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FIRST
SECTION
CASE OF CHEMBER v. RUSSIA
(Application
no. 7188/03)
JUDGMENT
STRASBOURG
3
July 2008
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 Chember v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 12 June 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 7188/03) 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 Yevgeniy Vitalyevich
Chember (“the applicant”), on 3 February 2003.
- The
applicant, who had been granted legal aid, was represented before the
Court by Ms O. Mikhaylova, a lawyer practising in Moscow. The Russian
Government (“the Government”) were represented by
Mr P. Laptev, Representative of the Russian Federation at
the European Court of Human Rights.
- The
applicant complained that he had been subjected to inhuman and
degrading treatment and punishment during his military service.
- On
14 January 2005 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
- The
Government objected to the joint examination of the admissibility and
merits of the application. Having examined the Government's
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1982 and lives in Shakhty in the Rostov Region.
A. The applicant's military service
- On
19 and 23 December 2000 the applicant was examined by two medical
commissions and found to be in good health and fully fit for military
service.
- On
the basis of the medical reports, the decision was made to call the
applicant up for two years of mandatory military service in the
Ministry of Internal Affairs forces.
- The
applicant was assigned to serve in military unit no. 5464 in
Kislovodsk. In the unit he was allegedly harassed and ill-treated by
senior conscripts and the unit sergeant on account of his Moldovan
ethnic origin.
- According
to the applicant, in late January 2001 he attended a drivers'
training course. In the car park the commander told the applicant and
three other conscripts to take the back axle of a ZIL lorry to
another place. The applicant injured his spine and later on the same
day he was also severely beaten and kicked by senior conscripts for
failing to bring the axle close enough to the lorry. On the course
the following morning he asked for medical assistance, but the
commander refused his request. The applicant did not complain about
these events to a prosecutor or any other official.
- On
8 February 2001 the applicant was transferred to military unit
no. 6794 in Astrakhan (later renumbered as no. 3025). According
to the applicant, a medical officer noted his complaint of pains in
his knees, but did not prescribe any treatment. It subsequently
transpired during an inquiry that the applicant had complained about
recurrent pains in his knees to his superior, Lieutenant D., who had
exempted him from physical exercise (see paragraph 20 below).
- In March 2001 Junior Sergeant Ch., the platoon
commander, made the applicant and other servicemen do 350 knee bends
outdoors as punishment for their failure to scrub the barracks to a
spotless condition. Lieutenant D. was present but did not contradict
the order. After several hundred knee bends the applicant collapsed
and other soldiers took him by the armpits and dragged him into the
medical unit.
- Between
6 and 26 March 2001 the applicant received emergency treatment in
military unit no. 52218, and then in unit no. 3057 until 17 April
2001. He could not stand on his own and crawled out of bed propping
himself up on the bedposts.
- Between
17 April and 23 May 2001 the applicant was treated in the
neurosurgery clinic of the Rostov-on-Don State Medical University. At
discharge he was diagnosed with a “closed injury of the spine
combined with an impairment of blood circulation at the level of the
lower thoracic part of the spinal cord” and found unfit for
work.
- On
5 June 2001 the medical commission of military unit no. 3057 examined
the applicant at the request of the commander of unit no. 6794 and
diagnosed him with “consequences of an acute interruption to
the blood flow to the spinal cord in the form of
cicatrical-commissural epiduritis, arachnoiditis with a disturbance
of the flow of cerebrospinal fluid and minor impairment of
sensitivity in the lower extremities”. It also established that
the condition had been “acquired during military service”
and discharged the applicant as “partially fit for military
service”.
- On
28 June 2001 the applicant was discharged on account of his
disability.
B. Criminal investigation
- On
an unspecified date the applicant's mother complained to the military
prosecutor of Rostov-on-Don of an abuse of power committed by
Lieutenant D. and Junior Sergeant Ch.
- On
10 May 2001 her complaint was forwarded to the military prosecutor of
the Astrakhan garrison who in his turn sent it on 21 May 2001 to the
military prosecutor of the Caspian Fleet.
- In their observations on the admissibility and merits
of the case, the Government enclosed copies of statements by
Lieutenant D. and Junior Sergeant Ch., as well as by Privates A. L.,
A. Sh. and V. P., who had started their service on 1 February 2001.
- On
22 May 2001 Lieutenant D. stated as follows:
“In February 2001 Private Chember was transferred
to our unit... He was assigned to serve in my sub-unit, that is in
the first platoon of the seventh company. Since his transfer into our
unit he has started complaining about recurrent pains in his knees.
