European Court of Human Rights

 

 

 

THIRD SECTION

CASE OF STYAZHKOVA v. RUSSIA

( Application no. 14791/04 )

 

 

 

 

 

 

 

 

JUDGMENT
 

STRASBOURG

14 January 2020

 

This judgment is final but it may be subject to editorial revision.

In the case of Styazhkova v. Russia ,

The European Court of Human Rights ( Third Section ), sitting as a Committee composed of:

Georgios A. Serghides, President,
Erik Wennerström,
Lorraine Schembri Orland, judges,
and Stephen Phillips , Section Registrar ,

Having deliberated in private on 3 December 2019 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 .     The case originated in an application (no. 14791/04) 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, Lyubov Aleksandrovna Styazhkova ("the applicant"), on 8 April 2004.

2 .     The applicant was represented before the Court by lawyers of the Memorial Human Rights Centre, based in Moscow. The Russian Government ("the Government") were initially represented by Mr   G.   Matyushkin, the former Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3 .     On 5   July 2011 the Government were given notice of the application.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4 .     The applicant was born in 1952 and lives in Ryazan, the Ryazan Region.

1. Death of the applicant ' s son and inquiry by the military prosecutor ' s office based in Borzoy

5 .     On 29 December 2001 the applicant ' s son was drafted for military service. From 10 July 2002 he served in military unit no. 44822, based in the village of Borzoy, the Chechen Republic.

6 .     On 8 August 2002 the military unit informed the competent military prosecutor ' s office that the applicant ' s son had been found dead on its premises. On the same day a military prosecutor, Major F., and an investigator, Senior Lieutenant T., both from military unit no.   20119, examined the scene of the incident. Senior Lt T. also inspected the applicant ' s son ' s body and took photographs. The examinations were carried out in the presence of witnesses, who were soldiers of military unit no. 44822. The investigator was assisted by Captain K., a doctor from the same unit.

7 .     The record of the inspection of the scene indicated, in particular, that the body of a young man with an automatic rifle in his hands had been inside the entrenchment. The record of the body examination noted traces of two gunshots in the right temple. It further mentioned numerous bruises dating from one to five days on different parts of the body, including the face, nose, shoulders, abdomen, and various places on the legs.

8 .     On the same day the applicant ' s son ' s body was sent for a forensic medical examination.

9 .     Senior Lieutenant G., commander of Private Styazhkov ' s troop, explained to the military prosecutor that on 8   August 2002 his troop was carrying out sentry duty. At around 5.48 a.m. Senior Lieutenant B., commander of the Pte Styazhkov ' s platoon, made an inspection round of his soldiers and found Ptes Styazhkov and D. sleeping. Senior Lt B. gave them a discipline talk and left. Senior Lt G. heard an automatic rifle burst at around 6.30 a.m. and learnt from Senior Lt B. that Pte Styazhkov had shot himself. According to Pte D., just before the shots, Pte Styazhkov had stepped further along the entrenchment to relieve himself. During the shots there was nobody near Styazhkov and nobody had seen him. Pte Styazhkov had fired into his right temple, by pressing his AK-47 rifle against the ground. Senior Lt G. noted that Pte Styazhkov had not submitted any complaints to him and that he did not know the reasons for his actions.

2. Institution of a criminal investigation into the death of the applicant ' s son

10 .     Later on 8 August 2002 the military prosecutor initiated a criminal investigation in respect of unidentified soldiers whose actions had led the applicant ' s son to commit suicide. He held that around 6.30   a.m. Pte Styazhkov had fired two shots at himself by putting the muzzle of his rifle against his right temple, causing by those actions his death.

11 .     During the next few days investigators interviewed several officers and soldiers from the applicant ' s son ' s military unit.

