Last Updated on May 11, 2020 by LawEuro
THIRD SECTION
DECISION
Application no. 64774/09
Gennadiy Rasimovich NASIBULLIN
against Russia
The European Court of Human Rights (Third Section), sitting on 7 January 2020 as a Committee composed of:
Georgios A. Serghides, President,
Erik Wennerström,
Lorraine Schembri Orland, judges,
and Stephen Phillips,Section Registrar,
Having regard to the above application lodged on 17 November 2009,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Gennadiy Rasimovich Nasibullin, is a Russian national, who was born in 1961 and lives in Izhevsk. He was represented before the Court by Mr R.K. Akhmetgaliyev, a lawyer practising in Kazan.
2. The Russian Government (“the Government”) were initially represented by Mr G. Matyushkin, the former Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
3. The applicant was born in 1961 and lives in Izhevsk, in the Republic of Udmurtiya.
4. On 27 June 2005 the applicant’s son, A.N., was conscripted into compulsory military service. He served in military unit no. 39986.
5. Psychological tests that A.N. took before his military service assigned him to category “2K”, which meant that there were “insignificant limitations on [his] carrying out combat roles, and garrison and sentry duties”. Two subsequent psychological tests indicated that A.N. was not a suicide risk.
6. On 8 December 2006 at 1.20 a.m. A.N. was found hanging from a noose made from a belt. A doctor attempted to resuscitate him, but was unsuccessful.
7. Later that day a criminal investigation into the offence of incitement to suicide was initiated. A report on the examination of A.N.’s body revealed that there was a strangulation mark on the neck and no other injuries. An on-site inspection found that there were no traces of a fight having taken place or a body having been dragged along on the snow. On 9 December 2006 experts performed a forensic medical examination of A.N.’s body. The relevant report confirmed that there were no injuries other than the strangulation mark on the neck.
8. The investigator questioned a number of witnesses. The doctor who had tried to resuscitate A.N. stated that on 7 December 2006 she had checked his health and he had had no injuries. During the resuscitation attempt she had also seen no injuries other than the marks of the belt on his neck.
9. Fellow conscripts close to A.N. stated that he had been negatively affected by a break‑up with his girlfriend, and had become sad and distant.
10. Lt. Colonel T., the military unit’s psychologist, stated that he had had regular discussions with A.N. prior to his carrying out sentry duties (something he had done two or three times each month). According to Lt. Colonel T., A.N. had had no complaints and had shown no signs of depression.
11. Lt. Colonel Z., the vice-commander of the military unit in charge of education, noted that on several occasions he had asked A.N. about his situation at home, but the latter had denied having any problems. Lt. Colonel Z. thought that A.N. had been keeping something back.
12. On 9 January 2007 the experts concluded that A.N. had died from mechanical asphyxia caused by hanging.
13. On 30 January 2007, in their report, the psychologists held that A.N. had been suffering from a temporary adjustment disorder for nine months before his death.
14. On 7 February 2007 the investigator issued a document on measures to be taken by the military command to eliminate the factors which had contributed to A.N.’s suicide. He considered that A.N.’s senior officers had failed to properly evaluate his personality and psychological state, and had failed to take any preventive measures.
15. After the criminal case was reopened on one occasion, on 2 August 2007 it was closed for lack of corpus delicti. The decision closing the case relied on the records of the on-site inspection, the inspection of A.N.’s body, the forensic examination reports, the psychological report, and a report on a graphological examination of A.N.’s correspondence. It also relied on the statements of senior officers, including Lt. Colonel Z. and Lt. Colonel T., and those of fellow conscripts from A.N.’s division, A.N.’s parents and four of his childhood friends. The investigator concluded that A.N. had committed suicide because of the break-up of his relationship, his subsequent temporary adjustment disorder, and prolonged depression.
16. On 28 April 2008 the applicant requested that a criminal case be opened against the senior officers and the psychologists of military unit no. 39986, who for nine months had failed to recognise A.N.’s suicidal tendencies and provide him with proper assistance.