On that ground I exempted him from physical exercise; he stayed
within the premises of the company and did not go anywhere. Some two
weeks later Private Chember was sent for treatment to the sanitary
unit because of acute pains in his knees; I cannot tell why it
happened. Some time later he was transferred to a hospital in another
town... I have never applied any unlawful methods to Private
Chember.”
- On
the same date Junior Sergeant Ch. testified as follows:
“I have known Private Chember since February 2001;
he served in the seventh company of military unit 6794, in which I
acted as the section commander. I point out that Chember often went
to the medical unit. I do not know what he complained about. Every
time I acted as the officer-on-duty in the platoon, Chember was
usually for treatment in the medical unit. I think he complained
about pains in his legs. I did not know Chember very well because he
was not from my platoon...”
- In
their similarly worded statements, Privates A. L., A. Sh. and V. P.
indicated that the applicant had complained about his “weak
legs” since his arrival at military unit 6794, that for that
reason he had been exempted from physical exercise and squad drill,
and that he had often been treated in the medical unit for pains in
his legs.
- On 31 May 2001 Captain S., a senior investigator with
the military prosecutor's office of the Caspian Fleet, issued a
decision not to initiate criminal proceedings. The reasoning read as
follows, in full:
“The inquiry established that the fact of abuse of
power by Lieutenant D. and Junior Sergeant Ch. had not actually taken
place in reality.
It follows from the statement by Lieutenant D. that
Private Chember serves under his command. Neither he, nor Junior
Sergeant Ch. ever abused power or used violence against Private
Chember or any other military personnel of unit 6794.
It follows from the statement by Junior Sergeant Ch.
that neither he nor Lieutenant D. ever abused power or used violence
against Private Chember or any other military personnel of unit 6794.
All the servicemen of the 7th company of military unit
6794 – where Chember serves – have been questioned. They
stated that no one had harassed Private Chember, and that Junior
Sergeant Ch. or Lieutenant D. had never abused power against him or
any other military personnel of unit 6794.
Thus, the inquiry has established that Junior Sergeant
Ch. and Lieutenant D. did not abuse power against the private Chember
or any other military personnel of unit 6794, and accordingly no
criminal case may be instituted against them because there was no
criminal offence.”
The
decision indicated that an appeal against it lay to a higher
prosecutor or to a court.
- On
30 September 2002 the applicant's mother complained to a higher
prosecutor. She wrote, in particular, that her son had never had
pains in his knees. She also pointed out that the investigator had
not heard the soldiers P., S., C. and Sh., who had been eyewitnesses
to the ill-treatment.
- On
8 October 2002 Colonel M., the military prosecutor of the Caspian
Fleet, replied that her complaint could not be examined because the
materials of the inquiry had been forwarded, on 8 August 2002,
to the Shakhty Town Court. He indicated that the complaint would be
considered upon the return of the materials. The applicant did not
receive any further information concerning that complaint.
C. Civil proceedings
- On
17 March 2002 the applicant lodged a civil action against military
units nos. 3025 and 5464 and the North Caucasian Command of the
Ministry of Internal Affairs forces for compensation for
non-pecuniary damage. He submitted that the injury he had received
during the military service caused him physical pain, restrained
day-to-day activities, impaired his career and life plans and brought
feelings of frustration and injustice.
- The
applicant and his counsel asked the court to appoint a forensic
medical examination with a view to determining the origin and nature
of his injuries.
- On
9 April 2003 the Shakhty Town Court of the Rostov-on-Don Region
refused their request by an interim decision:
“Having heard the parties and studied the case
materials, the court finds that the request is unsubstantiated...
because the period when the injury was received is stated in the
medical record and that is the period of military service. The
establishment of the origin and nature of existing diseases will not
help to find those responsible or [to elucidate] the circumstances.
The case file contains the decision not to initiate criminal
proceedings against Sergeant Ch. and Lieutenant D., dated 31 May
2001.”
