness resulting from a complex set of factors, such as childhood
craniocerebral traumas, neuroinfections and a perinatal disorder. The
diagnosis was confirmed during the two subsequent expert examinations
performed in the course of the criminal proceedings. The most recent
expert opinion, issued on 4 May 2006, likewise did not deviate from
the previous findings as to the origin of the applicant’s
illness.
The Court observes that none of the four in-depth
expert examinations, including the first one, performed by a civilian
medical institute, recorded any physical traces which could have
resulted from the applicant’s having been subjected to physical
violence during his military service. The expert reports provided a
detailed description of the applicant’s health problems and
laid down a consistent account of their causes, among which recent
head injuries were not listed. While the Court finds it regrettable
that none of the expert opinions directly addressed the issue of the
consistency of the applicant’s health problems with his
allegations of ill-treatment, it is satisfied that the expert
findings did not provide any degree of support to the alleged history
of military violence. In this connection, the Court attributes
particular weight to the fact that the applicant did not challenge
the impartiality and competence of the medical experts who had been
entrusted with the duty of performing the examinations.
The
Court, however, does not lose sight of the applicant’s
allegations that the experts from the medical clinical hospital who
examined him in December 1999 partly confirmed that acts of violence
in the army had been the cause of his brain illness. The applicant
stressed that the experts had concluded that the illness had been
acquired during his military service. The Court, however, is not
convinced by the applicant’s assertion. Having studied the
complete text of the expert opinion issued on 7 December 1999 in
the light of the remaining three expert reports, the Court is more
inclined to accept the Government’s interpretation of the
expert finding as mere confirmation that the illness had been
diagnosed during the applicant’s military service, making him
ineligible to serve in the army. In addition, the Court cannot
overlook the contradictory nature of the applicant’s
submissions. For instance, while raising his complaint that he had
been unlawfully conscripted for military service the applicant did
not dispute that his brain illness was congenital or had been
acquired in early childhood and thus had been present at the time of
his conscription. That assertion was at the heart of his tort action
against the military authorities. However, in his comments on the
Government’s observations pertaining to his alleged
ill-treatment in the army, the applicant described his brain illness
as resulting from the beatings by Captain Ch. or senior conscripts.
The
Court’s conclusion that the applicant’s illness was not
related to his military service is not altered by the fact that in
adjudicating on the applicant’s tort action, the domestic
courts relied heavily on the December 1999 expert report, finding
that his illness had been acquired during military service. In
contrast to the Court, the domestic courts did not have all the four
expert reports before them to reconcile the somewhat contradictory
wording of the first two reports. It is particularly worth noting
that the courts precisely cited the applicant’s refusal to
undergo an additional expert examination and the ensuing absence of
expert evidence which could have allowed them to make a conclusive
finding as to the origin of the applicant’s illness.
The
Court further observes that the evidence collected in the course of
the investigation into the applicant’s allegations of
ill-treatment and submitted to the Court also corroborates the
non-violent nature of the applicant’s illness. In particular,
as follows from statements by the applicant’s former fellow
soldiers, they had not witnessed any acts of violence against him.
The Court attaches particular weight to the fact that those witnesses
repeated their statements during the subsequent questionings and
confrontation interviews with the applicant when they were no longer
serving in the army. Furthermore, the forensic investigative
simulation of the incident produced the conclusive finding that no
blows could have been administered to the applicant in the
circumstances as described by him. The Court considers it important
that the applicant did not argue that the investigation simulation
had been compromised through the movement of exhibits or the
destruction, loss or addition of evidence.
The Court further reiterates the applicant’s
argument that, even if the evidence before it does not support his
allegations of ill-treatment, the generally drastic situation in the
Russian armed forces characterised by the endemic practice of abuses
and human rights violations against first-year conscripts unavoidably
made him the subject of such a practice. In this connection the Court
observes that it has no intention of putting
the entire Russian military system on trial and only has to
concentrate on the particular facts of the present case. In
the circumstances of the present case, however, the Court does not
find it established that during his military service the applicant
was subjected, by officers or fellow soldiers, to treatment contrary
to Article 3 of the Convention.
Procedural obligation under Article 3 of the Convention
The Court reiterates that where an individual raises
an arguable claim that he has been seriously ill-treated in breach of
Article 3, 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. An obligation to
investigate “is not an obligation of result, but of means”:
not every investigation should necessarily be successful or come to a
conclusion which coincides with the claimant’s account of
events; however, it should in principle be capable of leading to the
establishment of the facts of the case and, if the allegations prove
to be true, to the identification and punishment of those
responsible. Thus, the investigation of serious allegations of
ill-treatment must be thorough. That means that 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,
forensic evidence, and so on. 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, among many authorities, Assenov and Others v.
