Published on 19 July 2021

FOURTH SECTION

Application no. 1718/21 A.P. against Austria lodged on 22 December 2020 c ommunicated on 28 June 2021

SUBJECT MATTER OF THE CASE

The application concerns the death of the applicant ’ s son (T.P.) during his mandatory military service.

In the early afternoon of 3 August 2017, T.P. participated in a heat march ordered by army superior K.K. As the temperature was reaching up to 37 degrees Celsius, K.K. granted alleviations to the marching gear (which nonetheless weighed almost 25kg). The participants were seemingly asked whether they felt fit. Extra water and fruit were also given out. Another 14 servicemen participated in the same marching group and were questioned after T.P. ’ s death, corroborating the following: about 3.5 km into the march in direct sunshine, T.P. complained that his feet and skin were burning and that he could not walk any further. His fellow servicemen and group commander A.W. animated him to continue (according to one witness, A.W. repeatedly shouted at T.P. to get up). No medics were present. After a 10-minute break, the group continued for a short while, after which T.P. again laid down on the ground, pleading that he could not go on and needed a doctor and asking A.W. why he did not believe him. A.W. told the other servicemen to stand around T.P. to provide him with shade and to sprinkle him with water to cool him down. First T.P. thought he was being spit at (indicating a degree of confusion). Then he suddenly got up, walked a few meters and said, “let ’ s go on”, after which he collapsed again.

When, at 14:19h, A.W. realised that T.P. was not feigning, he called his superiors M.G. and M.R., who arrived at 14:45h in a car to pick up T.P. to take him back to the barracks where an army medic was present. On the way there, T.P. collapsed in the car. He was not responsive anymore when the car arrived at the barracks at about 15:05h. The medic pulled him out of the car, laid him down on the ground and checked his blood pressure. Apparently, at first, other servicemen were asked to bring a table to provide shade for T.P., but the army medic told them to remove it again as it was hindering his first aid measures. An ambulance arrived at 15:07h. The medical staff found T.P. lying on the hot asphalt in the bright sun, with a body temperature of over 43,5 degrees (too high to measure). They took first aid measures and tried to cool T.P. and immediately took him to the next hospital where they arrived at 15:29h. T.P. was intubated and put in intensive care where his circulation collapsed. He was resuscitated unsuccessfully for one hour and proclaimed dead at 17:13h.

An expert for forensic medicine, Dr D., conducted an autopsy, concluding that the cause of death was heart failure due to overheating of T.P. ’ s body in conjunction with an acute septic inflammation (two different bacteria were found in his blood), and that it had not been possible for others to recognise the bacterial infection up to the point where T.P. collapsed, as he had not voiced feeling unwell or ill before.

Both the Public Prosecutor ’ s office and the army instituted investigations into T.P. ’ s death under Sections 80 and 81 of the Criminal Code (negligent and grossly negligent manslaughter) and Section 33 § 1(2) of the Military Criminal Code (neglect of the duty of care by superiors and higher-ranking officers). Testimonies of all involved (servicemen, officers and medics) were taken. The applicant joined the criminal investigation as a private party and submitted a private expert opinion by Dr K., a specialist in infectious diseases. According to Dr K., the bacterial infection was not the cause of death, as the examination of T.P. ’ s blood had not been done lege artis . He further stated that Dr D. was not a specialist in infectious diseases, that only the DNA of certain bacteria was found, that the blood had been taken 90 hours after T.P. ’ s death, and that therefore the results were to be seen from that perspective. Only a blood sample taken while T.P. was still alive could have shed light on whether the bacteria had been the cause of his death. It was possible that T.P. ’ s body was contaminated by the bacteria post-mortem . Dr K. concluded that the only cause of death could have been overheating of the body because of the circumstances surrounding the death, and that T.P. could have survived if taken to hospital on time. The applicant alleged that the relevant directives, notably the “heat decree” by the Ministry of Defence, had been violated by ordering the march and requested that another expert opinion be obtained from a specialist in infectious diseases and internal intensive care.

Upon request by the Public Prosecutor to supplement his expert opinion, Dr D. submitted that there had been a high likelihood that T.P. ’ s death was inevitable even if he had been taken directly to hospital instead of the barracks. Further, if T.P. had not participated in the march, it could not be excluded that he would still have died because of the unrecognised, hyperacute bacterial infection. However, his death could have been avoided if he had been given antibiotics in time – for which there was no indication, though, as T.P. had not told anyone that he was feeling ill. In addition, T.P. had been given a vaccine six days before his death (Diphterie ‑ Tetanus ‑ Pertussis-Polio), which could be seen as another factor weakening his immune system.