- On
the same day the Town Court delivered judgment, by which the
applicant's claim was dismissed. The Town Court examined medical
evidence produced by the applicant and interviewed his fellow
serviceman P. who confirmed that Junior Sergeant Ch. had forced the
applicant and other conscripts to do 350 or more knee bends and that
the applicant had collapsed during that exercise. It found as
follows:
“Assessing the collected evidence as a whole, the
court finds that the claim is unsubstantiated... because the
[applicant] did not show that the damage to his health had been
caused by servicemen of the [Ministry of Internal Affairs]; according
to his own statements, he fell ill because of excessive (in his
opinion) physical activity (physical exercises, carrying the axle of
a ZIL lorry in his hands) and because of ill-treatment by senior
conscripts and by Sergeant Ch. However, the case materials contain
the decision not to initiate criminal proceedings against Sergeant
Ch. and Lieutenant D., dated 31 May 2001... because there was no
indication of a criminal offence. Under the current laws, one of the
mandatory conditions for tort liability for non-pecuniary damage is
the fault of the tortfeasor...”
- The
applicant appealed against the interim decision and judgment of
9 April 2003.
- On
25 June 2003 the Rostov Regional Court dismissed his appeal:
“The [first-instance] court dismissed the claim
because it established that the defendants' liability for causing
damage to the [applicant's] health had not been proven. The
[regional] court finds this conclusion correct. On 31 May 2001 an
investigator... refused to initiate criminal proceedings... The
causal link between the defendants' actions and the [applicant's]
disability is not established. Experts may not establish the causal
link between the defendants' actions and consequences thereof, only a
court is competent to do it”.
D. Pension claims
- Following
the applicant's discharge, on 29 August 2001 he was diagnosed with a
second-category disability and became entitled to a civilian
disability pension.
- The
applicant unsuccessfully attempted to claim a military pension. On 21
May, 11 June, 29 July and 25 December 2002 his mother received
negative responses from the Central Military Medical Commission of
the Ministry of Internal Affairs. The claims were rejected because he
had not produced documents showing that he had injured his spine
during military service. According to these replies, the report of 5
June 2001 only established that the condition had been diagnosed
during the military service and not that it had been acquired during
the military service.
E. Experts' report submitted by the Government
- In
their observations on the admissibility and merits of the case, the
Government submitted a report produced by two medical experts (one
military and one civilian) on 10 March 2005. The report had been
commissioned by the assistant to the Chief Military Prosecutor on 9
March 2005 with a view to determining the nature of the applicant's
disability, its causes and origin. The experts made their findings on
the basis of the criminal case file and the applicant's medical
records of 2001. In particular, they found as follows:
“It transpires from the available medical
documents that Mr Chember's conditions were chronic. Having regard to
Mr Chember's young age, his medical history (pains in the legs from
the age of ten), and chronic development of the condition, the
osteochondrosis of the lumbar spine was contracted in childhood as a
result of a metabolic disturbance (dystrophy)... The existing
inflammatory processes in the spine (epiduritis and arachnoiditis)
could have appeared... as a complication of an infectious disease
that Mr Chember may have contracted in childhood, such as influenza,
tonsillitis, pharyngitis, and so on. These spinal conditions were
also of a chronic and continued nature... which is confirmed by the
presence of cicatrical-commissural epiduritis and commissural
arachnoiditis, and complaints of pains in the legs from the beginning
of military service and before conscription.
No objective confirmation that these conditions had been
caused by trauma could be found in the available medical records or
case file materials.
Mr Chember's diseases were chronic and continuing and
could have been caused by hereditary factors (according to the
materials, his uncle suffered from a similar condition)...”
II. RELEVANT DOMESTIC LAW
A. Civil Code
- The
general provisions on liability for damage read as follows:
Article 1064. General grounds giving rise to
liability for damage
“1. Damage inflicted on the person or
property of an individual... shall be reimbursed in full by the
person who inflicted the damage ...
2. The person who inflicted the damage shall
be liable for it unless he proves that the damage was inflicted
through no fault of his own ...”
B. The RSFSR Code of Criminal Procedure (in force until
1 July 2002)
- Complaints
about the acts or decisions of a prosecutor may be lodged with a
higher prosecutor (Article 220). Within three days of receipt of a
complaint the prosecutor must examine it and give a response to the
complainant (Article 219).
