BAKLANOV v. UKRAINE - 44425/08 - Chamber Judgment [2013] ECHR 1031 (24 October 2013)

In the case of Baklanov v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

          Mark Villiger, President,
          Angelika Nußberger,
          Boštjan M. Zupančič,
          Ann Power-Forde,
          Ganna Yudkivska,
          Helena Jäderblom,
          Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 1 October 2013,

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

PROCEDURE

The case originated in an application (no. 44425/08) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Mikhail Borisovich Baklanov (“the applicant”), on 3 September 2008.

The applicant was represented by his mother, Ms Raisa Ivanovna Baklanova.

The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr Nazar Kulchytskyy.

The applicant alleged that he had suffered ill-treatment and bullying during his mandatory military service, which had resulted in a permanent psychiatric illness. He further complained that there had been no effective domestic investigation into his allegation of ill-treatment, and that he had not been able to obtain compensation for the damage caused.

On 21 June 2011 the application was communicated to the Government.

On 3 February 2012 the Government’s observations on the case were sent to the applicant, who submitted observations in reply.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1985 and lives in Gorlivka in the Donetsk region.

A. The applicant’s state of health and military service

On 7 May 2003 the applicant was found fit for mandatory military service and was drafted into the army. He was willing to perform his military service and had no psychiatric or psychological concerns. Nor had he previously experienced any mental disorders.

After a brief period in a training camp, the applicant was assigned to Military Unit А0246, subsequently renamed Т0120 (hereinafter referred to as MU1). According to the applicant, he was regularly subjected to bullying and ill-treatment by senior officers in that unit. One such incident allegedly took place in February 2004 (see paragraph 23 below).

On 23 February 2004 the applicant was transferred to Military Unit А0730, subsequently renamed Т0310 (hereinafter referred to as MU2). He immediately attracted the attention of the commanding officers and medical staff by what they perceived as inadequate behaviour. That is, he appeared very sensitive, was not willing to communicate with fellow servicemen and expressed thoughts that could be interpreted as indicating suicidal tendencies. As a result, on the day of his arrival, the applicant was placed in the medical station, where he was kept for ten days. According to the authorities, the purpose of that measure was to monitor the applicant’s behaviour to see whether it gave rise to doubts about his fitness for continuing with his military service. The military officials also referred to the necessity to isolate the applicant from other soldiers on account of his psychological condition. According to the applicant, who did not deny the above account of his mental state, the real purpose of his placement in the medical station was to allow time for some bruises which he had to fade.

The case file does not contain the applicant’s medical file for the period from 23 February to 2 March 2004. According to the Government, those documents were probably destroyed or lost during the reorganisation of the military unit in September 2004 (see paragraph 15 below).

On 2 March 2004 the applicant was taken to the psychiatric department of the hospital of Military Unit A4615 (hereinafter referred to as MU3) for an examination and treatment.

On 1 April 2004 a medical panel at MU3 examined the applicant with a view to establishing whether he was fit for further military service. It noted in its report that the applicant complained of irritability, mood swings and headaches, the intolerable nature of the army atmosphere, and being homesick. The panel further noted that he had initially been willing to serve in the army and had had no prior psychiatric problems. However, during military service his health had gradually deteriorated. The applicant had been characterised by his fellow servicemen as unsociable, slow, untidy, short-tempered and suicidal. During his conversation with the doctors he appeared sad and emotionally fragile, sometimes tearful. The panel diagnosed him with moderate neuroticism expressed over a protracted period of time following situational triggers. It stated that his illness was related to his military service. The panel reached the conclusion that the applicant was not fit for further military service in peacetime and partially fit for service in wartime. He was also found to require a carer.

On 19 April 2004 the applicant was discharged from the military hospital and from the army.

In September 2004, as part of the reorganisation of the Armed Forces of Ukraine, the control of MU2 was transferred from the Ministry of the Defence to the Ministry of Public Transport.

On 7 July 2005 the Donetsk Regional Psychiatric Expert Commission of the Public Health Ministry (“the Psychiatric Commission”) registered the applicant as “Category 2” disabled on account of his mental condition, finding that he had lost eighty per cent of his capacity to work.

The applicant was granted a disability pension in the amount of 310 Ukrainian hryvnias (UAH) per month (then the equivalent of about fifty euros).

On 21 February 2007 the Gorlivka Psychoneurological Hospital issued a note, at the applicant’s request, detailing his medication needs and their costs. It specified that he required, on a regular basis, antipsychotic drugs, antidepressants and nootropics amounting to UAH 580 per month, as well as some treatment which cost UAH 3,530 per year.

By decisions of 22 August 2007, 26 August 2008 and 7 September 2010, the Psychiatric Commission confirmed that the applicant was “Category 2” disabled on account of “an illness related to his performance of military service”. On the last-mentioned date it decided that his disability was permanent and that no future reassessments were required.

