PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE ELÓSEGUI

1. The present separate opinion in the case of Lyubov Vasilyeva v. Russia has been written in order to explain why I voted with my colleagues in finding a violation of Article 2 of the Convention under its substantive limb but dissent from them in finding that there has also been a violation of the procedural limb of Article 2, for lack of an adequate investigation. In contrast, the majority have concluded that there was no violation of Article 2 under its procedural limb.

2. In my opinion, all the facts in the file indicate that there has been not only a substantive violation of the above provision, but also a procedural one. In contrast to what is stated in the analysis of the procedural aspect (see paragraphs 65 ‑ 69 of the judgment), I consider that the applicant’s observations point to omissions and deficiencies which rendered the investigation inadequate. Although the authorities did open a criminal investigation into the death of the applicant’s son and questioned a significant number of witnesses, they did not go deeply into the conclusions that could be derived from certain clear parts of the evidence. The present judgment affirms that there is no reason to doubt the conclusions reached by the investigation. I cannot share this approach, because I see many flows in the research conducted by the domestic courts and the authorities. One important point, for instance, concerns the fact that “the Chita Garrison Military Court sentenced Pte B. to two years’ suspended imprisonment for extorting money from the applicant’s son and other conscripts ... and Pte Kh. to one year’s imprisonment for breaching the rules governing relations between military personnel by committing acts of violence towards and humiliating Pte S.V. and other conscripts” (see paragraphs 17 ‑ 18). However, no mention was made of Article 110 of the Criminal Code, namely “incitement to suicide”. In my opinion, there is a clear basis for exploring possible charges against the soldiers involved in the first bullying incident. This failure to classify the facts influenced the following stages of the investigation in relation to the crime with which Pte B and Pte Kh. were charged. They were punished because they had committed acts of violence towards Pte S.V. and humiliated him, but the link between these facts and the consequence of incitement of suicide is completely missing from the investigation.

3. The facts were analysed in an isolated manner by the domestic courts, and the majority of my colleagues have accepted that as valid. To do so is to ignore the fact that the phenomenon of hazing or bullying in the military must be addressed through a holistic approach. In the specific case before us, the applicant’s son was a victim of the so-called dedovschina practice (the “rule of grandfathers”). The distinctive features of this harassment are the right to use force and violence with impunity. S.V. was subjected to bullying and blackmailing during his first four days in the army, which included being prevented from sleeping. For this reason, and for this reason alone, he tried to leave the army. He was caught and his superiors spread the word about this fact. In consequence, he was treated as a traitor or deserter (a “red”, or sochnik ) by his army colleagues. The military themselves brought this information to the new military unit to which the applicant’s son was sent, and a fresh round of bullying began.

4. This context was ignored by the judges and the prosecutor during the investigation. They minimised the evidence, avoiding charging the two colleagues of the applicant’s son with having incited suicide. In the same vein, they considered that the psychologists and military commanders had acted properly, although the observations submitted to the Court by the applicant (and not denied by the Government) indicated that the commanders tolerated the bullying or even participated in it. The psychologists also knew about it and did nothing. The applicant provided the Court with many arguments proving that the investigation did not satisfy the requirements of Article 2 of the Convention. All these allegations are very clear from the materials in the file: an investigation was carried out only to examine the version of intentional incitement to suicide, but no formal criminal investigation was initiated with regard to evaluation of the psychological assistance provided to the applicant’s son... The acts (failure to act) of the military psychologists were not subject to an ex officio review (see Observations of the applicant, paragraph 5).

5. With regard to the requirement of promptness, it can be noted that the investigation with respect to the officials was not expeditious, in that it was started only at the initiative of the applicant and her lawyer, two and a half years after S.V.’s death (see Observations of the applicant, paragraph 6).

6. The Court has received many applications related to incitement to suicide in the Russian army [1] . The Court, the Council of Europe, other international bodies and ONGs have recognised that there exists a systemic problem. That is why investigation at the level of the domestic courts to identify the guilty party (parties) and establish criminal liability is crucial. It is not enough for the Court to declare that there has been a substantive violation without also finding a procedural violation, because the domestic authorities did not attempt to charge the individuals who were responsible. I wrote a joint concurring opinion with judge Lemmens in the case of Boychenko v. Russia (no. 8663/08, 12 October 2021) specifically to indicate that, in its judgments addressing this endemic and structural problem, the Court must go deeper in its analysis of the root causes.

7. One aspect which surprises me is the insistence by the Russian authorities and even by the Court on the victim-focused question put to the parties when communicating the case, namely whether a system of assessment is in place to establish whether conscripts have psychological problems before they join the army. No one has mentioned the aggressors. It is crystal clear from the abundant research on bullying (irrespective of whether the context is the army, schools [2] or the workplace) that victims need not have any previous mental problem. The applicant’s son was in perfectly sound psychological health before entering the army (see Observations of the applicant, paragraph 2). His depressive neurotic disorder was caused by the hazing (ibid.).

8. There is much to be done in the introduction of education among all conscripts in order to avoid bullying and hazing. The victim is not the guilty party. Potential aggressors must be educated and special programmes are needed to achieve this. The profile and features of victims of different kinds of harassment are always the same. If they complain, they are subjected to retaliation rather than receiving help. This also explains why, in the present case, the victim said nothing to the psychologist. Furthermore, his own commanding officers contributed to worsening the situation. Nowadays, there is much knowledge and research about the necessity of mediation and educating peers against bullying. A human-rights court should also reflect these factors in its analysis, requiring the member States to fulfil their positive obligations through preventive measures and effective investigation in order to punish persons who are guilty of incitement of suicide. In sum, it is not enough to focus on the need for a better legal framework to protect victims and denouncers of hazing. The Court’s assessment should go to the origin of the problem.

[1] See Filippovy v. Russia , 19355/09; Khudoroshko v. Russia , 3959/14; Nevostruyeva v. Russia (dec.), 51185/11, 1 June 2021; Nasibullin v. Russia (dec.), 64774/09, 7 January 2020; Pavlova v. Russia (dec.), 25835/10, 28 January 2020; and Khabirov v. Russia , no. 69450/10, 12 October 2021.

[2] I have a certain measure of experience in this area, having been involved as a Professor of the University of Saragossa (Spain) in conducting assessment of secondary school teachers with regard to human rights education and prevention of bullying in schools. This included the implementation of concrete rules and disciplinary measures in several public schools in the Autonomous Region of Aragón, with the help of the specialist José María Avilés Martínez, Professor of Psychology at the University of Valladolid. He is the author of many articles on this subject, such as: “Positive coexistence and bullying prevention: The contribution of the support system between equals – a study between the Spanish and Brazilian experiences”, Revista Tempos e Espaços em Eudcaçao , ISSN-e 2358-1425, Vol 13, no. 32, 2020.