1. Statement by Senior Lieutenant B. on 8 August 2002

12 .     Senior Lieutenant B. submitted that he was the commander of platoon no. 3. At around 5.30 a.m. Sergeant K. and Pte S. came to see him after an inspection round and informed him that Ptes Styazhkov and D. had been sleeping while on guard. Sgt K. handed him an automatic rifle which he had taken from S. and asked him to resolve the matter. B. took the rifle and went to see Pte Styazhkov and D. They were sleeping again. He returned the rifle back to Pte Styazhkov and explained to him that he had been putting his own life and the lives of his fellow soldiers in danger by sleeping on duty. Afterwards he went to inspect another post and at around 6.30 a.m. he heard a long automatic rifle burst. He ran towards the scene of the shooting together with other soldiers. At the scene he was told by others that Styazhkov had part of his head destroyed. B. immediately contacted the commanding officer of the troop and informed him that Styazhkov had been killed in a fight. B. also submitted that during his talk with Styazhkov he had not used any physical force against him.

2. Statement by Pte D. on 8 August 2002

13 .     Pte D. submitted that he had been on friendly terms with Pte   Styazhkov. The latter had never complained to him about any problems in his life and had never talked about suicidal ideas. Pte Styazhkov seemed to be a person who was full of zest and cheerful. D. confirmed that at around 3   a.m. on the night of the events they had fallen asleep holding their rifles. Sgt K. and Pte Se. had woken them up. Sgt K. was very rude with them. He took away Styazhkov ' s rifle and told them to do fifty press-ups and then to crawl along the ground for about twenty-five metres. It was not an easy task while wearing helmets and bulletproof vests. Afterwards Pte   Se. hit Styazhkov in the chest at least five times with the rifle. After each hit Styazhkov staggered back. Then, Pte   Se. undressed them, threw Styazhkov to the ground, kicked him in the chest at least three times and hit his legs with a rifle. Styazhkov was angry that his rifle was taken away from him. Some time later, Senior Lt B. came over to see them and returned the rifle to Styazhkov. He said that if they fell asleep again he would punish them. At around 6 a.m. Pte Styazhkov said that he had to relieve himself and went down to the entrenchment. Five minutes later, D. heard a rifle burst. At first he did not understand what was going on. Then, Sgt K., Senior Lt   B. and Pte Se. came over and together they went to the entrenchment. There they saw Styazhkov with a rifle and with traces of gunshots in his head.

3. Confession by Sgt K. on 8 August 2002 and his subsequent questioning as a witness

14 .     At 6.30 p.m. Sgt K. made an official confession. He submitted, in particular, that when he had seen Styazhkov on the night of the event he had hit him twice in the chest and had then told him and Pte D. to do fifteen press-ups and to crawl along the ground for about ten metres. He had also taken away his rifle.

15 .     Later that evening, Sgt K. was questioned as a witness. He submitted that during the night of the events he and Pte S. had caught Ptes Styazhkov and D. sleeping on duty three times. On the third occasion he had hit Styazhkov in the chest, first with his left leg and then with his right arm. He had never hit him with a rifle. Afterwards he had ordered them to do about ten press-ups and to crawl along the ground for about ten metres. He had also seen Pte S. hitting Styazhkov with a rifle five to seven times. Then he had seen Styazhkov lying on the ground and Pte S. beating him with a rifle. During the beating Styazhkov exclaimed that he would never again fall asleep while on duty.

4. Confession by Pte S. made on 9 August 2002

16 .     On 9 August 2002 Pte S. made an official confession. He submitted that when he and Sgt K. had caught Ptes Styazhkov and D. sleeping, Styazhkov had refused to admit it and that that had made him very angry. That was why he had started beating Styazhkov with a rifle in the chest and legs about fifteen to twenty times. The beatings had taken place at around 3.45 a.m.

3. Refusal to bring criminal proceedings against Sgt K. and Pte S. on account of the alleged beatings of the applicant ' s son

17 .     On 11 August 2002 investigator S. refused to institute criminal proceedings in respect of Sgt K. and Pte S. in relation to the beatings of Pte Styazhkov. He held as follows:

"It follows from the evidence gathered during the investigation that on 8 August 2002 at around 3.30 a.m. ... Sgt K. kicked Pte Styazhkov once in the chest, then punched him once (through a bulletproof vest). Also, Sgt K. punched Pte D. (through a bulletproof vest). Later, Sgt K. ordered Ptes Styazhkov and D. to do at least fifty press-ups and to crawl along the ground for about twenty-five metres.

