CASE OF BAKLANOV v. UKRAINE
Preliminary objection joined to merits (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection not necessary to examine (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger
7. The applicant was born in 1985 and lives in Gorlivka in the Donetsk region. 8. 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. 9. 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). 10. 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. 11. 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). 12. 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. 13. 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. 14. On 19 April 2004 the applicant was discharged from the military hospital and from the army. 15. 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. 16. 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. 17. The applicant was granted a disability pension in the amount of 310 Ukrainian hryvnias (UAH) per month (then the equivalent of about fifty euros). 18. 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. 19. 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. 20. 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). 21. 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. 22. On an unspecified date, the Southern Region Military Prosecutor quashed the aforementioned decision and ordered an additional investigation. 23. 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. 24. 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. 25. As to the denial by the doctors of any injuries on the applicant at the material time, he contended that they had lied. 26. 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. 27. 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. 28. 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). 29. 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. 30. 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. 31. 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. 32. 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. 33. 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. 34. 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.” 35. 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. 36. On 20 February 2008 the Kalyninskyy Court rejected the applicant’s claim, finding that he had already received all payments he was entitled to. 37. 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). 38. On 14 July 2011 the Higher Administrative Court upheld the lower courts’ decisions. 39. The relevant provisions of the Constitution read as follows: “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. ...” “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. ...” 40. 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. 41. 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.