European Court of Human Rights

Information Note on the Court’s case-law No. 159

January 2013

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.

 

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