Formally, in the actions of Sgt K. there are indications of the corpus delicti under Article 286 § 3 (a) of the CC of the RF [Criminal Code of the Russian Federation] [abuse of power]. However, taking into account that Sgt K. used violence against the above persons in order to stop them from falling asleep on duty, that he committed that offence for the first time, that his actions did not entail any serious consequences, ... and that the above-mentioned actions do not represent any danger to society, ... no   criminal proceedings should be initiated in respect of him ...

It follows from the evidence gathered during the investigation that on 8 August 2002 at around 3.30 a.m. ... Pte S. hit Styazhkov in the chest at least three times.

Formally, in the actions of Se. there are indications of the corpus delicti under Article 335 § 1 of the CC of the RF [Criminal Code of the Russian Federation] [breach of rules of relationship between servicemen of equal rank]. However, taking into account that during the investigation those facts have not been objectively confirmed, and that Sgt K. and Pte Se. have likewise not confirmed them, no criminal proceedings should be initiated on that account ..."

4. Forensic examinations
   1. Ballistic test

18 .     On 13 August 2002 investigator S. ordered a ballistic test of the rifle belonging to Pte Styazhkov. The expert report of 30 August 2002 established firstly that the rifle had been in good technical condition and had been fit to fire shots; secondly, it had been impossible to fire any shots without pressing the trigger of the rifle; and thirdly, shots had been fired from the rifle after the last time it had been cleaned. Finally, the experts could not answer whether the spent cartridges found near the applicant ' s son ' s body had been fired from the rifle in question because those cartridges (twenty-one in total) had not been submitted for the test.

19 .     On 3 September 2002 investigator S. ordered that twenty-one spent cartridges discovered near the place where the applicant ' s son ' s body had been found be added to the evidence in the criminal case file.

2. Autopsy

20 .     The autopsy report of 11   September 2002 found that the applicant ' s son had died as a result of two gun shots, which could had been fired by a single rifle burst and could have been inflicted by his own hand. The report further indicated that   the body had numerous bruises on the face and on the lower limbs (legs) which could have been caused by at least nine hits with a hard blunt object(s) and which had been inflicted one or two days before the death.

3. Psychological expert report

21 .     The psychological expert report prepared after Pte Styazhkov ' s death stated that when alive he had not suffered from any mental disorder which could have predisposed him to commit suicide. At the time of the events Styazhkov had been aware of his actions and able to control them. Just before his suicide Styazhkov had been in a state of severe stress caused by the actions of Pte S. That stressful state of mind could have influenced his behaviour and could have predisposed him to take a decision to end his life.

5. The applicant ' s victim status

22 .     On 14   September 2002 the applicant was granted victim status in the ongoing criminal investigation.

6. Criminal proceedings against Pte S.

23 .     On 25 October 2002 Pte S. was charged with having incited the applicant ' s son to commit suicide and having breached the rules on relations between servicemen of equal rank. On the same day his criminal case was sent for trial. The applicant brought a civil claim for damages against Pte S.

24 .     On 22 November 2002 the Military Court of the North Caucasus Circuit set the preliminary hearing of the case for 4 December 2002 in order to determine the first-instance court competent to examine the case.

25 .     On 4 December 2002, at the request of the defendant, the Military Court of the North Caucasus Circuit referred the case for trial to the Military Court of the Bataysk Garrison. The latter received the case file on 16   December 2002.

26 .     The applicant submitted that she had been summoned to court hearings scheduled for 23 January 2003, 10 and 25 February 2003 and 5   March 2003, but as neither the defendant nor the prosecution had appeared, the court hearings had not taken place. On the last hearing the applicant allegedly submitted an application to perform a fresh ballistics examination.

27 .     On 6 June 2003 the State Duma passed an act of amnesty which provided, among others, for discontinuation of criminal proceedings against servicemen who had committed criminal offences during the armed conflict and/or anti-terrorist operations in the territory of the former Autonomous Soviet Socialist Republic of Chechnya-Ingushetia if they had not yet been examined by the courts.

