Kayankin v. Russia

Kayankin v. Russia, App. No. 24427/02, Eur. Ct. H.R. (2010).
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The applicant, a Russian citizen, appeared before a military medical commission for a preliminary health assessment prior to being drafted to the Russian military. The commission diagnosed the applicant with hypotrophy of unknown genesis and declared him temporarily unfit to serve in the military. Six months later, the commission reexamined the applicant and found him fit for service without restrictions. Subsequently, the applicant was drafted to the army, where he claimed he was beaten up and harassed by senior draftees who sporadically denied him food and made him sleep outdoors. The applicant also claimed that the head of the military headquarters had hit him in the head with an artillery gun shell and that a group of senior conscripts beat the applicant up a month later. The applicant subsequently left the military base without authorization and sought further psychological and neurological examinations at a research institute, which diagnosed the applicant with organic brain disease. However, the diagnosis did not link the trauma to the applicant’s treatment in the military specifically, but instead suggested that head injuries throughout the applicant’s childhood and young adult life contributed to the diagnosis. After a military hospital discovered further evidence of neuroinfection, the military discharged the applicant.

The applicant instituted in a Town Court a tort action against the district drafting military commission that had conscripted him, claiming that the district military board’s decision to draft him had been unlawful due the fact that he had been seriously ill. After significant delays resulting, among other reasons, from the failure of the defendant to appear at proceedings and the retirement of the judge assigned the case, the Town Court dismissed the claims as ill-founded. The Leningrad Regional Court affirmed that judgment. Separately, a military prosecutor instituted criminal proceedings against the officer accused of hitting the applicant, but the criminal proceeding was discontinued when it was discovered that there was not sufficient evidence to support the applicant’s claim that he sustained physical injuries or neurological trauma as a result of the officer’s treatment. The applicant then filed a claim in the European human rights system, alleging that his conscription for military service and his beatings had both constituted separate instances of “inhuman and degrading treatment” in violation of Article 3 of the European Convention of Human Rights (Convention). In addition, the applicant asserted that the length of his tort proceedings had violated the “reasonable time” requirement of Article 6 of the Convention.

The European Court of Human Rights (ECHR) concluded that neither the applicant’s conscription, nor his treatment in the military, constituted “inhuman and degrading” treatment under Article 3 of the Convention. According to the ECHR, state authorities have the liberty to determine the standards of health and fitness of conscripts, though that responsibility is limited by a duty not to conscript those who are ineligible for military service based on health grounds. In the instant case, the evidence did not support the applicant’s claim that medical examinations and his determination of eligibility were carried out in a negligent manner. In particular, the commission was not required to have authorized an in-patient medical examination, which would have been necessary to detect the applicant’s organic brain illness. Furthermore, the ECHR did not find a violation of the applicant’s Article 3 rights on account of the beatings alleged to have occurred during his military service. In this regard, the ECHR noted that none of the four expert evaluations carried out subsequent to the alleged beatings discovered any trace of physical violence during his military service.

However, the ECHR found that the length of the tort proceedings did in fact violate his right to a hearing “within a reasonable time” under Article 6, section 1 of the Convention. The ECHR specifically noted that the length of scheduling delays, as well as the Town Court’s consistent failures to discipline State authorities for failing to present evidence and appear for proceedings and the fact that the court took over a year to obtain evidence for the proceeding.

“87. The Court accepts that it is generally for a State to determine the standards of health and fitness for potential conscripts, having regard to the fact that the role of the armed forces differs among States. However, conscripts should be physically and mentally equipped for challenges related to the particular characteristics of military life and for the special duties and responsibilities incumbent on members of the army. While completing military service may not be in any way overwhelming for a healthy young person, it could constitute an onerous burden on an individual lacking the requisite stamina and physical strength owing to the poor state of his health. Accordingly, given the practical demands of military service, States must introduce an effective system of medical supervision for potential conscripts to ensure that their health and well-being would not be put in danger and their human dignity would not be undermined during military service (see, mutatis mutandis, Taştan, cited above, § 30). State authorities, in particular drafting military commissions and military medical commissions, must carry out their responsibilities in such a manner that persons who are not eligible for conscript military service on health grounds are not registered and consequently admitted to serve in the army.” Page 29.

“107. The Court reiterates that where an individual raises an arguable claim that he has been seriously ill- treated in breach of Article 3, that provision, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. An obligation to investigate “is not an obligation of result, but of means”: not every investigation should necessarily be successful or come to a conclusion which coincides with the claimant's account of events; however, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible. Thus, the investigation of serious allegations of ill-treatment must be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence, and so on. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard (see, among many authorities, Assenov and Others v. Bulgaria, 28 October 1998, §§ 102 et seq., Reports 1998-VIII).” Page 36.

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