CASE OF LYALYAKIN v. RUSSIA
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Dmitry Dedov;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
5. The applicant was born in 1988 and lives in the town of Nizhniy Novgorod. 6. On 14 December 2006 the Military Conscription Committee of the Moscow District of the town of Nizhniy Novgorod examined the applicant’s medical condition. Having declared him fit, they conscripted him into the army. The applicant was given the rank of junior sergeant and sent to preparatory Military Unit no. 73864, located in the town of Kovrov in the Vladimir Region. 7. Six months later, on 28 May 2007, he was transferred to Military Unit no. 34605 of the town of Volgograd of the Volgograd Region. 8. The applicant submitted that personal relations among the servicemen of the unit were tense and violent. The applicant had panicked and decided to escape. 9. On 4 June 2007 the applicant and junior sergeant V. ran away from the unit. 10. The command of the unit launched a search operation to find the fugitives. 11. On the morning of 5 June 2007 deputy commander major A. and captain K. located and apprehended the applicant and junior sergeant V. close to the nearby village of Stepnoy. 12. According to the applicant, on their way back to the unit A. and K. had threatened to execute or drown them. The threats had frightened the applicant to such an extent that he decided to escape again. 13. During a stopover the applicant made another attempt to escape. Shortly thereafter he was caught in a nearby swamp. The escorting officers stripped him of his clothes and put him in the cargo compartment of a military truck which brought both fugitives back to the unit. 14. On 6 June 2007 the applicant and V. were brought before battalion commander Ch., who lined up the battalion. The applicant and V. ‒ allegedly stripped naked ‒ were made to stand in front of the other servicemen. It does not appear that there were any female service personnel present on this occasion. The Government submitted that the applicant and V. had been wearing military briefs. The battalion commander publicly condemned and reprimanded them. 15. Thereafter the applicant was brought to the commander’s office and was asked to prepare an explanatory note concerning the events of 4-6 June 2007. 16. The applicant stated that after he had drafted the explanatory note, the commander had ordered company commander lieutenant S. to load a machine gun with bullets, go outside and execute the applicant. The applicant was taken outside and placed up against a wall. Captain Kar. aimed a machine gun at him. The applicant pleaded for mercy and promised “to become the best sergeant in the unit”, whereupon Kar. brought him back into the commander’s office. At this moment the applicant heard a machine gun being discharged and thought that V. had just been executed. 17. Some time later the battalion commander ordered officer G. to dress the applicant in a military protection suit. The suit consisted of a mask, protective cloak, rubberized stockings and gloves and was unsuitable for continuous use in hot weather. The applicant’s fellow servicemen then shaved his head and warrant officer G. painted a five-pointed star on his head using brilliant green antiseptic. A fellow serviceman then delivered a few blows to the applicant’s body and head with an army belt buckle. Then another soldier put a leash around his neck and walked him around the training ground. The applicant was also threatened with sexual violence if he ever decided to escape again. 18. According to the applicant, the following night after lights-out junior sergeant S. and private soldier O. had removed the leash from his neck, attached him to a pole in the centre of the tent which served as their sleeping quarters, and made him read aloud the sergeant’s military manual, using a lighter and a pocket lamp for light. At around 2 a.m. the applicant was further intimidated by S., who told him that his friends in the town of Nizhniy Novgorod would find and rape him when his military service was over. 19. The applicant stated that the next morning he was again ordered to put on the military protection suit, the collar and the leash and escorted by junior sergeant Zh. for breakfast dressed in this way. He was then taken to the battalion commander. The applicant had asked him for permission to take off the suit, the collar and the leash. The commander said he could do so as soon as he had washed the star off his head. For the next two hours the applicant washed his head in a river flowing nearby, using only his hands and the sand. 20. On 7 June 2007 ‒ surveillance of the applicant having been relaxed ‒ he escaped and, this time, reached his family in the town of Nizhniy Novgorod. 21. According to the applicant, after his escape, the battalion commander Ch. had ordered his fellow servicemen to keep silent about the ill-treatment. 22. On 26 June 2007 the applicant complained of his ill-treatment to the Soldiers’ Mothers Committee of the Nizhniy Novgorod Region («Нижегородский областной комитет солдатских матерей»). 