28 .     On 12 August 2003 the military court discontinued the criminal proceedings against Pte S. as the case had not been examined by that moment (see paragraph 29 above). The court found as follows:

"S. is accused of the following: on 8   August 2002 at about 4 a.m. while performing his sentry duty at a station post near the COP of the military unit no. 44822, located at the Borzoy settlement of the Chechen Republic, having discovered that Pte Styazhkov was sleeping on duty, he gave him at least five blows with the rifle into the chest, a blow with the fist onto the face, and then, after having pushed him to the ground, gave about another twenty blows with the rifle on the legs, thus afflicting beatings and physical pain.

Having not borne the cruel treatment, Styazhkov after a short time, at about 6.30   a.m. on 8   August 2002, at the entrenchment of the outpost position committed suicide by making two rifle shots in the head.

The above actions of S. are qualified by the preliminary investigation authorities to fall under Articles 335 § 3 and 110 of the Criminal Code of the RF.

According to Section 2 of [the 2003 Amnesty Act] criminal cases which had not yet been examined in respect of servicemen having committed publicly dangerous actions during anti-terrorist operations in the territory of the former Republic of Chechnya - Ingushetia are to be discontinued.

Pte S. committed a publicly dangerous action during the anti-terrorist operation in the territory of the Chechen Republic. S. does not object to the discontinuing of the criminal case against him based on the amnesty act.

Based on the above, the case against S. ..., which had not been examined by the time when the Amnesty Act entered into force, is to be discontinued. ..."

29 .     By the same decision the Military Court of the Bataysk Garrison left the applicant ' s civil claims unexamined and explained that she retained the right to bring her claims by a separate civil action.

30 .     On 9 October 2003 the Military Court of the North Caucasus Circuit rejected the applicant ' s appeal against the decision of 12   August 2003 having endorsed the reasoning of the first-instance court.

 

THE LAW

1. ALLEGED VIOLATION OF ARTICLES 2 and 3 OF THE CONVENTION

31 .     The applicant complained about her son ' s ill-treatment and death under Articles 2 and 3 of the Convention. She also complained about lack of effective investigation thereof relying on Articles   2, 3 and 13 of the Convention. The relevant provisions read as follows:

Article 2

"1.     Everyone ' s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

..."

Article 3

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

1. Admissibility

32 .     The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

2. Merits
   1. Submissions by the parties

(a)    The applicant

33 .     The applicant submitted that Sgt K. and Pte S. had hit her son with fists and a rifle. Their violent actions had caused her son serious physical pain and had been obviously aimed at humiliating and injuring him (see Raninen v. Finland , 16 December 1997, § 55, Reports of Judgments and Decisions 1997 - VIII, and Beganović v. Croatia , no. 46423/06 , § 67, 25 June 2009).

34 .     Sgt K. and Pte S. ' s actions were directly attributable to the respondent State. Both servicemen at the time of the events were on duty. Sgt K. had exercised official powers over the deceased. Even if Pte S. was of the same rank as the deceased, he acted as a superior towards him as he had been inspecting the sentry posts together with Sgt K.

35 .     Based on the above the applicant considered that the State had breached Article 3 of the Convention.

36 .     The applicant further submitted that the investigation into the events leading to the death of her son had not been thorough and effective. She drew attention to its following deficiencies: no alternative to suicide versions had been examined; no reconstruction of the events had been attempted; no examination of the applicant ' s son ' s hands or clothes for gunpowder residue (see Sergey Shevchenko v. Ukraine , no. 32478/02, § 73, 4 April 2006) or of hands of the servicemen ( Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 326, ECHR 2007 - II) had been performed; no fingerprint testing took place. Finally, the twenty one spent cartridges found three metres away from the applicant ' s son ' s body were not examined by a ballistics expert and their provenance was not explained by the investigation. The applicant submitted that the investigation performed by military prosecutors had not been independent. She was not properly informed about the progress of the investigation; she was belatedly granted her victim status only on 14 September 2002 when all forensic examinations had been finished, and had been able to study the case - materials only when the case had been sent for trial.

37 .     The applicant further noted that only Pte S. had been indicted, but not Sgt K. who had also been involved in the ill-treatment of her son. The investigator decided to refuse to open criminal proceedings against Sgt K. only two days after the incident, before any results of the forensic examinations were ready.