Bulgaria, 28 October 1998, §§ 102 et seq., Reports
1998 VIII).
Turning
to the circumstances of the present case, the Court considers that
the applicant’s allegations of an existing systematic practice
of physical abuse in respect of first-year conscripts in the Russian
army, documented by a prominent international human rights
organisation (see paragraphs 65-67 above), and his complaints of
serious ill-treatment during his military service, as well as the
existence of the expert opinion, which, to some extent, contained a
confusing conclusion as to the time when the applicant’s brain
illness had been acquired, together raise a reasonable suspicion that
his illness could have resulted from his being subjected to violence
in the army. The applicant’s complaint in this regard is
therefore “arguable”. The authorities thus had an
obligation to carry out an effective investigation into the
circumstances which led to the applicant acquiring the illness (see
Krastanov v. Bulgaria, no. 50222/99, § 58,
30 September 2004).
In
this connection, the Court notes that the prosecution authorities,
who were made aware of the applicant’s alleged beating, carried
out a preliminary investigation which did not result in criminal
prosecution. In the Court’s opinion, the issue is consequently
not so much whether there was an investigation, since the parties did
not dispute that there was one, but whether it was conducted
diligently, whether the authorities were determined to identify and
prosecute those responsible and, accordingly, whether the
investigation was “effective”.
The Court will therefore first assess the promptness
of the prosecutor’s investigation, viewed as a gauge of the
authorities’ determination to identify and, if need be,
prosecute those responsible for the applicant’s ill-treatment
(see Selmouni v. France [GC], no. 25803/94, §§
78 and 79, ECHR 1999-V). In the present case the applicant complained
of ill-treatment to the prosecution authorities on 12 November 1999
(see paragraph 16 above). The Court is mindful of the fact that the
prosecutor’s office opened its investigation immediately after
being notified of the alleged beatings. On 15 November 1999 the
applicant was admitted to the neurology unit of a military hospital,
where he was subjected to a medical examination authorised by the
investigating authorities. Further steps were taken in the aftermath
of the applicant’s release from the hospital. In particular,
following the results of the preliminary inquiry into the applicant’s
ill-treatment complaint, on 6 March 2000 the prosecution authorities
instituted criminal proceedings. While the Court is aware that a
certain period elapsed between the applicant’s release from the
hospital and the decision to institute criminal proceedings, it is,
however, of the opinion that the prosecution authorities needed that
time to gather evidence and make their preliminary assessment in
order to identify the procedural avenues for proceeding with the
applicant’s complaint. The Court accepts that even where an
investigation is carried out expeditiously, considerable time may
elapse between the different phases of the investigation, for
instance, to ensure that the evidence collected is of a sufficient
quality to be used for criminal prosecution of the alleged
perpetrators of the offence and to corroborate or disprove any
allegations to the required standard of proof.
In
the months following the opening of the criminal proceedings the
authorities took significant investigative measures, including
questioning of the applicant, the accused Captain Ch., and the
applicant’s fellow soldiers, performing confrontation
interviews to settle the differences in the parties’ accounts
of events and obtaining an additional expert opinion. They also
performed a forensic investigative simulation of the incident which
allegedly took place between the applicant and Captain Ch., providing
the former with an opportunity to participate in the reconstruction
of the events at the scene of the alleged incident. Furthermore, the
Court does not find the fact that the three investigators’
decisions were annulled by a higher-ranking prosecutor owing to
certain procedural defects to be evidence of the inefficiency of the
investigation, since from the material in the case file it follows
that the investigating authorities made diligent efforts to establish
the circumstances of the events and to reconcile their conflicting
accounts. In particular, they persistently tried to identify and
interview additional witnesses who could have shed light on the
events in question. They also further questioned the known witnesses
in order to eliminate or explain the discrepancies which had arisen
in their previous statements. The Court is also mindful that the
authorities’ task was complicated by the fact that the
applicant’s complaints related to two incidents of alleged
ill-treatment involving the officer and senior conscripts. In this
connection, while regretting that there was a certain delay before
the investigators interviewed the senior soldiers who had allegedly
ill-treated the applicant or could have witnessed the beatings, the
Court considers that such a delay did not affect the efficiency of
the investigation as it did not lead to a loss of opportunities for
the collection of evidence and did not prevent the inquiry from
establishing the principal facts of the case.