17. On 26 June 2008 an investigator refused to grant the applicant’s request. He found no evidence that the senior officers and the psychologists of the military unit had failed to comply with their duties in respect of A.N. He relied on the witness statements of the military unit’s psychologists and the psychological report of 30 January 2007. According to the unit’s psychologists, A.N. had undergone tests and obtained good results, and it had been declared that there was no risk of him committing suicide. He had had no permanent disorders and had showed no signs of depression, such as talking about suicide, giving his belongings away, producing suicide-related drawings, searching the Internet for ways to commit suicide, and so on. Owing to these circumstances, additional attention for A.N. had not been deemed necessary. One of the psychologists had written to A.N.’s parents, asking them to fill in a form seeking information about their son’s personality, but had never had the form back. Neither A.N. nor his friends had ever mentioned his relationship problems to any of the senior officers or the psychologists.
18. The applicant contested the investigator’s refusal before a court. On 30 March 2009 the 101 Garrison Military Court (“the Garrison Court”) dismissed his action. The Garrison Court found: that the senior officers and the psychologists had properly monitored A.N.’s psychological state; that A.N. had had all the necessary tests; and that he had obtained good results and had not presented a suicide risk. Each time A.N. had carried out sentry duties, prior to his carrying out his duties, the senior officers and the psychologists had also assessed his psychological state; he had not appeared to have any suicidal tendencies. On 18 May 2009 the Third Circuit Military Court upheld the judgment on appeal, endorsing the reasoning of the Garrison Court.
COMPLAINTS
19. The applicant complained under Article 2 of the Convention that the senior officers and the psychologists of A.N.’s military unit had failed to recognise A.N.’s suicidal state and provide him with proper assistance. He also complained about the refusal to investigate the failure of the senior officers and the psychologists of A.N.’s military unit to take steps to safeguard the life of his son. The relevant part of Article 2 of the Convention provides as follows:
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
…”
THE LAW
20. The applicant asserted that, for the following reasons, the military authorities should have recognised that his son had been suicidal but had failed to do so. Firstly, the psychological assessment of A.N. carried out after his death had established that he had suffered from a temporary adjustment disorder for about nine months. Secondly, A.N. had undergone full psychological tests only twice during his military service, the most recent test had taken place almost six months before his suicide. Other psychological assistance had been perfunctory and had only involved discussions with A.N. Although the applicant’s son had denied having any problems, his senior officers had known that he was a reserved person, and should have tried some alternative methods of psychological assistance. Other soldiers had noted a change in his behaviour, and that he had become sad and distant. The applicant also relied on the investigator’s document of 7 February 2007, according to which the military officers had failed to identify A.N.’s psychological difficulties. Furthermore, A.N. had been assigned to category “2K”, which meant “insignificant limitations on [his] carrying out combat roles, and garrison and sentry duties”. However, he had been on sentry duty on 8 December 2006, when he had committed suicide.
21. The applicant considered that the investigation into his son’s suicide had not been thorough and prompt. The investigating authorities had only opened a criminal investigation into the offence of incitement to suicide, but they had not investigated the inadequate psychological assistance given to A.N. until the applicant’s request of 28 April 2008. The ensuing inquiry had also been inadequate, as it had not resolved inconsistencies between the statements of witnesses and psychologists, and had not assessed the perfunctory nature of the psychological assistance given to A.N.
22. The Government submitted that according to psychological tests, the applicant’s son had not shown any suicidal tendencies. A psychologist had examined all servicemen carrying out sentry duties, including A.N. There had been no evidence to indicate that there was a risk that A.N. would commit suicide.
23. The Government further submitted that the investigation into A.N.’s death had been effective. The criminal case had been closed as no corpus delicti had been established. The investigation had concluded that A.N. had committed suicide in the context of a temporary adjustment disorder, owing to the break-up of his relationship. The conclusion had relied on inspections of the scene of the incident and the deceased’s body, statements of servicemen, and forensic examinations. The investigator had also examined the actions of the senior officers. He had found that the obligations to perform psychological testing and ensure further monitoring had been complied with. The information about the break-up of A.N.’s relationship had been known only to his closest friends, and it had not been brought to the attention of the senior officers. Therefore, the Government believed that they had complied with the positive and procedural obligations under Article 2 of the Convention.
24. The Court has to examine whether the authorities knew or should have known of the existence of a real and immediate risk that A.N. would commit suicide, and, if so, whether they did all that could reasonably have been expected of them to avoid that risk materialising (see Malik Babayev v. Azerbaijan, no. 30500/11, § 67, 1 June 2017).