38 .     The applicant further submitted that the domestic courts also had failed to provide any plausible or convincing explanation of the circumstances of her son ' s death. In the present case the Military Court of the Bataysk Garrison discontinued the criminal proceedings against Pte S. based on the 2003 Amnesty Act. It did not establish the suspect ' s criminal liability and, thus, his punishment had not been adequate.

39 .     The applicant concluded that the above omissions and discrepancies committed by the investigating and judicial authorities demonstrate that the suicide version was clearly not a convincing and plausible explanation of the deceased ' s death. Accordingly, the State was directly responsible for the applicant ' s son ' s death in violation of Article 2 of the Convention. She also submitted that the State had failed to comply with its procedural obligations under Articles 2 and 3 of the Convention.

(b)    The Government

40 .     The Government submitted that Pte S. ' s violent actions in respect of the applicant ' s son which had caused him to commit suicide, had constituted a breach of rules on relations between servicemen of equal rank under the national criminal law and amounted to an ill-treatment prohibited under Article 3 of the Convention. Thus, the Government considered that there had been a violation of Article 3 of the Convention in respect of the applicant ' s son.

41 .     The Government further claimed that although the unlawful actions of Pte S. had been the reason for the applicant ' s son ' s suicide, there had been no direct cause-effect relationship between them. Thus, there had been no violation of Article 2 of the Convention under its substantive heading because the applicant ' s son ' s death had resulted from his own actions.

42 .     The Government submitted that the investigation into the events leading to the applicant ' s son ' s death had been effective. In particular, the criminal investigation was initiated immediately, on 8 August 2002. In less than twenty four hours the investigation established the person implicated in the offence, Pte S. It was found that on 7   August 2002 the applicant ' s son had taken up his sentry duty, being armed with a rifle. At about 4 a.m. on 8   August 2002 Pte S., who was inspecting the outposts on that night, found the applicant ' s son sleeping in the entrenchment. Pte S. woke him up and hit him with the rifle about twenty times in the chest and leg areas and once with a fist in the face. Two hours later the applicant ' s son committed suicide. Other versions, including homicide, had been also examined, but rejected as unsubstantiated. As a result of the investigation Pte S. was charged with having breached rules on relations between servicemen of equal rank and with having incited the applicant ' s son to suicide. The criminal case was quickly sent to court for trial. The case was terminated following the adoption of an Act of Amnesty. The applicant ' s civil claims against Pte S. were left without examination, but she retained the right to submit a civil action against him. The Government considered that discharging Pte S. from criminal liability based on the Amnesty Act could not have rendered the investigation ineffective.

2. The Courts ' assessment

(a)    General principles

43 .     See the recapitulation of the relevant principles with regard to States ' obligations under the substantive aspect of Article 2 of the Convention in respect of the individuals undergoing compulsory military service in a recent case of Malik Babayev v. Azerbaijan (no. 30500/11, §§ 64-68, 1 June 2017).

44 .     The general principles related to States ' procedural obligations under Article 2 of the Convention can also be found in the case of Malik Babayev (cited above, §§ 79-81).

45 .     The general principles in respect of States ' obligations under Article   3 of the Convention in the context of the military service can be found in Chember v. Russia (no. 7188/03, §§ 48-50, ECHR 2008).

(b)    Application in the present case

(i)   Substantive aspect of Article 2 of the Convention

46 .     Given the evidence before it the Court does not have reasons enough to reach a conclusion different from that of the domestic authorities. Although many aspects of the domestic investigation are open to criticism (see below), the Court cannot find its conclusions to be so faulty as to reject them altogether as "defying logic" or improbable (compare Beker v. Turkey , no. 27866/03, §§51-52, 24 March 2009 ).

47 .     In those circumstances the Court will examine whether the authorities knew or should have known of the existence of a real and immediate risk that Pte Styazhkov would commit suicide and, if so, whether they did all that could reasonably have been expected of them to avoid that risk from materialising.

48 .     The present case should be distinguished from cases where conscripts who had committed suicide had been suffering from mental troubles or had not been psychologically stable or had had a history of suicide in their family (see Malik Babayev , cited above, §   71 with further references). In the present case there is no evidence that Pte Styzhkov had suffered from mental troubles before his having been drafted into the army or thereafter. The applicant did not claim otherwise. The post-mortem psychological report also confirmed it.