23. On 27 June 2007 the applicant complained to the Military Prosecutor’s Office of the Nizhniy Novgorod Garrison (“Nizhniy Novgorod Prosecutor’s Office”) about his ill-treatment in the Military Unit. In his claim he provided an account of the alleged events, stating that his fellow servicemen Vl., Kats., Zai., Ryb., Mal. and Fed. could confirm the facts of his ill-treatment and “hazing”. 24. The Nizhniy Novgorod Prosecutor’s Office opened a preliminary inquiry into his allegations and held that the applicant should be transferred to another military unit pending the outcome of the proceedings. 25. On 28 June 2007 the Nizhniy Novgorod Prosecutor’s Office ordered an expert psychiatric examination of the applicant. 26. The expert examination of the applicant was conducted between 4 and 26 July 2007 in Psycho-Neurological Hospital No. 1 of the Nizhniy Novgorod District. 27. On 21 August 2008 the Military Medical Commission of the Nizhniy Novgorod Garrison diagnosed the applicant with “a personality disorder of the emotional unstable type, with variable amelioration, contracted during his military service” and held that he was “fit with restrictions” for military service. 28. Owing to the above diagnosis, the applicant was prematurely discharged from the army. 29. The Nizhniy Novgorod Prosecutor’s Office joined the inquiry proceedings into the applicant’s complaints of 26 June 2007 with the inquiry into similar complaints by junior sergeant V. dated 1 July 2007. The case was then sent for investigation to the Military Prosecutor’s Office of the Volgograd Garrison (“Volgograd Prosecutor’s Office”). 30. On 16 July 2007 an investigator of the Volgograd Prosecutor’s Office issued a refusal to open a criminal case. In this decision it referred to statements given by the alleged perpetrators, including the battalion commander Ch., deputy commanding officer major A., captain K., lieutenant S., captain Kar., warrant officer G. and junior sergeant Zh., and to the statements of other servicemen who had been questioned concerning the applicant’s allegations. The refusal reads: “In the course of the inquiry carried out into [the applicant’s] request, the investigating authorities have established the following: Junior sergeant [V.] claimed that the complaints of 26 June and 1 July 2007 concerning ill-treatment were false. No acts of ill-treatment against him or [the applicant] had taken place either in the period under examination (6 and 7 June 2007) or during their military service in the [Military Unit]. He did not see any injuries such as scratches, bruises or haematomas on [the applicant’s] body. According to junior sergeant [V.], [the applicant] gave the false statements so as to avoid criminal liability for the unauthorised leave from the [Military Unit] on 4 June 2007. In private conversations [the applicant] had often remarked that he did not want to serve in the army. The simulation of psychiatric problems and the false statements about illtreatment are in the junior sergeant’s opinion no more than a means of avoiding military service. During questioning the latter also stated that [the applicant] had no psychiatric problems and that during his military service he had not shown signs of any unusual behaviour. Junior sergeant [V.] also stated that on 1 July 2007 during his stay in hospital he had been contacted by [two] representatives of a Russian NGO, “Mothers’ Right” (“Материнское право”). They showed him [the applicant’s] statements of 26 June 2007 and promised to assist with his transfer to a military unit in his place of residence in exchange for giving similar statements capable of confirming [the applicant’s] allegations. As he very much wanted to perform his military service close to his home in the Kaliningrad Region, he accepted their offer. Later he realised that it was a mistake, because he had no intention of slandering anybody. He explained that all the facts mentioned in his [complaints] of 1 July 2007 were false. Neither he nor [the applicant] had been ill-treated by their fellow servicemen. To confirm his statements he presented the business card which the [NGO representative] had given to him ... The battalion commander [Ch.] stated that the allegations of ill-treatment mentioned in the statements of 26 June and 1 July 2007 were false. He further stated that he had not seen any scratches, bruises or haematomas on [the applicant] or junior sergeant [V.]