C. The Russian Federation Code of Criminal Procedure
(in force after 1 July 2002)
- If
criminal proceedings are discontinued at the stage of the
investigation, a victim or a civil party may lodge a separate civil
claim unless the proceedings were discontinued on the ground that (a)
the alleged offence had not been committed (otsutstvie sobytiya
prestupleniya) or (b) the suspect had not been involved in its
commission (Article 213 § 4 and Articles 24 § 1 (1) and 27
§ 1 (1)).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that he had been subjected to inhuman and
degrading treatment and punishment while in military service in
breach 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. Admissibility
- The
Court observes that the ill-treatment in military unit no. 5464
in Kislovodsk allegedly took place in January 2001 and that the
applicant did not ask for any inquiry to be carried out into these
events at a later date. Since the application was lodged on 3
February 2003, the complaint concerning these events has been
introduced out of time and must be rejected in accordance with
Article 35 §§ 1 and 4 of the Convention.
- The Court considers that the complaint concerning the
alleged ill-treatment in military unit no. 6794 (3025) in
Astrakhan is not manifestly ill-founded within the meaning of Article
35 § 3 of the Convention. It further finds that it is not
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. Alleged ill-treatment during military service
(a) Submissions by the parties
- The
Government denied that the applicant had been subjected to any form
of ill-treatment in military unit no. 6794. Referring to the experts'
report of 10 March 2005 (see paragraph 34 above), they maintained
that the applicant's disability had been caused by a chronic
condition which had existed before the conscription but had been
diagnosed for the first time during military service. As regards the
text of the certificate of 5 June 2001, the Government clarified that
the description of a condition as “acquired during military
service” also included situations, such as the applicant's,
where a condition existed before the conscription but its aggravation
or complication during military service rendered the serviceman unfit
for further service. The applicant had not told the medical officers
on the draft commission about his knee condition.
- The
applicant submitted that in the specific context of military service
the Government had both positive and negative obligations under
Article 3 of the Convention. The positive obligation consisted in
ascertaining that individuals drafted for military service are
sufficiently healthy and fit for such service. The superficial
medical examination carried out by the drafting commission in his
case had proved to be insufficient to diagnose the condition which
had led to his discharge and disability. Furthermore, as regards the
negative obligation under Article 3, the applicant pointed out that
military servicemen were hierarchically subordinate to their
commanders and under the full control of the State authorities. His
superiors had forced him to do physical exercise for which there was
no military requirement, namely 350 knee bends. That excessive
exercise had brought about an aggravation of his condition and
disability. His account of the facts had been corroborated by the
testimony of his fellow serviceman P. before the domestic courts.
(b) Establishment of the facts
- The
Court observes that the facts relating to the applicant's service in
military unit no. 6794 in Astrakhan are not in dispute between the
parties.
- The
applicant arrived at that military unit in February 2001. It
transpires from his own submissions, as well as from the statements
by his commanders and fellow servicemen, that he suffered from pains
in his knees. On account of his knee condition, Lieutenant D., his
immediate commander, exempted him from physical exercise and squad
drill (see the written depositions by Lieutenant D. and other
soldiers in paragraphs 20 and 22 above). It also appears that on
several occasions the applicant was treated for the knee condition in
the medical unit.
- In
March 2001 Junior Sergeant Ch., in the presence of Lieutenant D.,
ordered the applicant, among others, to do 350 knee bends as
punishment for a failure to clean the barracks. The applicant
collapsed during the exercise and was taken to a hospital for
emergency treatment. Private P. who had been ordered to do the same,
confirmed these events before the Town Court (see paragraph 29
above).
- Following
treatment in a civilian hospital, the applicant was diagnosed with a
closed injury of the spine, discharged from the military service on
medical grounds and assigned a second-degree disability.
(c) Assessment of the severity of
ill-treatment
- The
Court's task is to establish 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, Series A no. 25, p. 65, § 162).
- The
Court has consistently stressed that the suffering and humiliation
involved must in any event go beyond that inevitable element of
suffering or humiliation connected with a given form of legitimate
treatment or punishment (see Kudła v. Poland [GC], no.
30210/96, §§ 92-94, ECHR 2000-XI). Mandatory military
service often involves such an element, as do measures depriving a
person of his liberty. However, many acts that would constitute
degrading or inhuman treatment in respect of prisoners may not reach
the threshold of ill-treatment when they occur in the armed forces,
provided that they contribute to the specific mission of the armed
forces in that they form part of, for example, training for
battlefield conditions (see, mutatis mutandis, Engel and
Others v. the Netherlands, judgment of 8 June 1976, Series A
no. 22, § 57).