49 .     Furthermore, there are no indications that Pte Styzhkov was subjected to hazing practices before his suicide (compare Perevedentsevy v.   Russia , no. 39583/05, § 115, 24 April 2014). The present case thus should be distinguished from situations where people had committed suicide as a result of a series of events which took place for such a period of time which could give to the authorities an opportunity to realise that there was a real and immediate risk of suicide (see Abdullah Yılmaz v.   Turkey , no. 21899/02, §§   7-10, 17 June 2008).

50 .     The present case is similar to cases where there was a very short lapse of time between acts of violence committed against conscripts and the time at which those conscripts committed suicide; in those cases the conscripts ' supervisors had had no possibility to foresee the existence of a real and immediate risk of suicide (see Malik Babayev , cited above, § 73, with further references).

51 .     In that connection the Court reiterates that in this type of cases the unpredictability of human conduct must not be ignored and the State ' s positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities (see ibid, § 74).

52 .     In the present case there were no indications that Pte Styazhkov was suicidal or that the domestic authorities knew or should have known at the time of the existence of a real and immediate risk that the applicant ' s son would commit a suicide. Therefore, the Court finds that the present case does not disclose any appearance of a failure on behalf of the respondent State to comply with its positive obligation to protect the right to life of the applicant ' s son as required by Article 2 of the Convention.

53 .     Accordingly, there has been no violation of the substantive limb of Article 2 of the Convention.

(ii)   Procedural aspect of Article 2 of the Convention

54 .     The investigation into the death of Pte Styazhkov was initiated promptly, within several hours after the incident, on 8   August 2002. A military prosecutor performed an inspection of the body and of the scene of the incident. He requested a forensic examination of the body and began questionings of people concerned. Within the next days he completed questioning the military personnel and requested further forensic examinations. Based on the results of those actions, three months later, in October 2002 the prosecution brought charges against Pte S. and sent the case for trial. The court proceedings eventually ended on 9   October 2003. Thus, the investigation lasted about one year and two months, which appears sufficiently prompt.

55 .     The Court further observes that the investigation was carried out by military prosecutors which were not connected hierarchically or institutionally to Pte Styazhkov ' s military unit (see Perevedentsevy , cited above, §   107). Although the initial examination of the body of the deceased was performed by the military prosecutor with the assistance of Pte   Styazhkov ' s unit ' s doctor and in presence of two attesting witnesses from the same unit, their involvement in the examination appears minimal. Furthermore, no personnel from Pte Styazhkov ' s unit participated in the subsequent stages of the investigation (compare Sergey Shevchenko , cited above, § 70). Therefore, the Court accepts that the investigation into the applicant ' s son ' s death was performed by an independent authority.

56 .     As the applicant was granted victim status on 14   September 2002, that is, about a month since the start of the investigation, and subsequently she had access to the case materials, the Court considers that the authorities complied with the requirement of public scrutiny (see Marina Alekseyeva v.   Russia , no. 22490/05, § 130, 19 December 2013 ).

57 .     The Court however notes that the criminal investigation was opened into incitement to suicide (see paragraph 10 above). Therefore, from the start of the investigation the authorities did not consider other possible versions of the events (see Sergey Shevchenko , cited above § 68; Mosendz v.   Ukraine , no. 52013/08 , § 98, 17 January 2013; and compare Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05 , § 206, 14 April 2015, and Marina Alekseyeva , cited above, § 131). The subsequent investigation materials also do not contain any indications that the authorities later examined any alternatives to the suicide version. No reconstruction of the events was attempted (compare Ramsahai , cited above, § 329, and Serguey Schevchenko , cited above, § 72); no gun residue or fingertips ' examination was performed (compare Ramsahai , cited above, § 326, and Serguey Schevchenko , cited above, § 73); twenty one cartridges found in the proximity of Pte Styzhkov ' s body inexplicably had not been provided to the ballistics expert.