Again at the request of the Public Prosecutor, Dr D. issued another supplement, stating that he did not have at his disposal a blood sample of T.P. taken while he was still alive; that a blood culture as indicated by Dr K. would only have made sense if such a sample had been available. Dr D. had taken the blood sample from the vein in the upper thigh where the likelihood for a contamination was the smallest. Concerning the timeline, Dr D. stated that about 50 minutes could have been gained if A.W. had called an ambulance instead of his superiors; however, the time the ambulance would have taken to arrive had to be deducted, which further narrowed the time potentially gained. According to Dr D., there was a time window of merely 30 minutes to lower the body temperature when it reached over 40 o C due to overheating because of physical strain to avoid death. Consequently, the chances of survival would only have been a few per cent higher if T.P. had been transported to hospital earlier. Further, T.P. ’ s overweight (approx. 120kg with 190cm height) contributed to the body giving off heat slower. The risk of overheating was 4 times higher in overweight but physically fit persons and 8 times higher for overweight but physically unfit persons. Acute illnesses, especially those inducing fever, were a further predisposed factor for overheating.

Supplementing his private expert opinion, Dr K. disputed that T.P. had a sepsis. Apart from being given antibiotics (which Dr D. had considered as the only way to save T.P. ’ s life, if given early enough), Dr K. submitted that there were other measures to be taken at the same time in case of a septic shock, namely ensuring oxygenation, balancing electrolytes, etc. – the so-called “Septic Shock Bundle”. Essentially, Dr K. suggested that it were the outside factors of heat and strain in connection with T.P. ’ s overweight as a specific risk factor which had led to his death.

The Public Prosecutor investigated five persons: company commander K.K., platoon commander M.G. and his deputy M.R., as well as the military medics O.M. and F.R. who took first aid steps at the barracks. All investigations were eventually discontinued. The Public Prosecutor essentially followed Dr D. ’ s expert opinion, reiterating that T.P. had not expressed feeling unwell before the march. His overheating and the underlying bacterial infection were not visible to outsiders and could only have been recognised through a medical examination; there were however no indications for performing such an examination. The Public Prosecutor did not comment on Dr D. ’ s findings that the alleged omissions were not the cause for T.P. ’ s death. Further, according to Dr D., it could not be excluded that T.P. would have died even if he had not participated in the march because of the unrecognised bacterial infection.

Group Commander A.W., who participated in the march, was not listed as a suspect and not investigated separately, although the applicant had requested so.

In relation to A.W., M.G. and M.R., the Public Prosecutor held that A.W. had taken the right measures (cooling the victim, providing shade, calling help) and that even if M.G. and M.R. had taken T.P straight to hospital, the latter would have most likely died anyways, according to Dr D. The Public Prosecutor further noted that according to the final report of the military investigation, the relevant directive did not prohibit a march under the given circumstances, but that the commander had had a certain margin of discretion in that regard, even though the military commission itself called the decision to hold the march “problematic”.

The applicant requested to continue the proceedings. The regional court dismissed her request as regards K.K., M.R. and M.G and rejected it in relation to A.W., who had never formally been under investigation. The court concluded that the Public Prosecutor had conducted comprehensive investigations, questioned a large number of witnesses and obtained an expert opinion which was supplemented twice. While ordering the march had been a problematic decision by commander K.K., T.P. ’ s death resulted from an accumulation of several factors. No criminally relevant acts or omissions could be established with the certainty required for criminal proceedings. The Public Prosecutor had therefore not exceeded his discretion in discontinuing the investigation against K.K., M.R. and M.G.

As regards the special commission set up by the Federal Ministry for Defence and Sport to investigate T.P. ’ s death and to evaluate the rules applicable to the training of servicemen and the respective directives, its final report concluded that certain amendments should be made in the relevant directive; among other things, it should be inserted that when planning and executing a training exercise, the abilities of one ’ s own troops shall be taken into account, and that “physically straining activities shall be avoided in the open and uncovered field during the hot hours of the day”.

According to the applicant, no disciplinary measures were taken against any of the commanders or servicemen involved.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, are official liability proceedings ( Amtshaftungsverfahren ) an effective remedy within the meaning of this provision in respect of the applicant ’ s complaints under Articles 2 and 3?

2. Assuming domestic remedies to have been exhausted, has the applicant ’ s son ’ s right to life, ensured by Article 2 of the Convention, been violated in the present case?

3. Has the applicant ’ s son been subjected to treatment contrary to Article 3 of the Convention during the heat march ordered during his mandatory military service?

In answering the above questions the Government are invited to comment, in particular, on whether the positive obligations to prevent ill ‑ treatment and to protect the life of the applicant ’ s son have been complied with, as well as whether practical measures aimed at the effective protection of conscripts against the dangers inherent in military life and appropriate procedures for identifying shortcomings and errors liable to be committed in that regard by those in charge at different levels have been adopted ( see paragraphs 91-95 of Mosendz v. Ukraine, no. 52013/08, 17 January 2013 ) .

4. Having regard to the procedural obligation of the right to life, as well as the procedural obligation against inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Articles 2 and 3 of the Convention? In particular, have all investigative steps been undertaken to establish with certainty the actual cause of death? In this connection, and given the differing conclusions of the two medical experts, was there a need to request an expert opinion from a third expert?

The Government are also requested to provide copies of all documents pertaining to any disciplinary proceedings which may have been conducted against any servicemen in connection with the incident.

5. Has there been a violation with the applicant ’ s son ’ s right to respect for his private life, contrary to Article 8 of the Convention?