Communicated on 3 May 2017
THIRD SECTION
Application no. 21189/15
Yevgeniy Vladimirovich SHERER
against Russia
lodged on 17 April 2015
STATEMENT OF FACTS
1. The applicant, Mr Yevgeniy Vladimirovich Sherer, is a Russian national who was born in 1965 and lives in Linevo, Volgograd region. He is represented before the Court by Ms T.I. Sladkova, a lawyer from the Mother’s Right Foundation (Право Матери), an NGO registered in Moscow.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The applicant’s son’s death in the army and official investigation
3. In July 2013 the applicant’s son, A., who was born in 1993, was drafted into the army. From November 2013 he served in military unit no. 04436 at the Russian military base in Gyumri, Armenia.
4. On 25 February 2014 A. died. According to the death certificate issued by the Russian General Consulate in Gyumri on the same date, he died as a result of “sudden death”.
5. On the same day Ch., an investigator of military investigating unit no. 519 of the Investigative Committee of the Russian Federation, ordered a forensic medical examination of the corpse. It was stated in the investigator’s decision that at around 8 a.m. on 25 February 2014 in the course of the military unit falling in for inspection, an altercation had taken place between A. and his co-serviceman, K. The latter had grabbed A.’s hands and knocked him down. A. had fallen on his back. He had felt unwell and had been taken to a medical centre of the military unit. He had then been taken to a hospital in Gyumri where he had died at 8.37 a.m.
6. A similar statement of the facts preceding A.’s death was made in a report of the commander of A.’s military unit, issued on an unspecified date in February 2014. It was further noted that the examination of A.’s medical records had revealed certain restrictions concerning his fitness for military service, notably the diagnosis of “moderate dystrophic disorders of myocardium” and second-degree obesity. The commander stated that those findings made it necessary to carry out a forensic medical expert examination. He referred to an opinion of doctors from the hospital in Gyumri that, given the altitude and the intense physical activity, those diagnoses could have led to an acute heart failure. The commander ordered that several officers of the military unit to whom A. had reported be warned and reprimanded for their failure to prevent the violence between their subordinates.
7. From 27 February to 25 March 2014 a commission of three forensic medical experts from branch no. 2 of the federal State institution Main State Centre for Forensic-Medical and Criminalistics Examinations no. 111 of the Russian Ministry of Defence (“Centre no. 111”), Dr V., Dr K. and Dr M., carried out a post-mortem forensic medical examination.
8. On 27 February 2014 the experts issued a medical death certificate with a preliminary diagnosis of “unspecified cardiac arrest”.
9. The entire heart, as well as fragments of other internal organs, was removed for histological examination. Samples of the heart had been used for the examination.
10. In their report of 25 March 2014 the experts concluded that A. had died as a result of acute myocardial infarction. The experts also found that A. had suffered from ischemic heart disease before his conscription. They noted that A.’s electrocardiogram examination on 2 July 2013 had revealed “moderate dystrophic disorders of myocardium”.
11. The following injuries were found on A.’s body: a bruise on the right temple measuring 4.0 by 1.2 cm, a bruise in the area of the upper chest surrounding the armpit on the anterior axillary line measuring 5.0 by 0.6 cm, and small lesions on the right wrist and the face, including abrasions on the wings of the nose which had possibly been received as a result of the first aid administered to A., and abrasions in the area of the mouth possibly received by A. when shaving himself shortly before his death. According to the experts, there had been no causal relationship between those injuries and A.’s death.
12. On 25 March 2014 Investigator Ch. brought criminal proceedings against K. under Article 335 § 1 (violation of regulations of conduct between servicemen, associated with debasement of human honour and dignity, or with mockery of the victim, or attended by violence, without grave consequences). The investigator stated that during the incident on 25 February 2014 K. had grabbed A. by the hands and thrown him to the ground by using a wrestling technique known as a hip throw. The investigator held that as a result of K.’s unlawful use of physical violence A. had received injuries. Though the investigator did not refer to the forensic medical experts’ report, his description of the injuries was apparently taken from that report, omitting only the abrasions on the wings of the nose.
13. On the same date the applicant was granted victim status in the criminal proceedings.
14. No charges were brought against K. and on 20 August 2014 R., a deputy head of military investigating unit no. 519, terminated the criminal proceedings against him under Article 24 § 1 (2) for lack of the elements of a crime in his actions, on account of their pettiness.
