Information Note on the Court’s case-law No. 110
July 2008
Chember v. Russia - 7188/03
Judgment 3.7.2008 [Section I]
Article 3
Inhuman punishment
Excessive level of physical exercise imposed as punishment on conscript known to be suffering from health problems and failure to conduct effective investigation: violations
Facts: While performing his national service, the applicant, who had been exempted from physical exercise and squad drill on account of a known knee condition for which he had been receiving treatment, was among a group of men who were ordered to do 350 knee bends as punishment for failing to clean the barracks properly. He collapsed during the exercise and was taken to hospital. He was later diagnosed with a closed injury of the spine, discharged from military service on medical grounds and classified as suffering from a second-degree disability. He can no longer walk properly. Following an inquiry, the prosecutor’s office decided not to bring criminal proceedings against the officers in charge for want of evidence of an offence. A claim for damages by the applicant in the civil courts was dismissed because there had been no finding of guilt in the criminal proceedings. In the meantime, the applicant’s mother had complained to a higher military prosecutor about the decision not to bring criminal proceedings , but he refused to examine her complaint until such time as the civil court had returned the documents and the applicant had received no further information since.
Law: Article 3
(a) Substantive limb: Even though challenging physical exercise might be part and parcel of military discipline, it should not endanger the health and well-being of conscripts or undermine their dignity. The applicant had been subjected to forced physical exercise to the point of collapse and the resulting injury had caused long-term damage to his health. Despite being fully aware of the applicant’s specific health problems and having exempted him from physical exercise and squad drill, his commanders had forced him to do precisely the kind of exercise which would put great strain on his knees and spine. The severity of that punishment could not be accounted for by any disciplinary or military necessity. The punishment had thus been deliberately calculated to cause the applicant intense physical suffering, which amounted to inhuman punishment.
Conclusion: violation (unanimously).
(b) Procedural limb: The Court found the domestic inquiry defective in a number of ways (lack of a medical examination, failure to identify or question witnesses, and failure to hear the applicant in person or to mention his version of events in the decision not to bring criminal proceedings so that he was unable formally to claim victim status or to exercise his procedural rights). The applicant had been caught up in a vicious circle of shifted responsibility in which no domestic authority had reviewed or remedied the shortcomings of the inquiry. The civil court had not carried out any independent review, but had simply based its judgment on the findings in the military authorities’ decision, while the supervising military prosecutor had then failed to respond to the applicant’s mother’s complaint as he considered that a response was no longer necessary following the civil court’s judgment. The Russian authorities’ inquiry into the applicant’s allegations of ill-treatment had, therefore, not been thorough, adequate or efficient.
Conclusion: violation (unanimously).
Article 13 – As was illustrated by the fact that the civil courts had simply endorsed the investigator’s opinion without assessing the facts, the effectiveness of any other remedy that might have existed had been undermined by the ineffectiveness of the criminal inquiry. The Court also noted that it was a peculiar feature of Russian criminal law that the ability to make a civil claim for damages depended on the grounds on which the criminal proceedings had been discontinued. The decision in the applicant’s case not to bring criminal proceedings against his superiors on the ground that no offence had been committed had effectively debarred him from suing for damages in a civil court.
Conclusion: violation (unanimously).
Article 41 – EUR 10,000 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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