- Nevertheless,
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).
- According
to the Court's constant 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, Denmark, Norway, Sweden and the
Netherlands v. Greece (the “Greek case”),
applications nos. 3321/67, 3322/67, 3323/67 and 3344/67,
Commission's report of 5 November 1969, Yearbook XII, and also
Kudła, cited above, § 92). 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 the Greek
case, cited above, and also, Peers v. Greece, no.
28524/95, § 74, ECHR 2001-III).
- Even
though challenging physical exercise may be part and parcel of
military discipline, the Court reiterates that, to remain compatible
with Article 3 of the Convention, it should not go beyond the level
above which it would put in danger the health and well-being of
conscripts or undermine their human dignity. In the present case the
applicant – who was known to have painful knees – was
ordered to do 350 knee bends which appears to be a particularly
demanding workout. However, the Court sees no need to determine in
abstracto whether that particular order was compatible with the
requirements of Article 3, for it will have regard to the following
elements of the case which it considers crucial for its assessment of
compliance with Article 3.
- The
applicant was ordered to do knee bends as punishment for
insufficiently thorough cleaning of the barracks. The order emanated
from his acting commander Junior Sergeant Ch. It was tacitly endorsed
by the higher commander Lieutenant D. who was present at the scene
but did not contradict the order. It follows that the treatment
complained about was applied on the applicant deliberately.
- It
is obvious from the statements collected in the framework of the
domestic inquiry that both Lieutenant D. and Junior Sergeant Ch. were
well aware of the applicant's knee-related health problems from the
moment of his arrival at the military base (see paragraphs 20 and 21
above). As noted above, Lieutenant D. had previously granted the
applicant exemption on health grounds from physical exercise and
squad drill. Notwithstanding their awareness of the applicant's
specific health problems, the commanders forced the applicant to do
precisely the kind of exercise that put great strain on his knees and
spine. In these circumstances, the Court cannot but find that the
treatment was both deliberate and calculated to cause the applicant
physical suffering. The severity of the punishment cannot obviously
be accounted for by any requirements of military service or
discipline or said to have contributed to the specific mission of the
armed forces (compare Engel, cited above, § 57).
- As
regards the consequences of the punishment at issue, the Court notes
that the applicant collapsed on the spot and lost control of his
legs. Despite the emergency treatment he received first in a military
and then in a civilian hospital, the injury resulted in long-term
damage to his health. The applicant was discharged from the military
service and assigned the second category of disability.
- Assessing
the above elements as a whole, the Court finds that in the present
case the applicant was subjected to forced physical exercise to the
point of physical collapse. This punishment was applied deliberately
by his commanders, in full knowledge of the applicant's specific
health problems and without there being any military necessity which
might have called for that course of action. The Court is of the
opinion that in these circumstances that punishment caused the
applicant intense physical suffering and went beyond the threshold of
a minimum level of severity.
- Having
regard to the above considerations, the Court finds that the
applicant was subjected to inhuman punishment in breach of Article 3
of the Convention. There has therefore been a violation of that
provision under its substantive limb.
2. Alleged inadequacy of the investigation
- The
Government submitted that the investigation into the applicant's
complaints had been effective. Although the military prosecutor of
the Caspian Fleet had not given a response to the applicant's
mother's complaint, such a response was no longer needed after the
Shakhty Town Court had issued its judgment on 9 April 2003.
- The
applicant pointed out that no criminal case had been instituted on
his complaint. The statements obtained from servicemen had therefore
no evidential value because the servicemen had not been formally
heard as witnesses or warned about liability for perjury. The
investigator had not examined the applicant, his fellow serviceman P.
or other soldiers who had been eyewitnesses to the ill-treatment. His
mother had never received a response to her complaint to the military
prosecutor of the Caspian Fleet.
- In
the present case the Court has found above that the applicant
collapsed following strenuous exercise ordered by his immediate
superior Sergeant Ch. with the tacit approval of Lieutenant D. as
punishment for his failure to clean the barracks. Irrespective of
whether that sudden deterioration of the applicant's health was due
to a trauma or a complication of a previously undiagnosed condition,
the gravity of the injury gave rise to an “arguable claim”
of ill-treatment.
- 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 into 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, Mikheyev v. Russia,
no. 77617/01, § 107 et seq., 26 January 2006, and
Assenov and Others v. Bulgaria, judgment of 28 October 1998,
Reports 1998 VIII, § 102 et seq.)