15. The decision referred to statements by A.’s co-servicemen and Dr V. that (i) A. had pushed and struck K. before K. had thrown him to the ground by using the wrestling technique known as a hip throw, (ii) A. had fallen on his back on the tarmac, his eyes had rolled back and he had started wheezing; artificial ventilation and massage of the heart were administered by his co-servicemen but had not helped A. come round and he had been carried to the medical centre unconscious, (iii) A.’s injuries in the area of the wings of the nose could have been received as a result of the artificial ventilation, and (iv) his remaining injuries could have been received in circumstances unrelated to the incident between him and K.
16. The decision held that K. had used violence in order to stop A.’s unlawful behaviour. Though formally constituting the elements of a crime under Article 335 § 1 of the Criminal Code, the actions of K., who had no prior convictions, had been petty, had not entailed any important violation of A.’s rights and interests and had not posed a danger to society.
B. Independent expert opinion
17. Several days after 25 February 2014 the body of his late son was returned to the applicant. He took it to a private institution, the Scientific Research Institute of Forensic Examination (“STELS”) located in Chelyabinsk, for an independent post-mortem examination. It was carried out on 2 March 2014 by A.V., a forensic medical expert and medical science candidate, and K., a pathologist-anatomist, PhD and professor.
18. In their report of 2 March 2014 the experts noted that the heart was missing (“probably removed in the course of the initial forensic medical examination”) and that they could only make hypothetical conclusions. They stated that in the absence of the heart it was impossible to establish precisely the cause of the fatal heart disorder. However, there were reasons to believe that it was most likely the result of an “extreme shaking impact”. It was therefore suggested that A. had died as a result of a violent death. The experts also noted that A. had a large haematoma in the area of the right lumbar region received shortly before his death.
19. The applicant learned from the STELS expert report that the heart had been removed from his son’s body.
C. Refusal of the applicant’s request for return of the removed heart
20. On 11 April 2014 the applicant was given access to the report prepared by the forensic medical experts from the Ministry of Defence. According to the record of his familiarisation with the report, he indicated his wish to lodge a request after having examined the report.
21. On 23 April 2014 he requested that the removed biological samples which had been kept after the initial forensic medical examination be returned to him by military investigating unit no. 519.
22. On the same day Investigator Ch. refused to grant the applicant’s request for lack of legal grounds. He noted that the applicant had not requested an additional or repeat forensic medical examination of A.’s corpse. Should such an additional or repeat examination be necessary, a lawful and reasoned decision would be taken to give an expert the remaining biological samples from the initial forensic medical examination.
23. On 23 June 2014 the applicant lodged a court appeal against the investigator’s decision.
24. On 21 July 2014 the Fifth Garrison Military Court, located in Yerevan, held a hearing with the participation of the military prosecutor’s office and R., the deputy head of military investigating unit no. 519. The court examined, in particular, correspondence from the head of branch no. 2 of Centre no. 111. It appears from the correspondence that the fragments of the internal organs, which remained after the initial forensic medical examination of A.’s corpse, as well as the heart (without the samples removed from it for the initial histological examination), had been stored in the histological archive of the organisation for potential additional forensic medical examinations, and required special conditions for their storage and transportation. According to order no. 346n of 12 May 2010 of the Ministry of Health Care and Social Development, which regulated forensic medical expert examinations in State institutions (“order no. 346n”), biological organs and tissue removed for forensic medical expert examinations had to be stored in special conditions for one to three years, or for a different duration fixed by the authority which had ordered the forensic medical expert examination.
25. The court noted that the applicant had not indicated the legal grounds and the purpose for the requested transfer, that it was therefore unclear what rights could have been violated by the investigator’s refusal. It further noted that the organs in question might be needed for additional forensic medical examinations, required special conditions for storage, and, if lost, could make it impossible to carry out a preliminary investigation in criminal proceedings, which would violate the rights of participants to such proceedings. For those reasons the court rejected the applicant’s appeal.
26. On 31 July 2014 the applicant appealed against the first-instance court’s decision. He argued that the entire heart had not been needed for the initial forensic medical expert examination; only fragments of it had been used. The court’s conclusion that the remnants of the heart without those fragments might be needed for additional forensic medical examinations had not been based on facts, as the fragments of the heart used for the initial examination had been stored and could be used for any additional examination.