58 .     Furthermore, although the prosecution learnt about Sgt   K. and Pte   S. ' s involvement in the events leading to Styazhkov ' s death, the authorities refused just two days after the incident to bring criminal proceedings against the two men on account of their beatings of Styazhkov. While Pte S. was eventually charged with the offences of breach of rules on relationship between servicemen of equal rank and incitement to suicide, at no further instance did the investigating or judicial authorities return to the role of Sgt K. in the events. The Court however sees force in the applicant ' s argument that the authorities should have thoroughly investigated Sgt K. ' s involvement in the incident. The latter was Pte   Styazhkov ' s superior; when he and Pte S. discovered Pte Styazhkov sleeping, it was Sgt K. who had hit him first, then ordered him to do press-ups and crawl along the ground in his bullet-proof vest (see paragraphs 14 - 15 above). Sgt K. then watched Pte   S. continue beating Pte Styazhkov without stopping him. The Court considers that in those circumstances Sgt   K. ' s own actions and his tacit approval of Pte S. ' s actions should have been the subject of thorough examination by the investigating authorities. However, just two days after the applicant ' s son ' s death Sgt K. was excluded from the scope of the criminal investigation which was further on limited to actions of Pte S. only.

59 .     As for the prosecution of Pte S. the case against him on account of incitement to suicide and breach of rules of relationships between servicemen of equal rank was sent for trial in October 2002 (see paragraph 23 above). In December 2002 the case was transferred to another military court (see paragraph 25 above). According to the applicant, she was summoned to a number of court hearings scheduled for 23   January 2003, 10   and 25   February 2003 and 5 March 2003, but due to absence of the other parties the court hearings did not take place (see paragraph 26 above). The Government did not contest the applicant ' s account of the court proceedings. On 6   June 2003 the State Duma passed an act of amnesty which provided, among others, for discontinuation of criminal proceedings against servicemen who had committed criminal offences during the armed conflict and/or anti-terrorist operations in the territory of the former Autonomous Soviet Socialist Republic of Chechnya-Ingushetia if they had not yet been examined by the courts (see paragraph 27 above). On 12   August 2003 the military court discontinued the criminal proceedings against Pte S. as the case had not been yet examined by that moment (see paragraph 28 above).

60 .     The Court has not been provided with any explanation as to how it had been possible for the accused S. not to attend his criminal trial without being placed onto the search list and for the prosecution repeatedly not to appear in the criminal court proceedings initiated on their own decision to indict a person. The above circumstances might create an impression that the State authorities were deliberately avoiding the beginning of a criminal trial until adoption of the Amnesty Act which would absolve from criminal liability perpetrators among servicemen having taken part in operations in Chechnya. In any event the Court has no doubts that the State authorities did not display due diligence to have Pte S. ' s criminal case examined. Such conduct of the State authorities did not only affect the investigation of Pte   Styazhkov ' s death, but might also have a negative impact on public confidence in the adherence of the State authorities to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see Mosendz , cited above, §   107).

61 .     Finally, the Court observes that the criminal case against Pte S. was discontinued based on an amnesty act. The Court reiterates that where a State agent has been charged with crimes involving ill-treatment or with life-endangering crimes, the granting of an amnesty or pardon should not be permissible (see, mutatis mutandis , Abdülsamet Yaman v. Turkey , no.   32446/96, § 55, 2 November 2004; Okkalı v. Turkey , no. 52067/99, §   76, ECHR 2006 - XII (extracts); and Ali and Ayşe Duran v. Turkey , no.   42942/02, § 69, 8 April 2008).

62 .     Based on the above the Court concludes that the domestic authorities failed to carry out an adequate and effective investigation into the circumstances surrounding the death of the applicant ' s son.

63 .     There has accordingly been a violation of Article   2 of the Convention under its procedural limb. In the light of this finding, the Court considers that it is not necessary to examine whether there has also been a violation of the procedural aspect of Article 3 and a violation of Article 13.

(iii)   Substantive aspect of Article 3

64 .     The domestic investigating and judicial authorities established that in breach of rules on relationships between servicemen of equal rank Pte S. had inflicted at least five blows with a rifle to Styazhkov ' s chest, a blow with his fist to the face and then at least twenty blows with a rifle to his legs. According to their findings, those actions caused Styazhkov suffering and physical pain and resulted in Pte Styazhkov ' s suicide (see paragraph 28 above).