The Court is also of the opinion that from the start
of the investigation the authorities thoroughly evaluated the medical
evidence before them, attempting to draw conclusions from it, without
accepting too readily the version of events put forward by the
accused. The Court observes, and it was not disputed by the
applicant, that the investigation was carried out by competent,
qualified and impartial experts, who were independent of the
suspected perpetrators. It was also undisputed that the investigators
had unrestricted access to all necessary information, documents and
persons, budgetary resources and technical facilities to investigate
fully all aspects of the applicant’s complaints. Once the
investigation was completed, the applicant was given a reasoned
decision in writing which set out the evidence as well as the
finding, explaining why the investigator had reached his conclusion
to drop the charges. Furthermore, the conduct of the investigation
was reviewed by a higher-ranking prosecutor (see paragraph 51 above).
Accordingly, the Court does not find it established
that the investigating authorities failed to look for evidence that
corroborated the applicant’s allegations or showed the
existence of a pattern of possible ill-treatment practices in the
military unit, or that they displayed a deferential attitude towards
the suspected persons. The Court also finds that the authorities
may be regarded as having acted with sufficient promptness and having
proceeded with reasonable expedition. The Court therefore considers
that the domestic investigation was effective for the purposes of
Article 3 of the Convention.
3. Summary of the findings
Having
regard to its findings in paragraphs 102-106 and 110-113 above, the
Court finds that the applicant’s complaint concerning the
alleged incidents of ill-treatment in the army and the ineffective
investigation into them is manifestly ill-founded within the meaning
of Article 35 § 3 of the Convention, and that it must be
rejected pursuant to Article 35 § 4.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON
ACCOUNT OF THE LENGTH OF THE TORT PROCEEDINGS
The
applicant complained that the length of the tort proceedings had been
incompatible with the “reasonable time” requirement laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
Submissions by the parties
The
Government submitted that the applicant’s complaints about the
excessive length of the proceedings were manifestly ill-founded. They
stressed that the overall length of the proceedings had an objective
justification. A number of stays in the proceedings had been granted
following requests from the applicant’s representative.
Furthermore, the defendants had failed to appear on several
occasions, causing additional delays in the proceedings. In the
Government’s opinion, the domestic courts had acted diligently,
taking every possible step to ensure the fair and thorough
examination of the applicant’s claims.
The
applicant averred that the delays in the proceedings occasioned by
his representatives’ requests had been insignificant as opposed
to the delays caused by the domestic courts’ inability to act
diligently or the defendants’ failure to attend hearings. The
applicant noted the long periods it had taken the Town Court to
schedule hearings. He also drew the Court’s attention to the
Town Court’s consistent failure to discipline the State
authorities when they had failed to respond promptly to its requests
for provision of evidence or to take measures to ensure the
defendants’ presence at the hearings. Another delay had been
caused by a change in the Town Court’s composition, when the
new presiding judge had been assigned to the case.
B. The Court’s assessment
1. Admissibility
The
Court observes, and it was not disputed by the parties, that the
period to be taken into consideration began on 19 January 2000, when
the applicant brought his action against the military commissions. It
ended on 2 June 2004 with the final judgment of the Leningrad
Regional Court, dismissing the action in full. It thus lasted
approximately four years and four months before two levels of
jurisdiction.
The
Court notes that the complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention and that
it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicants and the relevant authorities and what
was at stake for the applicants in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
The
Court notes that the parties did not argue that the case was complex.
As
regards the applicant’s conduct, the Court is not convinced by
the Government’s argument that the applicant should be
criticised for requesting the adjournment of hearings in order for
additional evidence to be obtained or to be able to study the
evidence submitted by the defendants. It has been the Court’s
consistent approach that an applicant cannot be blamed for taking
full advantage of the resources afforded by national law in the
defence of his or her interests (see Skorobogatova
v. Russia, no. 33914/02, § 47, 1 December 2005).
The Court further observes, and this was not disputed by the parties,
that one hearing was rescheduled in the period of more than four
years during which the proceedings were pending, because the
applicant’s representative failed to appear. Irrespective
of the reasons for the representative’s behaviour, the Court
finds that the delay incurred through her absence was negligible,
having regard to the overall length of the proceedings.