27. On 25 August 2014 the applicant amended his appeal, stating that he had requested the transfer of the parts of the heart which had not been used for the initial expert examination (but had, however, been removed). He relied on his reading of order no. 346n, arguing that the investigator and the first-instance court had erred in applying the order with respect to the parts of the heart which had not been used for the initial examination, while the order had only been applicable in relation to the fragments of the heart which had been used for that examination.
28. He explained the purpose of his request for the return of the remnants of the heart. Firstly, the investigator’s refusal had deprived him of the possibility of obtaining an independent specialist’s opinion (мнение специалиста) regarding the cause of his son’s death and, hence, had deprived him of access to justice. Secondly, as a relative he had a right to have returned the removed parts of the body which had not been used for the forensic expert medical examination. The continued retention of the remnants of the heart in the forensic medical institution was causing him psychological suffering, was against his religious beliefs and deprived him of a right to comply with religious customs.
29. On 20 November 2014 the North-Caucasus Circuit Military Court, located in Rostov-on-Don, examined the applicant’s appeal in the presence of a military prosecutor, the applicant and his representative. It found the first-instance court’s decision lawful and well-reasoned, agreeing that there had been no legal grounds for granting the applicant’s request.
30. On 13 May 2015 a judge of the North-Caucasus Circuit Military Court dismissed the applicant’s application for a supervisory review of the lower courts’ decisions. Relying on order no. 346n, the judge held that all the organs removed for forensic medical expert examinations had to be stored in special conditions in a State forensic medical expert institution for one to three years or for a different duration fixed by the authority which ordered the forensic medical examination, and could not be returned to the relatives of the deceased during that period. It was open to the applicant to request an additional forensic medical expert examination of the biological samples removed from A.’s body in accordance with order no. 346n.
COMPLAINTS
31. The applicant complains under Article 2 of the Convention that there has been no effective investigation into his son’s death. The State’s retention of the heart removed from his son’s body has made it impossible for him to obtain an independent expert opinion about the cause of his son’s death. An independent expert could either confirm or disprove the opinion of the State forensic medical experts that his son died as a result of a heart disorder unrelated to the violence to which he had been subjected by K. immediately before his death. The applicant does not trust the experts from the Ministry of Defence because his son was carrying out his military service in that Ministry.
32. The applicant also complains that the State breached his right under Article 3 of the Convention not to be subjected to inhuman and degrading treatment. The removal of the heart from his son’s body was made without his consent and notification, and made it impossible for him to obtain an independent expert opinion about the cause of his son’s death and to bury his son’s body with the heart.
33. He claimed that the removal of the heart from his son’s body constituted an interference with his right under Article 8 of the Convention to respect for private and family life. He was neither given the possibility to object, nor was informed by the authorities of the removal. He was deprived of a right to bury his son’s body with the heart according to religious customs. The State’s interference was neither lawful nor necessary.
QUESTIONS TO THE PARTIES
1. Having regard to the procedural protection of the right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII), was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?
2. Is it open to the applicant, under domestic law and practice, to request that an additional medical examination of A.’s body and heart be carried out by (or at least with the participation of) experts of his choice, for example from a private expert institution?
3. Has there been an interference with the applicant’s right to respect for his private and family life, within the meaning of Article 8 § 1 of the Convention?
If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
4. Having regard to the investigating and judicial authorities’ decisions in the applicant’s case, were there provisions in domestic law for returning organs removed for a post-mortem forensic medical expert examination to a next of kin for inhumation with the body?
5. What is the time-limit for the storage of A.’s heart in branch no. 2 of the federal State institution Main State Centre for Forensic Medical Expert and Criminalistics Examinations no. 111 of the Ministry of Defence? Will it be returned to the applicant upon the expiration of the time-limit for storage?
6. Has the applicant been subjected to inhuman or degrading treatment in breach of Article 3 of the Convention?
7. The Government are invited to submit a copy of the following documents: court records of the hearings before the Fifth Garrison Military Court and the North-Caucasus Circuit Military Court, the investigator’s order for a forensic medical expert examination of 25 February 2014, the experts’ medical death certificate of 27 February 2014, and the record of the applicant’s familiarisation with the report of the forensic medical expert examination of 25 March 2014.
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