B. Investigation into the applicant’s allegation of ill-treatment in the army

In February 2006 the applicant’s mother complained to the President of Ukraine, and apparently to some other authorities, that the applicant had been subjected to bullying and beatings during his military service at MU2 (she probably meant MU1 - see paragraph 22 below).

On 17 March 2006 the Military Prosecutor of the Dnipropetrovsk Garrison (hereafter referred to as “the Dnipropetrovsk Military Prosecutor”), to whom the aforementioned complaint had been forwarded, refused to institute criminal proceedings. He relied on the statements by the Chiefs of Staff of MU1 and MU2 and the squadron commanders in those two units, who denied that the applicant had been ill-treated or bullied, or that they had received any complaints from him in that regard. The prosecutor also questioned the chief of the medical station in MU2, who stated that the applicant had displayed “inadequate” behaviour, but had had no injuries and had not complained of any ill-treatment. After ten days of monitoring by the medical station’s doctors, it had been decided to transfer the applicant to MU3 for further examination, as that unit had a specialised psychiatric department in its hospital. Lastly, the prosecutor relied on the findings of the medical report of 1 April 2004, according to which the applicant had not raised any allegations of ill-treatment or bullying at that stage. Nor had his medical examination discovered any injuries. In sum, the prosecutor concluded that there was no case to answer.

On an unspecified date, the Southern Region Military Prosecutor quashed the aforementioned decision and ordered an additional investigation.

On 8 April 2006 the applicant gave a written statement to the Military Prosecutor of the Donetsk Garrison (near his place of residence) in respect of his alleged ill-treatment in the army. He submitted that from the autumn of 2003 he had been bullied by senior soldiers in MU1, who had extorted his military allowance and had used every possible pretext for beating him - such as allegedly inadequate cleaning or failure to accomplish a task. The applicant noted that there had been only one other junior soldier in the military unit, apart from himself, S. According to the applicant, they had often discussed their impressions of military service and had discussed the bullying incidents. The applicant admitted that he had not complained to his commanding officers, fearing that it would be considered ‘squealing’ and would trigger reprisals. Nor had he mentioned the matter to his parents, not wanting to upset them. The applicant stated that the last time he had been beaten up was by two officers, V. and another one whose name he did not know, in February 2004. On the following day he had not felt well and had sought medical assistance, explaining to the doctor what had happened. According to the applicant, the actual purpose of his placement in the medical station was to allow time for his bruises to fade. At the same time, he specified that he had not been ill-treated in MU2, where he was transferred shortly before his discharge from the army.

In response to a question about the delay of two years in raising the complaint of ill-treatment, the applicant submitted that he had been ashamed of his discharge from the army and that he had hoped to stay strong and to still be able to complete his military service. He stated that he had not realised how serious his condition was. The constant deterioration of his health had prompted him to complain to the prosecuting authorities.

As to the denial by the doctors of any injuries on the applicant at the material time, he contended that they had lied.

The applicant further noted in his statement to the prosecutor that his memory had seriously deteriorated. He could not remember the date of the beginning of his military service. Nor was he able to give details as to his alleged bullying prior to the last incident in February 2004. The applicant explained that he remembered clearly only the said incident, because it had been the last one and because he had been hospitalised thereafter.

On 28 February 2007 the applicant sent a letter to the Dnipropetrovsk Military Prosecutor, by registered post, requesting a copy of the decision refusing to open a criminal case into his alleged ill-treatment in the army (which appears to be that of 17 March 2006 - see paragraph 21 above). According to him, he received no reply.

On 21 March 2007 the applicant challenged the Dnipropetrovsk Military Prosecutor’s decision of 17 March 2006 before the Southern Region Military Prosecutor. He complained, in particular, that certain important witnesses had not been examined, namely S. and V. (see paragraph 23 above).

On 20 April 2007 the Southern Region Military Prosecutor informed the applicant by a letter that the contested decision had already been quashed in the meantime. The applicant confirmed in his submissions to the Court that he had received the letter.

On 4 June 2007 the Dnipropetrovsk Military Prosecutor again refused to institute criminal proceedings against officials of MU1 and MU2, having discerned no corpus delicti in their actions. In addition to the reasoning given in the decision of 17 March 2006, the prosecutor referred to the applicant’s statements of 8 April 2006 (see paragraph 23 above). Further, the investigation had established that S., whom the applicant had mentioned in his submissions, had only served at MU1 until 31 October 2003, after which he had been transferred to another unit. S. was questioned and refuted the applicant’s allegations, as did officer V., whom the applicant had accused of ill-treating him. The prosecutor also took note of the fact that the applicant had never complained during his medical examinations of any ill-treatment or bullying. Nor had those examinations revealed any injuries on him.

