CASE OF KHABIROV v. RUSSIAPARTLY DISSENTING OPINION OF JUDGE SEIBERT-FOHR JOINED BY JUDGE ZÜND
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Document date: October 12, 2021
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PARTLY DISSENTING OPINION OF JUDGE SEIBERT-FOHR JOINED BY JUDGE ZÜND
1. While we agree with the majority that there has been no violation of Article 2 of the Convention under its substantive limb, we are unable to support the conclusions under its procedural limb. More generally, we do not agree that pre-investigation inquiries are insufficient in cases in which neither suspicious circumstance (see Kotenok v. Russia , no. 50636/11 , §§ 73 and 77, 23 March 2021; Abdullah Yılmaz v. Turkey , no. 21899/02, § 58, 17 June 2008) nor any reasonable grounds to suspect third-party involvement in the commission of suicide are found (see Hasan Çalışkan and Others v. Turkey , no. 13094/02, § 50, 27 May 2008).
2. In the present case, the authorities acted of their own motion, made all reasonable efforts to collect promptly and with sufficient thoroughness the evidence and to eliminate or minimise any risk of omissions. They continued the investigation until reaching the conclusion that there were no grounds for finding that there had been incitement to suicide.
3. In particular, after the applicant’s son had attempted to take his own life on 22 January 2006, investigations were conducted at the Totskoye military hospital; these resulted in a detailed account of the events leading to the suicide bid (see paragraphs 19-23 of the judgment). As a result of the report issued by the military prosecutor of the Totskoye Garrison on 7 April 2006, analysing, among other questions, the treatment of the applicant’s son and finding that the staffing of the psychiatric department ought to be reconsidered, Lt Colonel S. was dismissed from his post.
4. During the subsequent criminal investigation an expert report was drawn up on the psychological state of the applicant’s son prior to his suicide attempt (see paragraph 28). Following the psychological assessment report, which found that the applicant’s son had made an impulsive suicide attempt in a state of frustration, and after a medical report, a handwriting report and the taking of a number of witness statements (see paragraphs 31 ‑ 42) the investigator concluded that there had been no incitement to suicide (see paragraphs 29-30, 43) and the criminal case into incitement to suicide was closed.
5. The majority criticizes the fact that the criminal investigation was not initiated until five months after the incident and that no investigative activities were performed during those five months. However, during this very period an investigation was carried out at the Totskoye military hospital and resulted in a detailed account of the events (see paragraphs 19 ‑ 23). The applicant has challenged neither the thoroughness of this investigation, nor its independence. Nor is there any indication that a delay in the subsequent criminal investigation led to any shortcoming in the collection of evidence which would have undermined the possibilities of establishing liability and of holding persons responsible to account. As noted above, Lt. Colonel S. was dismissed from his post after the military prosecutor of the Totskoye Garrison’s report found shortcomings in the diagnosis and treatment at the military hospital (see paragraph 25). At no time was there any indication of third-party involvement in the suicide attempt. Nor does the applicant claim that any such involvement occurred. Thus, the authorities cannot be accused of having insufficiently investigated the events in the Totskoye military hospital which led to the applicant’s son’s suicide attempt.
6. Equally, they cannot be accused of not opening a criminal investigation in respect of the period prior to the applicant’s son’s transfer to military unit no. 61964. The authorities conducted a pre-investigation inquiry into possible negligence on the part of the relevant military officers. Having questioned the head of the medical service and the head of the medical assistance station of military unit no. 50661, and examined the explanations provided by the psychologist and commander of the military unit, a complex medical and psychological report by the Saratov Military Medical Institute and an expert opinion by the military educational and scientific centre of the land forces, the investigator concluded that, in the experts’ view, the applicant’s son had not suffered from a mental illness but had developed his adjustment disorder only during his service in military unit no. 61964 (see paragraphs 48-50).
7. Although the applicant claims that his son must have developed his personality disorder during his training in military unit no. 50661, in the absence of any indication that he was subjected to treatment which led to his low neuropsychological resilience and suicide risk, mere doubts about the provision of adequate psychological assistance during the five months of training are insufficient to oblige the authorities to conduct a criminal investigation. This is even more so as the applicant’s son received medical treatment soon after his arrival at the new military unit. He was initially placed in the medical service of the military unit and subsequently transferred to the psychiatric department in the Totskoye military hospital.
8. In these circumstances, in which there was at no time any reasonable suspicion or indication of homicide (see Hasan Çalışkan and Others, cited above, § 49) nor any indication that the victim was driven to suicide by bullying, threats or ill-treatment (see Abdullah Yılmaz , cited above, §§ 59 ‑ 76; Mosendz v. Ukraine , no. 52013/08, § 112, 17 January 2013; ÅžahinkuÅŸu v. Turkey , no. 38287/06, § 52, 21 June 2016 ; and Yasemin DoÄŸan v. Turkey , no. 40860/04, § 47, 6 September 2016), the authorities did everything that was necessary to investigate the death of the applicant’s son (see also Kotenok , cited above). We are therefore unable to conclude that the inquiry and the criminal investigation were insufficient to establish who was responsible for the death of the applicant’s son.