-
The Court notes at the outset that the investigation cannot be
described as sufficiently thorough. The investigator did not
commission a medical examination of the applicant or, for that
matter, refer to any medical documents he could have obtained. The
only named witnesses mentioned in the investigator's decision were
Lieutenant D. and Junior Sergeant Ch., that is the applicant's
commanders against whom his complaint had been directed. It is
impossible to establish the relevance of statements of other
witnesses who had not been identified in the decision by their names
or rank. Even their number is uncertain: the Government submitted
three statements by other servicemen, whereas the investigator's
decision referred to “all the servicemen of the seventh
company”, that is a hundred individuals. Furthermore, it
transpires that the investigator had not questioned those soldiers
who could have been eyewitnesses to the alleged ill-treatment, such
as the applicant's fellow serviceman P.
- The
Court further finds that the applicant's right to participate
effectively in the investigation was not secured. The investigator
did not hear him in person; the applicant's version of events was not
even mentioned in his decision. Since no criminal proceedings were
instituted, the applicant was not able to claim formally the status
of a victim or exercise the procedural rights attaching to that
status.
- Finally,
the Court considers that the supervising prosecutor's failure to give
a response on the substance of the complaint addressed to him was a
breach of the rules of criminal procedure which eroded the adequacy
of the investigation as a whole. Although such an appeal was not an
“effective remedy” within the meaning of Article 35 of
the Convention because it did not give the person employing it a
personal right to the exercise by the State of its supervisory powers
(see, for example, Belevitskiy v. Russia, no. 72967/01,
§ 59, 1 March 2007), in the Russian legal system it
was an important procedural guarantee allowing the supervising
prosecutor to redress the shortcomings in the initial inquiry carried
out by subordinate investigators. The person lodging such an appeal
could not take part in its examination but he was nevertheless
entitled to obtain information on the decision taken on the appeal
(see paragraph 36 above). The Government did not deny that the
military prosecutor Colonel M. had not examined the merits of the
applicant's mother's complaint relating to the decision not to
institute criminal proceedings. They claimed that the response had no
longer been necessary or required, following the Town Court's
judgment in the proceedings for damages. To the Court, the
fallaciousness of that argument is evident. First, the Town Court
accepted the findings contained in the investigator's decision
without any independent review of the matter, and later the
supervising prosecutor declined to review the decision because it had
already been endorsed by the Town Court. The applicant thus found
himself in a vicious circle of shifted responsibility where no
domestic authority was capable of reviewing and remedying the
shortcomings of the inquiry carried out by the investigator Captain
S.
- Having
regard to the above failings of the Russian authorities, the Court
finds that the inquiry carried out into the applicant's allegations
of ill-treatment was not thorough, adequate or efficient. There has
accordingly been a violation of Article 3 of the Convention under its
procedural limb.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
Court further decided to examine proprio motu whether in the
circumstances of the case the applicant had an effective remedy in
civil law remedy for his complaint of ill-treatment during military
service, as required by Article 13 of the Convention, which reads as
follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
- The Court considers that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
- The
Government claimed that there had been no violation of the
applicant's rights under Article 13 of the Convention.
- The
applicant submitted that in the Russian legal system there exists the
possibility of seeking institution of criminal proceedings or lodging
a civil claim for damages. He had made use of the latter remedy,
which had proved to be ineffective because he had been required to
prove the fault of State officials. Such a burden of proof is
impossible to satisfy in the absence of an effective criminal
investigation.
- The
Court reiterates that Article 13 of the Convention guarantees the
availability, at the national level, of a remedy to enforce the
substance of Convention rights and freedoms in whatever form they
might happen to be secured in the domestic legal order. The effect of
Article 13 is thus to require the provision of a domestic remedy to
deal with the substance of an “arguable complaint” under
the Convention and to grant appropriate relief, although Contracting
States are afforded some discretion as to the manner in which they
conform to their Convention obligations under this provision. The
scope of the obligation under Article 13 varies depending on the
nature of the applicant's complaint under the Convention.