According to the Government, on 5 June 2007 the above-mentioned decision was sent to the applicant’s mother. According to the applicant and his mother, they became aware of the decision only from the Government’s observations on the case in the proceedings before the Court.

On 15 February 2011 the Dnipropetrovsk Military Prosecutor destroyed 205 investigation files which had been opened in connection with various complaints dating from 2006 and 2007, as the time-limits for their storage had expired. The applicant’s case was among them.

C. Administrative proceedings brought by the applicant

On an unspecified date in 2006 the applicant’s mother enquired with the Ministry of Defence as to whether the applicant could use its medical facilities free of charge, given that he had become disabled during his mandatory military service.

On 28 March 2006 the Armed Forces Deputy Chief of General Staff replied in the negative. He explained that while the legislation provided for such privileges as free use of Ministry of Defence medical establishments, the applicant was not eligible because “[his] disability did not result from a wound, a contusion, maiming, or a disease related to the discharge of military service duties, but was caused by a disease related to the performance of his military service.”

On 28 February 2007 the applicant lodged an administrative claim against MU2 with the Kalyninskyy District Court of Gorlivka (“the Kalyninskyy Court”), seeking compensation for damage caused by his disability, which he claimed had resulted from his ill-treatment in the army. He claimed a lump sum of UAH 9,249 in compensation for lost income, a monthly disability allowance of UAH 320, and an additional monthly allowance of UAH 874 for his medical expenses.

On 20 February 2008 the Kalyninskyy Court rejected the applicant’s claim, finding that he had already received all payments he was entitled to.

On 24 April 2008 the Donetsk Administrative Court of Appeal upheld that judgment. It noted that the applicant was receiving a disability pension and that he had already received an insurance payment due to him (UAH 6,800).

On 14 July 2011 the Higher Administrative Court upheld the lower courts’ decisions.

II. RELEVANT DOMESTIC LAW AND PRACTICE

The relevant provisions of the Constitution read as follows:

Article 3

“The human being, his or her life and health, honour and dignity, inviolability and security are recognised in Ukraine as having the highest social value. ...”

Article 28

“Everyone has the right to respect for his or her dignity.

No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity. ...”

According to section 11 of the Armed Forces Act 1991, the activities of the armed forces shall be based, in particular, on the principles of the rule of law, lawfulness, respect for humanity, and respect for the individual and his or her constitutional rights and freedoms.

In her Report 2004, the Parliament of Ukraine’s Commissioner for Human Rights dedicated a separate chapter to the issues of “respect for human rights in the armed forces of Ukraine and other military establishments”, in which she condemned the widespread phenomena of bullying and ill-treatment in the army.

THE LAW

I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION

The applicant complained under Article 3 of the Convention of ill-treatment and bullying in the army which, according to him, had resulted in his mental illness. He also complained that there had been no effective investigation into the matter. The provision relied on reads as follows:

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

A. Admissibility

The Government submitted that the applicant could not be regarded as having exhausted domestic remedies under Article 35 § 1 of the Convention because he had failed to challenge before the higher-level prosecution authorities or before the domestic courts the Dnipropetrovsk Military Prosecutor’s decision of 4 June 2007, which had been sent to him on 5 June 2007. They further argued that, even assuming that the letter enclosing that decision had not reached the applicant, he or his mother could have enquired about the progress of the investigation had they been genuinely interested in it.

The applicant denied being aware of the prosecutor’s decision of 4 June 2007 before receiving a copy of the Government’s observations concerning the present case (see paragraphs 6 and 31 above). He also maintained that he and his mother had made all reasonable efforts to follow the progress of the investigation and that their enquiries had often received no response. As an example, he referred to the letter sent by him to the Dnipropetrovsk Military Prosecutor on 28 February 2007, which he claimed had not been answered (see paragraph 27 above).

The Court considers that the issue of exhaustion of domestic remedies is closely linked to the merits of the applicant’s complaint under the procedural limb of Article 3 of the Convention regarding the effectiveness of the domestic investigation into his complaint of ill-treatment. The Court therefore joins the Government’s objection to the merits of the aforementioned complaint.

The Court also considers that this complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes, therefore, that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) Protection of the applicant’s health and dignity in the army

The applicant emphasised that he had been drafted into the army in good mental health and without any previous history of psychiatric disorders, but had been discharged from the armed forces in a completely broken mental state and would remain handicapped on that account for the rest of his life.

He attributed responsibility for this to the State, which, in his view, had failed to put in place effective preventive mechanisms to protect his security and human dignity during his mandatory military service. The applicant claimed that, as a result, he had suffered constant humiliation and ill-treatment at the hands of senior soldiers while serving in MU1.

He further submitted that he had not been provided with timely and adequate medical treatment following his alleged ill-treatment in February 2004. He stated in this connection that his hospitalisation in the medical station of MU2 had been aimed at the concealment of his bruises, whereas he should have immediately been transferred to a psychiatric hospital.

