Information
Note on the Court’s case-law No. 159
Mosendz
v. Ukraine - 52013/08
Judgment 17.1.2013 [Section V]
Article 2
Positive obligations
Article 2-1
Life
Effective investigation
Failure
to establish responsibility of senior officers for conscript’s suicide
following incident of hazing: violation
Facts - In April 1999 the applicant’s son, who was
performing mandatory military service at the time, was found dead, with gunshot
wounds to his head, about six hundred metres from his post. A criminal
investigation which found that the death was a suicide was repeatedly reopened
on the grounds that it had not been sufficiently thorough. In 2003 an
ex-private explained that on the night of the applicant’s son death two
sergeants had criticised him and the applicant’s son. They had taken them to a
separate room where they had forced them to read military statutes and to do
push-ups at the same time. At some point the applicant’s son had collapsed. One
sergeant had ordered him to continue and, when he had failed to do so, the
sergeant had kicked him and struck him on the back. The ex-private explained
that he had been withholding this information through fear of reprisals. In
2005 one of the two sergeants confessed that he had ill-treated the applicant’s
son. He was sentenced and stripped of his military rank. Later the other
sergeant was relieved from criminal liability as prosecution of the charge had
become time-barred. However, the investigator refused to institute criminal
proceedings against senior officers in the absence of a corpus delicti,
as they had not personally bullied the applicant’s son and had not instructed
anybody to do so. The applicant lodged civil and administrative claims against
the Ministry of Interior which are still pending.
Law - Article 2: The authorities had assumed the
version of a suicide too readily from the outset and had pursued it throughout
the investigation, without seriously considering any alternatives. At the same
time, a number of gross discrepancies and omissions in the investigation, and
certain inexplicable aspects of the case, had undermined the plausibility of
the findings and given grounds for serious misgivings regarding the good faith
of the authorities concerned and the genuineness of their efforts to establish
the truth. It therefore appeared that all the pertinent facts surrounding the
incident which, according to the domestic investigation and judicial
authorities, had prompted the suicide of the applicant’s son, could not be
regarded as having been established with sufficient precision. The domestic
authorities, however, had contented themselves with these factual findings. In
particular, one of the two sergeants had successfully evaded prosecution until
the charges against him had become time-barred. Allowing such a grievous charge
to become time-barred was in itself an omission serious enough to raise an
issue under Article 2. Moreover, the investigation had stalled and the
applicant’s claim against the higher military authority remained unadjudicated.
Thus, the State authorities could not be regarded as having discharged their
obligation to effectively investigate and duly account for the death of the
applicant’s son, which had occurred while he was under their control. It had
been that ill-treatment, and not any frustrating life situation unrelated to
the realities of being in the army, that had caused the suicide. The State
therefore bore responsibility for the death.
Lastly, having regard to the widespread concern that had
been voiced (in particular, in the Ukrainian Ombudsman’s report and in some
international materials) over the existence of hazing in the Ukrainian army,
the Court did not rule out the existence of a broader context of coercive
hazing in the military unit where the applicant’s son had been serving. That
being so, the failure to allocate the responsibility for what had happened
there to upper echelons of the hierarchy, rather than limiting it to the
wrongdoings of individual officers, was especially worrying. Therefore, there
had been a violation of the State’s positive obligation to protect the life of
the applicant’s son while under its control and to adequately account for his
death, and of the procedural obligation to conduct an effective investigation
into the matter.
Conclusion: violation (unanimously).
Article 41: EUR 20,000 in respect of non-pecuniary damage;
claim in respect of pecuniary damage dismissed.