The
Court observes, on the other hand, that substantial periods of
inactivity, for which the Government have not submitted any
satisfactory explanation, are attributable to the domestic
authorities. It took the District Court several months to fix
hearings. For example, a period of almost nine months elapsed between
19 January 2000, when the Town Court received the applicant’s
statement of claims, and 4 October 2000, when the presiding judge
delivered the first decision, accepting the case for adjudication
(see paragraphs 20 and 22 above). Nor were any hearings held between
December 2000 and 26 September 2001 (see paragraphs 23 and 24 above).
Furthermore,
the Court observes that the composition of the Town Court hearing the
case changed in 2002, causing another delay in the proceedings (see
paragraph 30 above). When the presiding judge resigned, the
proceedings recommenced, which involved scheduling new hearings,
rehearing the parties and re-examining evidence. In this connection
the Court notes that Article 6 § 1 of the Convention imposes on
Contracting States the duty to organise their judicial systems in
such a way that their courts are able to fulfil the obligation to
decide cases within a reasonable time (see, among other authorities,
Löffler v. Austria (No. 2), no. 72159/01, § 57,
4 March 2004). In addition, the Court considers it striking that
it took the Town Court over a year to obtain evidence, in particular
the applicant’s personal file of a conscript, which was
necessary for the examination of the action (see paragraphs 22 and 29
above). The Court does not lose sight of other delays in the
proceedings which resulted from a similar failure by the Town Court
to discipline the authorities responsible for the delays in the
provision of documents (see paragraph 26 above).
The Court furthermore notes that the conduct of the
defendants, who were State officials, was one of the reasons for the
prolongation of the proceedings. In the Court’s opinion, the
domestic authorities failed to take adequate steps in order to ensure
their attendance. The defendants failed to appear on at least five
occasions, which resulted in a delay of approximately seven months.
While the Court does not lose sight of the letter which the Town
Court sent on 13 March 2003 to the defendants, reacting to their
failure to attend and warning about the consequences of such conduct,
it is nevertheless mindful of the fact that despite the warning the
defendants failed to attend another hearing scheduled for 16 October
2003. No steps were taken by the Town Court to implement the warning
in order to avoid future delays in the proceedings. Accordingly, the
Court considers that the domestic courts did not make use of the
measures available to them under national law to discipline the
participants in the proceedings and to ensure
that the case was heard within a reasonable
time (see Rybakov v. Russia,
no. 14983/04, § 32, 22 December 2005).
Finally, the Court reiterates that the dispute in the
present case concerned compensation for health damage allegedly
resulting from negligence on the part of the State military and
medical authorities. The Court reiterates that the nature of the
dispute called for particular diligence on the part of the domestic
courts (see Marchenko v. Russia, no. 29510/04, § 40, 5
October 2006).
Having
regard to the overall length of the proceedings,
the Court concludes that the applicant’s case was not examined
within a reasonable time. There has accordingly been a violation of
Article 6 § 1 of the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
Court has examined the other complaints submitted by the applicant.
However, having regard to all the material in its possession, and in
so far as these complaints fall within the Court’s competence,
it finds that they do not disclose any appearance of a violation of
the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application must be rejected as
being manifestly ill-founded, pursuant to Article 35 §§ 3
and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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.”
A. Damage
The
applicant, without providing further details or submitting documents
in support of his claims, claimed 256,000 Russian roubles (RUB) in
respect of pecuniary damage. He further claimed RUB 1,320,000 in
compensation for non-pecuniary damage.
The
Government submitted that the applicant’s claims were confusing
and manifestly ill-founded. They maintained that in any event, the
applicant should be awarded “a symbolic sum” of 1,000
euros (EUR) if the Court found a violation of his Convention rights.
The
Court observes that the applicant did not provide any explanation as
to the amount claimed in respect of pecuniary damage and did not
submit any documents in support. Consequently, there is no cause to
make an award under that head.
On
the other hand, the Court considers that the applicant suffered
distress, anxiety and frustration because of the unreasonable length
of the proceedings pertaining to his tort action. Making its
assessment on an equitable basis, it awards the applicant EUR 2,000
in respect of non pecuniary damage, plus any tax that may be
chargeable on the above amount.
B. Costs and expenses
The
applicant did not make any claims for the costs and expenses incurred
before the domestic courts and before the Court.
Accordingly,
the Court does not award any sum under this head.
C. Default interest
The
Court considers it appropriate that the default interest 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
Declares the complaint concerning the excessive
length of the tort proceedings admissible and the remainder of the
application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds
(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, EUR 2,000 (two
thousand euros) in respect of non-pecuniary damage, to be converted
into Russian roubles at the rate applicable at the date of the
settlement, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 11 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