The Government denied any responsibility on the part of the State for the applicant’s mental illness, submitting that his allegation of ill-treatment and bullying in the army was vague and confused, lacked any essential details and had been raised with an unexplained delay.

They noted that none of the applicant’s fellow soldiers or officers had confirmed his allegation. Furthermore, none of the medical examinations had discovered any injuries on him. As to his placement in the medical station of MU2 following his arrival there on 23 February 2004, the Government submitted that it had been necessitated by his behaviour and that he had had no injuries and had raised no complaints of any ill-treatment.

The Government further observed that during his treatment in hospital from 2 March to 19 April 2004 the applicant had not complained to the doctors about having been subjected to any physical ill-treatment or psychological pressure. As could be seen from his medical records, he had complained of irritability, mood swings and headaches, the intolerable nature of the army atmosphere in general, and being homesick (see paragraph 13 above). Even during his routine conversations with doctors the applicant had not indicated in any way that he had been subjected to ill-treatment.

Overall, having regard to the complaints raised by the applicant upon his transfer to the military hospital in MU3, and his diagnosis of “moderate neuroticism expressed over a protracted period of time following situational triggers”, the Government considered it probable that the applicant, owing to the particular features of his character, had merely failed to overcome the hardships inherent in military service when performed by any individual (regime, drills, the need to obey orders, long separation from relatives, and few opportunities to visit his home).

(b) Domestic investigation into the applicant’s allegation of ill-treatment during his military service

The applicant argued that the domestic investigation had been superficial and ineffective. In his view, the authorities had made no attempt to collect any evidence that would support or refute his allegations.

The Government contended that the domestic authorities had done everything possible to verify the applicant’s allegation of ill-treatment. However, from the very outset the investigation had been hampered by the delay with which the complaint had been raised. Thus, the applicant’s mother had complained for the first time to the domestic authorities about his alleged ill-treatment during military service about two years after his discharge from the army, without giving any valid reasons for this delay.

The Government presumed that if the applicant had raised this complaint in due time, the medical documentation pertaining to the period from 23 February to 2 March 2004 would have probably been preserved, having been handled by the investigating authorities (see paragraphs 11 and 15 above).

The Government also maintained that, given the absence of any enquiries to the prosecution authorities from the applicant or his mother since June 2007, the applicant could not be regarded as having taken an interest in the progress of the investigation. They further noted in this connection that, as a result, the investigation file had been destroyed in February 2011.

In his reply to the Government’s observations as regards the timing of his domestic complaints, the applicant made a general submission that he and his mother had lodged numerous complaints with various domestic authorities.

The applicant further contended that he had contacted the prosecution authorities on many occasions to enquire about the progress of the investigation. He specified that the last such occasion had been on 28 February 2007, when he had sent a letter to the Dnipropetrovsk Military Prosecutor, which he claimed had never been responded to.

Lastly, the applicant found it suspicious that the investigation file had been destroyed on 15 February 2011, as, according to him, the Government was already aware of his application to the Court at that time.

2. The Court’s assessment

(a) General principles

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.

Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25).

Thus, the suffering and humiliation involved must 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).

The Court has held in its case-law that mandatory military service often involves such an element (see Kayankin v. Russia, no. 24427/02, § 81, 11 February 2010).

. The Court notes that it has addressed the unique nature of military service on a number of occasions. In particular, it has found that the State has a duty to ensure that a person performs military service in conditions which are compatible with respect for his human dignity, that the procedures and methods of military training do not subject him to distress or suffering of an intensity exceeding the unavoidable level of hardship inherent in military discipline and that, given the practical demands of such service, his health and well-being are adequately secured by, among other things, providing him with the medical assistance he requires. 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 and Others v. Turkey, no. 40145/98, § 41, 7 June 2005, and Kayankin v. Russia, cited above, § 82).

According to the Court’s settled case-law, any allegation of ill-treatment must be supported by appropriate evidence. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, cited above, § 161). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such control. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).

. The Court emphasises in this connection that, similarly to persons in custody, conscripts are entirely in the hands of the State and any events in the army lie wholly, or in large part, within the exclusive knowledge of the authorities. Therefore, the State is under an obligation to account for any injuries occurring in the army (see, mutatis mutandis, Beker v. Turkey, no. 27866/03, §§ 41-42, 24 March 2009, and Mosendz v. Ukraine, no. 52013/08, § 92, 17 January 2013).

This obligation has a close affinity with the procedural obligation of the State to undertake an effective investigation into an arguable complaint of ill-treatment. The obligation to investigate, in turn, “is not an obligation of result, but of means”: not every investigation should necessarily be successful or come to a conclusion which coincides with the claimant’s account of events; however, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible. Thus, the investigation of serious allegations of ill-treatment must be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence, and so on. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard (see, among many authorities, Assenov and Others v. Bulgaria, 28 October 1998, §§ 102 et seq., Reports of Judgments and Decisions 1998-VIII, Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002-II, and Mikheyev v. Russia, no. 77617/01, § 107 et seq., 26 January 2006).