. Moreover, they had not lodged any complaints about the illtreatment allegedly committed by the servicemen of the [Military Unit]. According to the battalion commander [Ch.], [the applicant] had made up the allegations either to avoid criminal liability for the unauthorised leave from the [Military Unit] on 4 June 2007, or to avoid military service by way of falsification of his mental problems. He noted that [the applicant] was of sound mind and that he had never shown signs of any unusual behaviour. The battalion commander [Ch.] speculated that [the applicant] simply did not want to continue his military service because it was so hard. According to [Ch.], only negative references could be provided on account of [the applicant’s] personality. For instance, [the applicant] had left his place of service several times without the authorisation of his superiors. Although he followed the orders of his commander, he required constant supervision. He was a sly and dodgy person, who did not understand the meaning of his military duty. During private conversations [the applicant] expressed his intention of leaving the [Military Unit]. Deputy commanding officer major [A.], captain [K.], lieutenant [S.], captain [Kar.] and warrant officer [G.] gave statements which were essentially similar to the statements of the battalion commander [Ch.]. During the inquiry the investigative authorities also questioned [Kats., a witness on the applicant’s behalf]. He stated that [the applicant’s and V.’s] statements of 26 June and 1 July 2007 had been false and that [the applicant] had given them to avoid criminal liability for the unauthorised leave from the [Military Unit] on 4 June 2007. He also stated that between 20 November 2005 and 27 May 2007 he had served with [the applicant] in the military unit of the Town of Kovrov of the Vladimir Region. During this period [the applicant] ‒ without permission ‒ left the military unit for two weeks. Later, he returned of his own volition and explained that he did not like serving in the army. According to [the applicant’s] confession, he returned only because of his father, with whom he had had an argument [on account of his refusal to serve in the army]. [The applicant] was a smart, sly and a dodgy person who was able to avoid military service by making up a good and credible excuse. [Kats.] stated that [the applicant] was a mentally sound person who did not show signs of unusual behaviour. [The applicant] showed a negative attitude towards his military duty and was an irresponsible person who did not like to work. He did not carry out his commander’s orders promptly and always needed to be under supervision. In private conversations he mentioned that he wanted to leave military service and go to the town of Sochi to earn some money. The [applicant’s and junior sergeant’s V.’s] fellow servicemen [Mal., Ryb., Zai., Fed., Ost., and junior sergeant Zh.], who were separately interviewed by the investigator, gave similar statements. From the above it is apparent that [the allegations of the applicant and junior sergeant V.] ... remained unconfirmed ... Accordingly, the request to institute criminal proceedings should be dismissed owing to the absence of the alleged criminal offences...” 31. With assistance from the NGO “Mothers’ Right”, the applicant challenged the decision of 16 July 2007 before a higher authority. The appeal claim was supported by statements made by his fellow serviceman Gal., who in written submissions dated 26 July 2007 confirmed the applicant’s allegations and stated that all the soldiers of the Military Unit had been intimidated by the battalion commander Ch., who forbade them to give true statements, and by warrant officer G., who threatened the witnesses concerned. 32. On 20 September 2007 the Military Prosecutor’s Office of the North-Caucasus Military Circuit quashed the decision of 16 July 2007. Without citing specific shortcomings, it stated that the investigator’s conclusions had been baseless. In its relevant part this decision reads: “On 14 September 2007 [the lawyer of the NGO Mothers’ Right] appealed against the decision of 16 July 2007. Examination of the appeal statements has shown that the [investigator from the Volgograd Prosecutor’s Office] did not perform a thorough inquiry. Accordingly, his decision must be quashed as ill-founded. ... From the case file it is apparent that the circumstances ... surrounding [the apprehension of the applicant] and junior sergeant [V.] by deputy commanding officer major [A.] and captain [K.] after their escape from [the Military Unit] and the subsequent ill-treatment [of the fugitives] were not sufficiently established. Consequently, the reasoning underlying the decision of 16 July 2007 is deficient. From the above it is apparent that [the investigator’s] conclusion that the [applicant’s] complaints of ill-treatment in respect of him and [V.] lacked a sound basis and was premature. Accordingly, the decision of 16 July 2007 is groundless.” 