JOINT CONCURRING OPINION OF JUDGES LEMMENS AND ELÓSEGUI

1. We have voted with the majority in favour of finding a violation of Article 2 of the Convention, under both its substantive and its procedural limb.

To our regret, however, we are unable to agree with the majority’s approach to the case. Under the substantive limb, they limit their analysis to the question whether the military authorities should have known that the applicant’s son was experiencing mental distress and had had suicidal thoughts and whether there had been sufficient psychological assessment and assistance. Under the procedural limb, they limit their findings to the issue of the applicant’s involvement in the criminal investigation.

The majority thus prefer not to deal with what is the big elephant in the room: the allegation that Sergey Boychenko was driven to suicide by the brutal actions of his two commanding officers, Majors D. (the head of the military unit) and B. (his deputy).

In our opinion, this is not an “ordinary” case of suicide in the army, but a very specific case, which deserves a very specific approach. The majority acknowledge that “the State bears responsibility for the death of a victim who was driven to suicide by his bullying and ill-treatment by his hierarchical military supervisors” (see paragraph 80 of the judgment, referring to a number of judgments of the Court). Unfortunately, however, apart from merely referring to this ground for the State’s responsibility for a suicide, the majority do not pay any attention whatsoever to this aspect of the case.

2. And yet, at the domestic level the case turned primarily if not exclusively on the issue of whether Majors D. and B. had incited Sergey Boychenko to commit suicide.

In this connection, we note the following:

- in his internal inquiry, immediately after the facts, Lieutenant Colonel Ch. examined in detail how Sergey Boychenko, a young lieutenant who had arrived in the military unit right after his graduation from military school, had difficulties handling equipment which he had never studied and dealing with some of his subordinates, and how he was treated by his commanding officers D. and B. The conclusion of Lieutenant Colonel Ch. was clear: “Lieutenant Boychenko had taken his life because of the disrespectful behaviour of Major D. and Major B. and the resulting unhealthy environment in the military unit” (see paragraph 12 of the judgment). It was only in addition to this main conclusion that Lieutenant Colonel Ch. also pointed to the fact that Major P., the deputy head of the military unit responsible for “educational work”, had been ineffective in responding to the situation created by Majors D. and B. (ibid.);

- the criminal investigation, opened at the request of the applicant, was about a possible infringement of Article 110 of the Russian Criminal Code, that is, about incitement to commit suicide (see paragraph 15 of the judgment);

- the investigation was closed on the ground that there had been “no evidence of unlawful actions on the part of Lieutenant Boychenko’s commanding officers which could have been connected to his suicide” (see paragraph 38 of the judgment, referring to the decision of the Military Court of the Spassk-Dalniy Garrison of 18 July 2008).

3. In her application to the Court, the applicant again focused on the actions of Majors D. and B., and complained that neither the domestic investigation nor the Government in their submissions to the Court had addressed those actions (see paragraph 61 of the judgment).

4. In this case the Government have been successful in sending the Court the wrong way by referring extensively to the legislative and regulatory framework on psychological assistance in the army and then by focusing on the reaction by the officer responsible for the psychological well-being of military personnel to the situation that had developed after the arrival of Major D. in the military unit (see, with regard to this chronology, the statement by Major P., quoted in paragraph 8 of the judgment). Nothing was said about the actions that may have led to this situation. This issue was conspicuously avoided by the Government.

A hard case about bullying and humiliation in the army, to such a degree that it might have driven a young lieutenant to suicide, has been turned into a much softer case of lack of sufficient psychological assistance to contractual military personnel who, for whatever reason, have suicidal thoughts.

5. We regret that the majority prefer not to go deeper into the issue of incitement to suicide. In our opinion, the case file gives us reasons to be very suspicious about what actually happened.

Indeed, we note a striking development in the description of the situation in the relevant military unit. Initially, the servicemen and women who made written contributions to Lieutenant Colonel Ch.’s inquiry all mentioned how Sergey Boychenko had changed after the arrival of Major D. in his unit and how he had been the subject, on “a countless number of occasions” (see Sergeant Major N.’s statement, quoted in paragraph 10 of the judgment), of severe humiliation, including accusations of a lack of professional competence and even of theft of army material. This led Lieutenant Colonel Ch. to conclude, as already indicated above, that Sergey Boychenko “had taken his life because of the disrespectful behaviour of Major D. and Major B.” (see paragraph 2 above). During the subsequent criminal investigation, by contrast, the witnesses all downplayed the seriousness of the humiliations suffered by Sergey Boychenko and instead tried to point to the weaknesses in his personality.

We have sympathy with the applicant, who also noted this change in certain witness statements, and who submitted as an explanation “Majors D. and B.’s continued service and the witnesses’ fear of reprisals” (see paragraph 61 of the judgment).

6. In our opinion, apart from the fact that the applicant was not sufficiently involved in the criminal investigation, that investigation suffered from a much more important deficiency. Confronted with the clear divergence between the statements made during the internal inquiry, right after the facts, and those made about a year later, the investigation should have sought an explanation for this divergence and should have tried to resolve the discrepancies. Moreover, we cannot but agree with the applicant that there was no real investigation into D.’s and B.’s actions. The criminal investigation was more about the victim (Sergey Boychenko) than about the alleged perpetrators (Majors D. and B.).

We will not enter into details here, but in our opinion there were many lacunae in the criminal investigation. Too many questions which should have been obvious to an investigator were left unanswered. For instance: what exactly did some witnesses mean when they said that the relations between Sergey Boychenko and his commanding officers had merely been “complicated” (see paragraph 29 of the judgment)? What exactly did Sergey Boychenko mean when on some occasions he had stated that he would kill himself because of the constant monitoring of his actions and the accusations of theft of fuel (see paragraph 32 of the judgment)?

In our opinion, the investigation was far from thorough. This failure, rather than the failure to involve the applicant in the investigation, should have been the major reason for finding a violation of Article 2 in its procedural limb.

7. Furthermore, we note that in his conclusions Lieutenant Colonel Ch. considered “that an assessment committee should examine whether Majors D. and B. should continue serving in the military forces” (see paragraph 13 of the judgment).

The Court has not been informed of any disciplinary investigation into D.’s and B.’s conduct, or of any measure entailing their suspension pending the outcome of such an investigation. On the contrary, as indicated above, according to the applicant, Majors D. and B. continued to serve as commanders of the unit (see paragraph 5 above). May we ask whether they received protection from on high?

8. With respect to the substantive limb of Article 2, it is not for us to pass judgment on whether the allegation of incitement to suicide is well ‑ founded or not. That is a task for the domestic authorities, and as indicated above, we are of the opinion that they failed in their task of exposing the truth.

What we can note, however, is that apparently no steps were taken to de ‑ escalate the conflict between Sergey Boychenko and his commanding officers. We are not speaking here of the lack of psychological assistance to Lieutenant Boychenko; that would be merely “curing the symptom”, not tackling the problem at its roots. What we have in mind are measures directed at Majors D. and B., who, even according to the majority, displayed “excessive actions, unjustified by military needs, educational or disciplinary purposes” (see paragraph 90 of the judgment). No remedial action against them was taken. In our opinion, it is not Major P. who should take all the blame for that failure. Rather, it is the “system” that did not allow for more immediate action against commanding officers who were obviously unfit to deal with subordinates in need of guidance and advice and whose conduct might well have led to an event as tragic as a suicide.

There has therefore been a substantive violation of Article 2, if not because of incitement to suicide on the part of State agents (an issue which we must leave open), then at least because of the insufficient reaction to the risk to Sergey Boychenko’s life created by the wholly inappropriate conduct of his commanding officers.