(b) Application of the above principles to the present case

The Court observes that the applicant’s grievances concern the following issues: firstly, he alleged that he had suffered ill-treatment and humiliation in the army; secondly, he attributed the responsibility for his psychiatric illness, which he had acquired during his mandatory military service, to the State, with reference to the previous allegation; and, thirdly, he complained that the domestic investigation into his ill-treatment allegation had been inadequate.

The Court notes that the applicant’s allegation of ill-treatment was the subject of a domestic investigation. Before dealing with his complaint regarding the alleged ill-treatment, it is important for the Court to reach an opinion about the genuineness and thoroughness of the domestic authorities’ efforts to establish the truth in this case. Only when it has made an assessment of the domestic investigation will the Court know whether it can rely on its findings (see Karabet and Others v. Ukraine, nos 38906/07 and 52025/07, § 252, 17 January 2013).

. Accordingly, the Court will first deal with the applicant’s complaint regarding the adequacy of the investigation, and then with his complaint about his alleged ill-treatment. Lastly, it will examine whether any responsibility for the applicant’s psychiatric illness lay with the State.

i. Adequacy of the domestic investigation into the applicant’s allegation of ill-treatment and bullying in the army

. Given the seriousness of the applicant’s allegation, the Court is satisfied that the State was bound by an obligation to investigate it effectively.

In the absence of any evidence or factual details suggesting that the applicant or his mother complained about his alleged ill-treatment in the army at any time before February 2006 (see paragraphs 20, 55 and 58 above), the Court considers it established that it was in February 2006 that this complaint was raised for the first time, that is, about two years after the alleged ill-treatment.

The Court has held in its case-law that where time is of essence for resolving an issue in a case, there is a burden on the applicant to ensure that his or her claims are raised before both the relevant domestic authorities and the Court with the necessary expedition to ensure that they may be properly and fairly resolved (see, amongst others, Bayram and Yıldırım v. Turkey (dec.), no. 38587/97, ECHR 2002-III). Indeed, with the lapse of time, memories of witnesses fade, witnesses may die or become untraceable, evidence deteriorates or ceases to exist, and the prospects that any effective investigation can be undertaken will increasingly diminish; and the Court’s own examination and judgment may be deprived of meaningfulness and effectiveness (see Varnava and Others v. Turkey [GC], nos. 16064/90 et seq., § 161, ECHR 2009).

The Court has viewed unexplained inactivity on the part of an applicant and indifference towards a possible investigation for a prolonged period of time as factors rendering his complaint negligent (see Manukyan v. Georgia (dec.), no. 53073/07, 9 October 2012).

In the present case the applicant did not explain the delay in question in his submissions to the Court. The Court also notes that, when questioned about it by the investigating authorities, the applicant explained that he had been ashamed of his discharge from the army and that he had not realised the seriousness of his medical condition (see paragraph 24 above).

The reasons given by the applicant might appear insignificant at first glance. However, viewed in the light of his mental state, they do have weight and may explain his long silence on the matter.

That being the case, the Court does not discern any indifference or negligence on the part of the applicant. It does not therefore hold the delay in question against him.

At the same time, the Court cannot but state that such a delay - of about two years - must have had a negative impact on the investigation, diminishing the prospects of its success.

Another factor complicating the investigation was the deterioration of the applicant’s memory, which he himself admitted (see paragraph 26 above).

As to the authorities’ response to the complaint, the Court notes that within about a month they questioned the commanding and medical personnel of two military units and studied the pertinent medical reports (see paragraph 21 above). As a result, a conclusion was reached that there was no case to answer.

The above-mentioned measures were, however, found to be insufficient by a higher-level prosecution authority and the investigation continued. The Court observes that the investigator questioned the applicant without delay (namely, at the most two months after the complaint had been raised - see paragraph 23 above, and, for a converse example in the case-law, see Aleksandr Smirnov v. Ukraine, no. 38683/06, § 60, 15 July 2010). Furthermore, the two persons indicated by the applicant (officer V., who had allegedly bullied him, and former private S., whom the applicant named as an army friend) were also questioned. The Court notes that the last-mentioned witness, who was expected to support the applicant’s allegation, in fact refuted its veracity. There appears to be no reason not to trust his statements.

The Court further notes that the investigation had to assess, on the one hand, the medical files and submissions of the medical staff of the three military units in which the applicant had either served or undergone treatment, according to which he had never complained of any ill-treatment or bullying and no injuries had been found on him. On the other hand, there was the applicant’s general and vague statement that all the medical specialists had lied (see paragraph 25 above). In the Court’s opinion, the investigator’s decision to dismiss that submission cannot be considered unreasonable.