33. In the context of the second round of the inquiry, the investigator conducted additional interviews with junior sergeant V., the battalion commander Ch., commanding officer major A. and captain K. regarding the applicant’s apprehension, undressing, and delivery to the Military Unit. Their additional statements were summarised as follows: “During the additional interview with junior sergeant [V.], the latter explained that on the day following his unauthorised leave on 4 June 2007, commanding officer major [A.] and captain [K.] had apprehended them near Stepnoy, put them in a Ural truck, and brought them back to the [Military Unit]. On their way to [the Military Unit] [the applicant] asked [V.] to escape with him, but the latter refused. [The applicant] attempted to escape on his own, but was arrested by the escorting officers. After the unsuccessful attempt to run away, commanding officer major [A.] ordered them to take all their clothes off. They remained only in military briefs. This order was given to prevent their attempts to abscond. These events took place during the summer, and so he felt comfortable wearing only military briefs, and his human dignity was not humiliated. His statements of 1 July 2007 had been drafted following a sample prepared by [the applicant] and contained the false allegation that they had been standing completely naked... During his additional interview, battalion commander [Ch.] stated that on 6 June 2007 between 2 and 4 p.m. he had lined up his battalion. At this time the escorting officer brought [the applicant] and junior sergeant [V.] to him. On 4 June 2007 they had left the [Military Unit] without permission and were later arrested near the village of Stepnoy. The escorting officers stated that after the arrest [the applicant] and [junior sergeant V.] had been undressed and left with only their military briefs on. This was done to prevent them from fleeing. After this, the battalion commander [Ch.] had ordered the [applicant] and junior sergeant [V.] to put their clothes back on. He talked to the fugitives and reprimanded them. During the additional interview with commanding officer major [A.], the latter confirmed that [the applicant] and [V.] had been brought onto the site of [the Military Unit] wearing only military briefs. After their arrival they had been made to stand in front of their battalion formation. The commanding officer had ordered them to put their clothes back on and had talked to them. [The applicant] and [V.] were reprimanded. When questioned further, captain [K.] noted that on 6 June 2007, after the arrest of [the applicant] and [V.] near the village of Stepnoy, [the applicant] had attempted to abscond. After this [the applicant] had been caught by the escorting officers, who ordered him to adopt “position no.1”, i.e. to take all of his clothes off and remain only in military briefs...” 34. On 8 October 2007, having regard to the above statements and evidence previously obtained, the investigator refused to open a criminal case to examine the applicant’s allegations. He confirmed his previous findings about the lack of criminally punishable offences. As regards the episodes of the applicant’s undressing, the investigator reasoned as follows: “There is no indication of any criminal offence under Article 286 § 1 of the Criminal Code of Russia [“Abuse of power”] in the actions of [K.], [A.] and [Ch.] ..., because the order given to [the applicant] and junior sergeant [V.] to remove their clothes was issued solely with a view to preventing their escape. The commander of the battalion had not humiliated [the applicant] when making him stand wearing only military briefs in front of the battalion formation because later the commander had ordered him to put all his clothes back on. [The applicant] was standing half-naked in front of the battalion formation for a short period of time. The actions of captain [K.] and commanding officer [A.] constituted a minor offence, which entailed no social danger. Accordingly, [the applicant’s] request to institute criminal proceedings against them should be dismissed. The circumstances of the present case do not indicate any appearance of a criminal offence [within the meaning of the Criminal Code of Russia].” 35. On 11 February 2008 the applicant’s lawyer challenged the decision of 8 October 2007 in court. 36. On 6 October 2008 the impugned decision was quashed by the Investigating Committee of the Prosecutor’s Office of the Volgograd Garrison, which held the following: “The examination of the impugned decision shows that [the investigator] performed the inquiry in a perfunctory manner. His decision was premature and ill-founded. In particular, he did not interview all of the potential witnesses. It is accordingly impossible to render a well-founded decision concerning the impugned ... events. Taking into account the above I conclude that the refusal to institute criminal proceedings issued by [the investigator] on 8 October 2007 must be quashed as illfounded.” 37. On 7 October 2008 the District Court referred to the decision of 6 October 2008, having terminated court proceedings in connection with the applicant’s complaint. 38. The case was returned for additional investigation. 39. Between 6 and 16 October 2008 the investigator questioned thirty servicemen from the Military Unit. They did not confirm any of the applicant’s allegations. 