Nevertheless, the remedy required by Article 13 must be “effective”
in practice as well as in law; in particular, its exercise must not
be unjustifiably hindered by the acts or omissions of the authorities
of the respondent State. Thus, in cases of suspicious death or
ill-treatment, given the fundamental importance of the rights
protected by Articles 2 and 3, Article 13 requires, in addition to
the payment of compensation where appropriate, a thorough and
effective investigation capable of leading to the identification and
punishment of those responsible for the acts of ill-treatment (see
Cobzaru v. Romania, no. 48254/99, §§ 80-82,
26 July 2007; Anguelova v. Bulgaria, no. 38361/97, §§
161-162, ECHR 2002 IV; and Süheyla Aydın v. Turkey,
no. 25660/94, § 208, 24 May 2005).
- The
Court has already found that the State authorities were responsible
for the inhuman punishment inflicted on the applicant by his
commanders in March 2001. The applicant therefore had an “arguable
claim” for the purposes of Article 13 and the authorities
were under an obligation to carry out an effective investigation into
his allegations against the military officials. For the reasons set
out above no effective criminal investigation can be considered to
have been carried out in accordance with Article 13, the requirements
of which are broader than the obligation to investigate imposed by
Article 3 (see Cobzaru, cited above, § 83, and, mutatis
mutandis, Buldan v. Turkey, no. 28298/95, § 105,
20 April 2004, and Tanrıkulu v. Turkey, no.
23763/94, § 119, ECHR 1999-IV). Consequently, any other
remedy available to the applicant, including a claim for damages, had
limited chances of success and could be considered as theoretical and
illusory, and not capable of affording redress to the applicant.
While the civil courts in theory have the capacity to make an
independent assessment of fact, in practice the weight attached to a
preceding criminal inquiry is so important that even the most
convincing evidence to the contrary furnished by a plaintiff would be
discarded and such a remedy would prove to be only theoretical and
illusory (see Menesheva v. Russia, no. 59261/00, §
77, 9 March 2006, and Corsacov v. Moldova, no.
18944/02, § 82, 4 April 2006). This is illustrated by the fact
that the Town and Regional Courts in the instant case dismissed the
applicant's claim for damages by reference to the lack of any finding
of guilt in the investigator's decision (see paragraphs 29 and 31
above). The courts simply endorsed the investigator's opinion that
the applicant's claim was unmeritorious, without assessing the facts
of the case.
- The
Court further notes the peculiar feature of Russian criminal law
which made the possibility of lodging a civil claim for damages
against the putative tortfeasor conditional on the grounds on which
the criminal proceedings were discontinued. A decision to discontinue
proceedings on the ground that the alleged offence was not committed
(otsutstvie sobytiya prestupleniya) legally bars access to a
civil court on the basis of a claim for damages arising out of the
same event (see paragraph 37 above). By operation of those legal
provisions, the decision not to institute criminal proceedings
against the applicant's commanders on the ground that no offence had
been committed (see paragraph 23 above) debarred the applicant from
suing the military staff for damages in a civil court.
- The
Court therefore finds that the applicant has been denied an effective
remedy in respect of his complaint of ill-treatment during military
service. Consequently, there has been a violation of Article 13 of
the Convention.
III. 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.”
- The
Court points out that under Rule 60 of the Rules of Court any claim
for just satisfaction must be itemised and submitted in writing
together with the relevant supporting documents or vouchers, “failing
which the Chamber may reject the claim in whole or in part”.
- On
12 April 2005 the Court invited the applicant to submit a claim for
just satisfaction by 31 May 2005. He did not submit any such claim.
- In
such circumstances the Court would usually make no award. In the
present case, however, the Court has found a violation of the
applicant's right not to be subjected to inhuman punishment. Since
this right is of absolute character, the Court finds it exceptionally
possible to award the applicant 10,000 euros in respect of
non-pecuniary damage (compare Igor Ivanov v. Russia,
no. 34000/02, § 50, 7 June 2007, and Mayzit v.
Russia, no. 63378/00, §§ 87-88, 20 January
2005), plus any tax that may be chargeable.
- 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 complaints concerning the
ill-treatment in military unit no. 6794 (3025) in Astrakhan and
the absence of a civil-law remedy admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
3 of the Convention on account of the inhuman treatment of the
applicant in military unit no. 6794 (3025) in Astrakhan;
- Holds that there has been a violation of Article
3 of the Convention on account of an ineffective investigation into
the ill-treatment to which the applicant was subjected;
- Holds that there has been a violation of Article
13 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 10,000 (ten
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.
Done in English, and notified in writing on 3 July 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos
Rozakis
Registrar President