The Court observes that the investigation was completed on 4 June 2007 with a decision not to institute criminal proceedings, which was not challenged by the applicant (see paragraph 30 above). The investigation thus lasted for about one year and four months, which is not excessively long.

While the applicant submitted that he had never received the aforementioned decision, the Court notes that, according to him, his last enquiry with the prosecution authorities as to the progress of the investigation was made on 28 February 2007 (see paragraphs 27, 44 and 59 above). From the facts of the case it appears that another step taken by the applicant thereafter was to challenge, on 21 March 2007, the investigator’s earlier decision of 17 March 2006 (which had already been quashed by that time - see paragraphs 28 and 29 above). The applicant did not refer to any subsequent enquiries, letters or complaints sent by him or his mother to the investigating authorities since then. According to him, the prosecutor’s letter of 20 April 2007 (see paragraph 29 above) was the last information on the investigation he had received. Thus, the applicant submitted that he remained unaware of the prosecutor’s decision of 4 June 2007 until receiving the Government’s observations on his application (see paragraphs 31 and 44 above).

It follows that the applicant and his mother had no information and did not enquire about the investigation for almost five years, from April 2007 till February 2012 (when the Government’s observations were sent to him - see paragraph 6 above). Meanwhile, on 3 September 2008 the applicant introduced his application with the Court (see paragraph 1 above), without, however, seeking any update on the domestic investigation.

Unlike in the case of the initial delay in raising the ill-treatment allegation before the domestic authorities, which could be explained and excused given the applicant’s psychiatric illness, the Court has no explanation before it as regards this prolonged inactivity on the part of the applicant (represented by his mother).

Lastly, the Court takes note of the general nature of the applicant’s criticism regarding the domestic investigation. Thus, he did not specify any omissions, delays or mistakes, or any facts that could be interpreted as an indication of the authorities’ bad faith or negligence in establishing the truth in his case. The only such fact referred to by the applicant was the destruction by the authorities of the investigation file. According to him, they destroyed the file in the knowledge that his application was pending before the Court. The Court does not, however, find this argument convincing. It notes that the case was communicated to the Government in June 2011, whereas the investigation file had been destroyed already in February 2011 (see paragraphs 5 and 32 above). By that time, five eventless years had elapsed since the decision of 4 June 2007 completing the investigation (see paragraph 30 above). In these circumstances, the Court does not find that the Ukrainian authorities were at fault as regards the destruction of the file.

The foregoing considerations are sufficient to enable the Court to conclude that the investigation into the applicant’s complaint of ill-treatment during his military service was “effective”. There has therefore been no violation of Article 3 of the Convention in this regard.

In the light of this finding, the Court does not deem it necessary to deal with the Government’s objection as to the exhaustion of domestic remedies by the applicant, which was previously joined to the merits of this complaint (see paragraph 45 above).

ii. Alleged ill-treatment of the applicant

. The Court is sensitive to the subsidiary nature of its role and must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. Where domestic proceedings have taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic authorities and, as a general rule, it is for those authorities to assess the evidence before them. Although the Court is not bound by the latter’s findings, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact they have reached (see Rozsa v. Romania (dec.), no. 21600/05, § 58, 2 October 2012, with further references).

. Thus, the Court considers that it can and should intervene only where the domestic authorities have failed in that task or where the domestic institutions are not capable of providing effective protection of the rights guaranteed by the Convention.

. In the present case the Court has held that the domestic authorities duly investigated the applicant’s allegation of ill-treatment and found it to be without basis. There are therefore no reasons for questioning that finding.

. Accordingly, the Court concludes that there has been no violation of Article 3 as to the applicant’s alleged ill-treatment.

iii. The applicant’s psychiatric illness

. Regardless of all the above findings, it remains an established fact that during his mandatory military service the applicant was diagnosed with a serious psychiatric disorder rendering him handicapped for life, and that the illness in question was found to be related to his military service (see paragraphs 13-14, 16 and 19 above).

. It will therefore be examined whether the applicant’s psychiatric illness implies any responsibility on the part of the State, in addition to the aspects already analysed above.

. First of all, the Court will look at whether the State took all reasonable efforts to prevent the applicant’s psychological breakdown.

. It notes in this connection that the applicant has not elaborated on his allegation of an absence of effective preventive mechanisms to protect his security and human dignity in the army (see paragraph 48 above). Furthermore, his allegation of ill-treatment in the army was found to be unsubstantiated (see paragraph 93 above).

In so far as this complaint may be understood as pertaining to the regulatory and administrative framework of military service, it does not provide grounds for the Court to question the Ukrainian military system (see and compare, as regards the Russian military system, Kayankin v. Russia, cited above, § 106).

