Communicated on 21 November 2016
THIRD SECTION
Application no. 3959/14
Yekaterina Ivanovna KHUDOROSHKO
against Russia
lodged on 19 December 2013
STATEMENT OF FACTS
The applicant, Ms Yekaterina Ivanovna Khudoroshko, is a Russian national, who was born in 1973 and lives in Ust-Tarka, a settlement in Novosibirsk Region. She is represented before the Court by Ms T. Sladkova, a lawyer practising in Moscow.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 9 November 2010 the applicant’s son, S.Kh., was drafted for compulsory military service. Psychological tests performed on 1 November and 14 December 2010 did not show suicidal tendencies. From 6 January 2011 S.Kh. served in military unit no. 09762 located on the Kamchatka peninsula.
On 28 April 2011 at about 2 p.m. S.Kh. was found dead in a basement hanging from a noose made with a belt.
According to an administrative inquiry into the reasons for S.Kh.’s suicide, in January 2011 he complained to his mother of bullying and asked her for 1,000 Russian roubles (RUB) to give to a senior conscript, Pte. Ch. Certain other junior soldiers also asked their parents for money to give to senior conscripts. The inquiry mentioned that during the period between January and March 2011 medical assistants had submitted to the unit command several reports regarding bruises found on the bodies of younger conscripts during their medical check-ups. However, the unit command had failed to investigate the origin of the bruises or to take any other steps. The inquiry also noted breaches of military discipline in that S.Kh. had been able to leave his post and to enter an unguarded open basement. The inquiry concluded that the commanding officers had failed to ensure order, discipline and a safe environment for military servicemen.
Upon the results of the administrative inquiry, on 30 April 2011 Cdr. M. concluded that the unit command had failed to comply with the rules of organisation of money transfers to military personnel which had allowed unhampered extortion of money from junior conscripts. He also found that the commanding officers of the military unit had failed to take general or individual measures to prevent suicides among the servicemen. Certain officers were subjected to disciplinary procedures.
On 1 July 2011 the military prosecutor’s office of the Petropavlovsk-Kamchatsk Garrison requested that the military command rectify breaches of law. In particular, they pointed out that medical check-ups had not been performed properly – the data about injuries had not been entered into the journal; the unit command had not monitored the keeping of the journal; the information about bruises found on some soldiers had not been addressed. According to the military prosecutor’s office, during medical check-ups on 30 March and 14 April 2011 the medical assistant of the military unit found and reported bruises on S.Kh.’s body. However, the unit command failed to take any actions in that connection.
On 1 November 2011 medical experts issued a post-mortem psychological report in respect of S.Kh. They concluded that S.Kh. had not been suffering from any psychological disorder. In their opinion, S.Kh. had committed suicide due to pressure put on him by Pte. Ch.
On 10 September 2012 the 35th Garrison Military Court (“the Garrison Court”) found that S.Kh. had been subjected to hazing rituals in his military unit. In particular, he had been forced “to pull a hundred” (тянуть сотку) – a tradition requiring a younger soldier to comply with all requests, including demands for money, of a senior soldier during the latter’s last hundred days before discharge from the army. The Garrison Court found Pte. Ch. guilty of extortion and of breaches of the statutory relationships between military personnel with serious consequences. The Garrison Court rejected the applicant’s civil claims against the State for non-pecuniary damages owing to the death of her son. The Garrison Court held that it could not examine claims against the State for the failure to ensure proper military discipline (eliminate hazing rituals) within the framework of the criminal proceedings against Pte. Ch. The Garrison Court also found that the State was not liable for Pte. Ch.’s actions as he had not been acting upon the orders from the unit command.
On 9 November 2012 the Tikhookeanskiy Fleet Military Court (“the TFMC”) quashed the judgment of 10 September 2011 for violation of Pte. Ch.’s right to legal assistance and remitted the case for retrial.
On 19 March 2013 a second report on S.Kh.’s psychological state before his death was prepared. The report concluded that Pte. Ch.’s actions could not have been the only reason for S.Kh.’s suicide.
On 23 April 2013 the Garrison Court found no direct causal link between Pte. Ch.’s actions only and S.Kh.’s suicide, relying on the latest psychological report. It convicted Pte. Ch. of extortion and of a simple breach of statutory relationships between military personnel without serious consequences. The Garrison Court dismissed the applicant’s civil claims against the State for non-pecuniary damages. It held that the authorities’ alleged failure to act had not been the subject of the examination of the criminal charges against Pte. Ch.
On 28 June 2013 the TFMC held an appeal hearing. It disagreed with the Garrison Court and held that Pte. Ch.’s unlawful actions had caused S.Kh.’s suicide. The TFMC thus found Pte. Ch. guilty of extortion and of breaches of statutory relationships between military personnel with serious consequences. Pte. Ch. was sentenced to five years’ imprisonment. The TFMC rejected the applicant’s civil action for damages against the State on the grounds that S.Kh.’s suicide had resulted from the unlawful actions of Pte. Ch., who had not been acting under the orders of the unit command.
The applicant lodged a cassation complaint against the appeal decision of 28 June 2013. She complained, in particular, about the dismissal of her damages’ claims.
On 28 October 2013 a single judge of the TFMC refused to refer the case for consideration to the cassation instance court. As for the claims for damages, the judge considered that the applicant had failed to demonstrate that the failure to ensure proper military discipline had directly caused the claimed damage.
On 31 July 2014 a single judge of the Supreme Court of the Russian Federation examined a second cassation complaint by the applicant. He found meritorious the argument that the State should be responsible for the actions of its active military serviceman and referred the cassation complaint to the Presidium of the TFMC for examination. On 8 October 2014 the Presidium of the TFMC rejected the applicant’s cassation complaint on the grounds that Pte. Ch. had committed his unlawful actions not in the interests or under orders of the State. The Presidium held that the failure to ensure military discipline cannot be grounds for an obligation on the part of the military authorities to pay compensation. On 25 December 2015 the Supreme Court of the Russian Federation upheld the TFMC’s decision of 8 October 2014.
COMPLAINTS
The applicant complains under Articles 2 and 3 of the Convention of her son’s ill-treatment and death during his military service.
The applicant further complains, under Article 13 in conjunction with Articles 2 and 3 of the Convention, that the domestic courts dismissed her claims against the State for non-pecuniary damages.
QUESTIONS TO THE PARTIES
1. Having regard to the special position of conscripts, did the Government meet their obligation to protect the applicant’s son’s life (see Kılınç and Others v. Turkey, no. 40145/98, § 41, 7 June 2005; Beker v. Turkey, no. 27866/03, §§ 41-42, 24 March 2009; Mosendz v. Ukraine, no. 52013/08, §§ 91, 92 and 98, 17 January 2013; Perevedentsevy v. Russia, no. 39583/05, §§ 93-94, 24 April 2014; and Tikhonova v. Russia, no. 13596/05, § 68, 30 April 2014)? Did the State know or should it have known about the existence of a real and immediate risk to the life of the applicant’s son? If so, what steps did the domestic authorities undertake to prevent that risk?
2. Was the applicant’s son subjected to torture or inhuman or degrading treatment or punishment, in breach of Article 3 of the Convention?
3. Given the refusal of compensation, did the applicant have effective domestic remedies at her disposal in respect of her complaints under Articles 2 and 3, as required by Article 13 of the Convention? The Government are invited to provide copies of domestic court decisions to demonstrate the effectiveness of the suggested remedies.
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