JOINT PARTLY DISSENTING OPINION OF JUDGES NUSSBERGER AND YUDKIVSKA

Whilst we subscribe to the conclusion of the Chamber that there has been no violation of Article 3 of the Convention in respect of the applicant ’ s alleged ill-treatment in the army, as it could not be proven beyond reasonable doubt, we cannot share the majority ’ s opinion that the State did not bear the responsibility for the applicant ’ s psychiatric disorder and that the investigation into his complaints was effective.

This is the second case against Ukraine examined by the Court which concerns the worrying phenomenon of didivshchyna .

In the recent case of Mosendz v. Ukraine (see Mosendz v. Ukraine no. 52013/08 § 113, 17 January 2013) the Court held: “... having regard to the widespread concern over the existence of ‘ didivshchyna ’ , or hazing, in the Ukrainian army ( ... ) voiced, in particular, in the Ukrainian Ombudsman ’ s report and in some international materials (...), the Court does not rule out the existence of a broader context of coercive hazing in the military unit where the applicant ’ s son had been serving. That being so, the failure to allocate the responsibility for what had happened there to upper hierarchical authority levels, rather than limiting it to wrongdoings of individual officers, is especially worrying ( ... ). ” In our view, this general context cannot be ignored in the present case either.

It is admitted that the applicant was in good mental health before he was drafted into the army, and that within ten months he had become mentally ill. Moreover, the applicant ’ s mental illness appears to have been severe – he lost eighty per cent of his capacity to work (see paragraph 16 of the judgment).

The causal link between the applicant ’ s military service and his disability was never called into question. It was the medical panel itself which reached the conclusion in April 2004 that “[the applicant ’ s] illness was related to his military service” (see paragraph 13).

This very fact, in view of the widespread and well-known problem of didivshchyna in the army, called for an investigation to be carried out of the authorities ’ own motion, even though the applicant himself did not complain about what had happened to him in the army until two years later. An immediate investigation would have avoided any problems caused by the lapse of time. Unlike the majority (paragraph 79) we therefore hold the authorities responsible for the diminishing prospect of success of the investigation caused by the delay.

Not only did the authorities fail to launch an investigation immediately after the medical panel ’ s evaluation in April 2004; the investigation into the complaint made by the applicant ’ s mother in 2006 also has to be considered as superficial.

Contrary to the situation in the Kayankin case ( see Kayankin v. Russia no. 24427/02 § 111, 11 February 2010) where the investigative authorities performed a forensic investigative simulation of the incident and also undertook other “significant investigative measures, including questioning of the applicant, the accused Captain Ch., and the applicant ’ s fellow soldiers, performing confrontation interviews to settle the differences in the parties ’ accounts of events and obtaining an additional expert opinion”, in the present case the investigation was limited to questioning the senior officers of two military units (MU1 and MU2), the chief of the medical station in MU2 and two more witnesses mentioned by the applicant.

Thus, although the applicant had spent these crucial ten months in military unit MU1, only the chief of staff and the squadron commander of that unit were questioned, together with witnesses S. and V. It is true that the most reliable witness, S., a conscript like the applicant and at the time of questioning no longer a member of the army, did not confirm the applicant ’ s allegations. But, in our view, this was not sufficient to absolve the authorities from their positive obligation to thoroughly investigate the injuries resulting from the applicant ’ s military service. Instead of trying to find out the truth about what had happened, they restricted themselves to rejecting the few and vague allegations made by the applicant. It was obvious that in the specific circumstances of the case this was inadequate, as those allegations were made at a time when the applicant was already suffering from a mental illness and was therefore not in a position to give a clear account of what had happened to him. The authorities could have investigated much more thoroughly and questioned all the other fellow soldiers of the applicant as well as other people outside the army who might have shed additional light on the circumstances of the case. They could also have ordered an expert analysis to determine the potential causes of the applicant ’ s illness.

We consider that this lack of diligence, especially seen against the background of general knowledge about didivshchyna in the army, rendered the investigation ineffective.

According to the Court ’ s established case-law, the State is under an obligation to account for any injuries or deaths occurring in the army, unless it can be shown on the basis of a thorough investigation that there are other explanations for the injuries caused (see Beker v. Turkey , no. 27866/03, §§ 41-42, 24 March 2009, with further references). In the absence of any investigation meeting the required standards, we conclude that the applicant ’ s mental illness after ten months of military service is imputable to the State.