The Court further notes that the applicant has never expressed any doubts or criticism in respect of the modalities and conclusions of the initial medical examination which found him fit for the military service. On the contrary, he consistently maintained that he had been in good health and willing to serve in the army (see, in particular, paragraph 47 above). Likewise, no indication of any problems with his mental health prior to his military service is discernible from his mother’s submissions or from any of the case-file materials.

In these circumstances, the Court does not question the authorities’ judgment on the applicant’s fitness for military duty and his drafting into the army.

. The next issue calling for clarification is whether the deterioration of his mental health received adequate and timely medical care.

The Court notes that, according to the case-file materials, such deterioration was noticed and recorded for the first time on 23 February 2004, upon the applicant’s arrival at MU2, that is, almost ten months after the beginning of his military service (see paragraphs 8 and 10 above).

. There are no submissions from the applicant or any other materials indicating that his psychiatric problems manifested themselves and warranted medical attention at any point before that.

. As to the medical care provided to the applicant on account of his psychiatric condition after 23 February 2004, the Court notes that, apart from alleging that his ten-day placement in the medical station of MU2 had been aimed at allowing time for his alleged bruises to heal, the applicant did not give any details in support of his criticism as to the timing and adequacy of his medical treatment. Nor does it transpire from any medical documents that the ten-day delay in placing the applicant in a psychiatric hospital undermined the efficiency of his treatment. As regards the applicant’s subsequent treatment in the psychiatric hospital of MU3, he made no complaint at all in that connection.

. In the light of all the above considerations the Court does not discern any responsibility on the part of the State for the applicant’s psychiatric illness.

There has therefore been no violation of Article 3 of the Convention in this regard.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

Relying on Articles 6 and 13 of the Convention, the applicant also complained that he had not had an effective domestic remedy in respect of the above complaints.

The Court considers it appropriate to examine this complaint solely under 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 observes that Article 13 has been consistently interpreted in its case-law as requiring a remedy in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, as a classic reference, Boyle and Rice v. the United Kingdom, 27 April 1988, § 54, Series A no. 131).

The Court reiterates in this connection that the existence of an actual breach of another provision is not a prerequisite for the application of Article 13 (see, for example, Hatton and Others v. the United Kingdom [GC], no. 36022/97, §§ 130, 137 and 142, and Nuri Kurt v. Turkey, no. 37038/97, § 117, 29 November 2005).

In the present case, even though the Court held that no violation of Article 3 of the Convention had been made out, it did not find the applicant’s complaints in that regard to be prima facie untenable and reached the aforementioned conclusion only after an examination of their merits. Accordingly, the Court considers that the applicant did raise an arguable claim for the purposes of Article 13 of the Convention.

His complaint under this provision is therefore not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor are there any other reasons for declaring it inadmissible. The Court therefore declares it admissible.

B. Merits

The applicant submitted that the domestic authorities had failed to duly investigate his complaint of ill-treatment in the army and to cover all his medical needs and loss of earnings caused by his disability on account of the psychiatric illness acquired during his military service.

The Government contested the applicant’s arguments. They argued that both the prosecution authorities and the administrative courts had properly examined the applicant’s complaints and claims.

The Court has held in its case-law that two measures are necessary to remedy an alleged breach of Article 3 of the Convention at national level. Firstly, the State authorities must have conducted a thorough and effective investigation capable of leading to the identification and punishment of those responsible. Secondly, an award of compensation to the applicant is required where appropriate or, at least, the possibility of seeking and obtaining compensation for the damage sustained as a result of the ill-treatment (see, for example, Gäfgen v. Germany [GC], no. 22978/05, § 116, ECHR 2010, with further references).

The Court further emphasises that the notion of an effective remedy within the meaning of Article 13 does not, however, mean a remedy which is bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of the complaint (see N.B. v. Slovakia, no. 29518/10, § 108, 12 June 2012).

In so far as the effectiveness of the investigation in the present case is concerned, the Court notes that this issue was already examined under the procedural limb of Article 3 (see paragraphs 72-89 above).

As to the possibility to seek and obtain compensation for his psychiatric illness, it was the subject of administrative proceedings brought by the applicant at the national level. The Court discerns no unfairness in those proceedings and notes that the applicant’s grievance is confined to disagreeing with their outcome.

The Court therefore concludes that there has been no violation of Article 13 of the Convention.

FOR THESE REASONS, THE COURT

1. Decides unanimously to join the Government’s objection as to the exhaustion of domestic remedies in respect of the applicant’s complaint under Article 3 of the Convention to the merits of that complaint, and, after having examined the merits, holds that there is no need to examine this objection;

2. Declares unanimously the application admissible;

3. Holds unanimously that there has been no violation of Article 3 of the Convention in respect of the applicant’s alleged ill-treatment in the army;

4. Holds by five votes to two that there has been no violation of Article 3 of the Convention in respect of the effectiveness of the domestic investigation into the applicant’s allegation of ill-treatment;

5. Holds by five votes to two that there has been no violation of Article 3 of the Convention in respect of the psychiatric illness the applicant acquired during his mandatory military service;

6. Holds unanimously that there has been no violation of Article 13 of the Convention.”

Done in English, and notified in writing on 24 October 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Mark Villiger
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint partly dissenting opinion of Judges Nußberger and Yudkivska is annexed to this judgment.