65 .     In their observations the Government acknowledged that Pte S. ' s ill - treatment of Pte Styazhkov constituted a violation of Article 3 of the Convention.

66 .     The Court finds no reasons to depart from the above findings. It reiterates that the State has a duty to ensure that a person performs military service in conditions which are compatible with respect for his or her human dignity, that the procedures and methods of military training do not subject a person to distress or suffering of an intensity exceeding the unavoidable level of hardship inherent in military discipline (see, mutatis mutandis , Kılınç and Others v. Turkey , no. 40145/98, § 41, 7 June 2005). Torture or degrading treatment or punishment are absolutely prohibited irrespective of the victim ' s conduct (see Raninen v. Finland , cited above, § 55, Reports 1997 - VIII). The applicant ' s son was punished for having fallen asleep while on sentry duty by numerous blows with fists and a rifle in the chest, face and legs area. That punishment caused him intense physical pain and humiliation, it went beyond the threshold of a minimum level of severity and exceeded the level of unavoidable hardship of military discipline.

67 .     Having regard to the above, the Court finds that the applicant ' s son was subjected to ill-treatment in breach of Article 3 of the Convention. Therefore there has been a violation of the substantive aspect of Article 3 of the Convention under its substantive limb.

 

2. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

68 .     The applicant complained of lack of access to court because the criminal proceedings against Pte S. had been terminated without her notification and, thus, in her absence, and her civil claims had been left without examination. She relied on Article 6 of the Convention which reads where relevant as follows:

"In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ..."

69 .     The Court notes that when on 12 August 2003 the military court had discontinued the criminal proceedings against S., it had left the applicant ' s civil claims without examination and had invited her, instead, to re-apply to a civil court (see paragraph 29 above). Given that the military court did not determine the applicant ' s civil rights, the complaint in respect of the applicant ' s lack of notification and absence from the court hearing where S.s criminal case was discontinued is incompatible ratione materiae with Article 6 of the Convention. As for the applicant ' s civil claims, she did not attempt to use the suggested remedy of a separate civil action, therefore, it cannot be said that the applicant was deprived of access to court.

70 .     Therefore, the complaint under Article 6 of the Convention is manifestly ill-founded and must be rejected in accordance with Article   35   §§ 3 and 4 of the Convention.

3. APPLICATION OF ARTICLE   41 OF THE CONVENTION

71 .     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."

1. Damage

72 .     The applicant claimed 40,000 euros (EUR) in respect of non - pecuniary damage.

73 .     The Government submitted that the applicant ' s claims in respect of non-pecuniary damage should be rejected as her rights had not been violated.

74 .     The Court awards the applicant EUR 33,800 in respect of non - pecuniary damage.

2. Costs and expenses

75 .     The applicant also claimed EUR 2,620.50 for the costs and expenses incurred before the Court.

76 .     The Government disagreed that the claimed amounts had been necessary and reasonable.

77 .     According to the Court ' s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,620.50 covering costs under all heads for the proceedings before the Court, to be paid to the applicant ' s representative ' s account.

3. Default interest

78 .     The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints concerning the applicant ' s son ' s ill-treatment and death and lack of effective investigation thereof admissible and the remainder of the application inadmissible;

2. Holds that there has been no violation of Article 2 of the Convention under its substantive limb;
3. Holds that there has been a violation of Article 2 of the Convention under its procedural limb;
4. Holds that there is no need to examine the complaint about lack of effective investigation under Articles 3 and 13 of the Convention;
5. Holds that there has been a violation of Article 3 of the Convention under its substantive limb;
6. Holds

(a)   that the respondent State is to pay the applicant , within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)         EUR 33,800 (thirty three thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)       EUR 2,620.50 (two thousand six hundred and twenty euros fifty cents), plus any tax that may be chargeable to the applicant , in respect of costs and expenses;

(b)   that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

7. Dismisses the remainder of the applicant ' s claim for just satisfaction.

Done in English, and notified in writing on 14 January 2020 , pursuant to Rule   77   §§   2 and 3 of the Rules of Court.

  Stephen Phillips Georgios A. Serghides
Registrar President