40. On 16 October 2008 on the basis of their statements and the previously collected pieces of evidence, the investigator refused to institute criminal proceedings. The investigator did not provide the content of the newly added statements in his decision of 16 October 2008 and it therefore contained no additional information on the matter but essentially read the same as the previous one. 41. According to the applicant, he received a copy of this decision on 25 February 2009 and then challenged it in court. 42. On 10 March 2009 the impugned decision was quashed by a higher investigative authority, which stated that “Although the inquiry was performed in a comprehensive manner, the investigator did not take into account the public reaction [in response to this case]. He should have ordered the military counter-intelligence services to perform an inquiry into the allegations [of the applicant and V.]. [Accordingly], the impugned decision is premature and ill-founded. Taking into account the above, I conclude that the refusal to institute criminal proceedings issued on 16 October 2007 must be quashed as ill-founded.” 43. The court proceedings were terminated and the case was sent back to the investigating authorities for further investigation of the matter. 44. During this round of the investigation the investigator performed an “additional inquiry” which “confirmed the statements made by [the applicant’s] fellow servicemen”. 45. On 20 March 2009 the investigating authorities again refused to open a criminal case in respect of the events. In addition to the reasoning which they had used before, they relied on the results of the “additional inquiry” which had established “no indication of criminal events”. 46. On 20 April 2009, after his military service was over, junior sergeant V. contacted the Soldiers’ Mothers Committee and stated that the initial statements he had made concerning his ill-treatment and the illtreatment of the applicant had been truthful. He explained that his later statements had been made under pressure from the command of the Military Unit. In his statements he mentioned that after the escape of June 2007 he had been beaten by the officers and had been kept in hospital for treatment in this connection. These statements were sent to the investigating authorities. 47. On 26 January 2011 the higher investigating authorities quashed the decision of 20 March 2009, providing a detailed list of the established defects of the inquiry. In its relevant part the decision read: “Despite the recommendations of [the higher authority] ordering the military counter-intelligence services to conduct an inquiry into the allegations of the [applicant] and [V.], the decision of 20 March 2009 was issued in the absence of such an inquiry. According to the claim which was brought [by the applicant] under Article 125 of the CCrP, [Gal.] and [V.] had directly witnessed the alleged ill-treatment. However, the competent authorities did not conduct a fresh interview with [V.] and never interrogated [Gal.]. The inquiry at issue was not comprehensive since the investigating authorities did not investigate [V.’s] alleged ill-treatment ... of 2007 ... In the circumstances of the present case it is impossible to issue a lawful decision with proper reasoning without taking additional investigative steps, including the conduct of an inquiry carried out by the military intelligence services and the questioning of [Gal.], [V.] and doctors attached to the military units. The investigating authorities must also assess the allegations which were made by [V.], and [the applicant] in their statements of 20 April 2009 and 11 February 2008 respectively. The former servicemen of the [Military Unit] should be re-interviewed too, if necessary.” 48. The case was remitted to the investigator for an additional investigation. 49. In the context of this round, the competent authorities studied the evidential material from an inquiry which had been opened into Gal.’s allegations that officers who were pointed out by the applicant had illtreated and “hazed” him and other serviceman of the Military Unit on several occasions. This inquiry resulted in a decision dated 8 October 2008 not to open a criminal case. 50. It does not seem that the investigative authorities questioned Gal. or complied with any of the recommendations set out in the decision of 26 January 2011. 51. In their decision of 11 February 2011 not to open a criminal case, they repeated their previous arguments, adding that the allegations made by Gal. were refuted by the results of the investigation of 2008. 52. The parties did not provide any documents concerning subsequent developments. From the Government’s submissions of 2 May 2011 it is apparent that on 23 March 2011 the higher investigating authorities again quashed the decision of 11 February 2011 and remitted the case for additional investigation, noting that the investigator had again failed to question Gal., to conduct an additional interview with junior sergeant V., to perform an inquiry into V.’s medical treatment of 2007 and to carry out other investigative actions. 53. The case file contains no information concerning the further development of the investigation.