25. During his military service, over the course of a year and a half the applicant’s son underwent psychological tests at least twice, and those tests revealed no risk of suicide (compare Tikhonova v. Russia, no. 13596/05, § 74, 30 April 2014). Discussions with the psychologist and senior officers, including discussions before A.N. carried out sentry duties, also did not indicate that there was a risk. The post-mortem psychological report indicated that A.N. had had only an adjustment disorder, but not that there had been a risk of suicide.
26. The applicant’s son was assigned to category “2K”, which meant that there were “insignificant limitations on [his] carrying out combat roles, and garrison and sentry duties”, yet the parties did not provide an explanation as to what exact limitations that category implied. The facts indicate that the applicant’s son regularly carried out sentry duties two or three times each month (see paragraph 10 above). Thus, it cannot be said that he was completely prohibited from carrying out sentry duties or was assigned to them in breach of expert recommendations (compare Chember v. Russia, no. 7188/03, § 56, ECHR 2008).
27. Furthermore, A.N. did not ask for psychological assistance and did not inform the senior officers about any complaints or difficulties. Even if his behaviour changed, it appears that there were no particular instances which could have alerted the military authorities to the fact that that change was so radical as to endanger his life. The Court reiterates that in this type of case, the unpredictability of human conduct must not be ignored, and the State’s positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities (see, as a recent authority, Malik Babayev, cited above, § 74). In the circumstances, there is no sufficient evidence for the Court to conclude beyond a reasonable doubt that the authorities knew or ought to have known of the existence of a real and immediate risk to A.N.’s life (see Tikhonova, cited above, § 75). The Court therefore finds that the particular circumstances leading to A.N.’s death were not foreseeable to the domestic authorities. Thus, no obligation to take operational measures to prevent a risk to life arose in the present case.
28. As for the effectiveness of the investigation into A.N.’s death, the Court notes that the applicant was mostly dissatisfied about there being no criminal prosecution of psychologists and senior officers from A.N.’s military unit. However, other than that, he did not indicate any particular omissions or deficiencies which could have rendered the investigation inadequate (see Baklanov v. Ukraine, no. 44425/08, § 88, 24 October 2013).
29. The Court reiterates that where a positive obligation to safeguard the life of persons in custody or in the army is at stake, the system required by Article 2 must provide for an independent and impartial official investigation that satisfies certain minimum standards as to effectiveness. In such cases, the competent authorities must act with exemplary diligence and promptness, and must, of their own motion, initiate investigations capable of, firstly, ascertaining the circumstances in which the incident took place and any shortcomings in the operation of the regulatory system and, secondly, identifying the State officials or authorities involved. The requirement of public scrutiny is also relevant in this context (see, for instance, Marina Alekseyevav. Russia, no. 22490/05, § 126, with further references, 19 December 2013). However, Article 2 does not entail the right for an applicant to have third parties prosecuted or sentenced for a criminal offence, or an absolute obligation for all prosecutions to result in conviction or a particular sentence (see Öneryıldız v. Turkey [GC], no. 48939/99, § 96, ECHR 2004‑XII).
30. In the present case, the authorities immediately opened a criminal investigation into A.N.’s death, questioned a significant number of witnesses, and obtained relevant forensic examinations. The investigation established no elements of a criminal offence in the circumstances of A.N.’s death, and the case was closed about eight months after being initiated. Thus, the investigation was sufficiently prompt. It established the relevant facts, and there is no reason to doubt the conclusions which it reached. There is no reason to question the independence of the investigation either. It appears that the applicant had no issues in accessing the material of the criminal investigation. At his request, the authorities carried out an additional inquiry into the quality of the psychological assistance provided to his son. Even though the investigator drew the attention of senior officers of A.N.’s military unit to certain deficiencies in the psychological assistance given to servicemen (see paragraph 14 above), there is nothing to indicate that those deficiencies could have constituted a sufficient basis for establishing their criminal liability.
31. Based on the foregoing, the Court concludes that the investigation into A.N.’s death was effective.
32. In view of the above, the Court finds that the applicant’s complaints under Article 2 of the Convention are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 30 January 2020.
Stephen Phillips Georgios A. Serghides
Registrar President
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