M.V.
C.W.

JOINT PARTLY DISSENTING OPINION OF JUDGES NUSSBERGER AND YUDKIVSKA

Whilst we subscribe to the conclusion of the Chamber that there has been no violation of Article 3 of the Convention in respect of the applicant’s alleged ill-treatment in the army, as it could not be proven beyond reasonable doubt, we cannot share the majority’s opinion that the State did not bear the responsibility for the applicant’s psychiatric disorder and that the investigation into his complaints was effective.

This is the second case against Ukraine examined by the Court which concerns the worrying phenomenon of didivshchyna.

In the recent case of Mosendz v. Ukraine (see Mosendz v. Ukraine no. 52013/08 § 113, 17 January 2013) the Court held: “... having regard to the widespread concern over the existence of ‘didivshchyna’, or hazing, in the Ukrainian army (...) voiced, in particular, in the Ukrainian Ombudsman’s report and in some international materials (...), the Court does 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 hierarchical authority levels, rather than limiting it to wrongdoings of individual officers, is especially worrying (...).” In our view, this general context cannot be ignored in the present case either.

It is admitted that the applicant was in good mental health before he was drafted into the army, and that within ten months he had become mentally ill. Moreover, the applicant’s mental illness appears to have been severe - he lost eighty per cent of his capacity to work (see paragraph 16 of the judgment).

The causal link between the applicant’s military service and his disability was never called into question. It was the medical panel itself which reached the conclusion in April 2004 that “[the applicant’s] illness was related to his military service” (see paragraph 13).

This very fact, in view of the widespread and well-known problem of didivshchyna in the army, called for an investigation to be carried out of the authorities’ own motion, even though the applicant himself did not complain about what had happened to him in the army until two years later. An immediate investigation would have avoided any problems caused by the lapse of time. Unlike the majority (paragraph 79) we therefore hold the authorities responsible for the diminishing prospect of success of the investigation caused by the delay.

Not only did the authorities fail to launch an investigation immediately after the medical panel’s evaluation in April 2004; the investigation into the complaint made by the applicant’s mother in 2006 also has to be considered as superficial.

Contrary to the situation in the Kayankin case (see Kayankin v. Russia no. 24427/02 § 111, 11 February 2010) where the investigative authorities performed a forensic investigative simulation of the incident and also undertook other “significant investigative measures, including questioning of the applicant, the accused Captain Ch., and the applicant’s fellow soldiers, performing confrontation interviews to settle the differences in the parties’ accounts of events and obtaining an additional expert opinion”, in the present case the investigation was limited to questioning the senior officers of two military units (MU1 and MU2), the chief of the medical station in MU2 and two more witnesses mentioned by the applicant.

Thus, although the applicant had spent these crucial ten months in military unit MU1, only the chief of staff and the squadron commander of that unit were questioned, together with witnesses S. and V. It is true that the most reliable witness, S., a conscript like the applicant and at the time of questioning no longer a member of the army, did not confirm the applicant’s allegations. But, in our view, this was not sufficient to absolve the authorities from their positive obligation to thoroughly investigate the injuries resulting from the applicant’s military service. Instead of trying to find out the truth about what had happened, they restricted themselves to rejecting the few and vague allegations made by the applicant. It was obvious that in the specific circumstances of the case this was inadequate, as those allegations were made at a time when the applicant was already suffering from a mental illness and was therefore not in a position to give a clear account of what had happened to him. The authorities could have investigated much more thoroughly and questioned all the other fellow soldiers of the applicant as well as other people outside the army who might have shed additional light on the circumstances of the case. They could also have ordered an expert analysis to determine the potential causes of the applicant’s illness.

We consider that this lack of diligence, especially seen against the background of general knowledge about didivshchyna in the army, rendered the investigation ineffective.

According to the Court’s established case-law, the State is under an obligation to account for any injuries or deaths occurring in the army, unless it can be shown on the basis of a thorough investigation that there are other explanations for the injuries caused (see Beker v. Turkey, no. 27866/03, §§ 41-42, 24 March 2009, with further references). In the absence of any investigation meeting the required standards, we conclude that the applicant’s mental illness after ten months of military service is imputable to the State.

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You are here: BAILII >> Databases >> European Court of Human Rights >> BAKLANOV v. UKRAINE - 44425/08 - Chamber Judgment [2013] ECHR 1031 (24 October 2013) URL: http://www.bailii.org/eu/cases/ECHR/2013/1031.html Cite as: [2013] ECHR 1031