GORDYCHENKO proti Ukrajině

FIFTH SECTION

DECISION

Application no. 10132/15
Viktor Ivanovych GORDYCHENKO
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 2 June 2022 as a Committee composed of:

Ivana Jelić, President,
Ganna Yudkivska,
Arnfinn Bårdsen, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 10132/15) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 18 February 2015 by a Ukrainian national, Mr Viktor Ivanovych Gordychenko, who was born in 1970 and lives in Boguslav (“the applicant”) and who was represented by Mr Andrii Kychenok, a lawyer practising in Kyiv;

the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their then Agent, Mr Ivan Lishchyna;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the suicide of the applicant’s son during his mandatory military service, and the domestic investigation into the matter (Article 2 of the Convention).

2. On 11 October 2012 the applicant’s 19-year-old son, I., was conscripted into the army. Psychological assessment tests established that he was a psychologically balanced person with high stress resistance and no risk of suicide. I. was enrolled into a fresh conscripts’ company[1] of an airborne battalion[2].

3. Ten days later he committed suicide in the following circumstances. On the afternoon of 21 October 2012, L., also a fresh conscript, in the presence of several other conscripts, accused I. of theft[3]. The military unit psychologist, R., who overheard parts of that conversation, took L. and I. to his office on the third floor[4] to clarify the matter. About five minutes later L. left. Shortly thereafter R. also left and I. stayed alone[5]. It was subsequently stated by L. and R. that although I. had initially denied L.’s allegations, he had eventually admitted them and returned the telephone to L. According to R., when he was alone with I. for about two minutes, he told him that it was not permitted to steal and that the superior officer was to be informed of what had happened. R. instructed I. to wait and went to report the incident. Several minutes later, when R. had left his superior’s office, there was a loud noise of breaking glass. The noise had been caused by I., who had fallen out of the window. I. was able to answer several questions that the military unit’s nurse asked him in order to verify his cognitive functions. I. also noted:

“Please excuse me, I will never do that again. Damn it, why did I need to take that telephone? There are SMS messages, they should be deleted ...”

4. I. was taken to the hospital, where he died that evening.

5. Immediately after the departure of the ambulance, the military unit reported the incident to the Mykolayiv Regional Prosecutor’s Office, and its investigator arrived. The same evening, in the presence of attesting witnesses, an inspection was carried out in the office in question[6] and at the place where I. had fallen, and the two telephones were seized as material evidence. All the soldiers and staff of the military unit were also questioned immediately. They had not noticed anything unusual, and their version of the events corresponded to the summary in paragraph 3 above.

6. On 23 October 2012 the two telephones, and in particular the SMS messages stored therein, were inspected. The telephone belonging to L. contained certain messages which had apparently been sent and received by I. The telephone belonging to I. contained a message addressed to his girlfriend at an unspecified time on 21 October 2012, in which I. stated that he had got himself into trouble, because he had not bought his mobile telephone, but had exchanged it, and that he would explain everything later.

7. From 22 October to 26 November 2012 a post-mortem examination was carried out. It reported multiple serious, including fatal, injuries caused by hitting a hard surface after falling from a considerable height. In addition, several insignificant bruises on the upper front parts of both thighs caused by blunt objects some three to five days prior to the death were reported.

8. On 31 October 2012 the Mykolayiv Prosecutor’s Office in charge of supervising compliance with the law in the military area of the Southern region (“the Mykolayiv Prosecutor’s Office”) refused to institute criminal proceedings in respect of I.’s death[7]. In so far as the bruises on I.’s thighs were concerned, the investigator found that those might have been sustained during I.’s landing drills.

9. The case file contains copies of letters of the Mykolayiv Prosecutor’s Office of 2 November 2012 addressed to the applicant and his wife informing them of the above-mentioned rulings. The applicant denied receiving them.

10. On 1 November 2012 the army command created a commission for the investigation of the fatal incident involving I. Its report, which was issued on 11 November 2012, stated that the cause of that incident had been I.’s anxiety that the theft would become public knowledge. The commission also concluded that it had been an error on the part of R. to leave I. alone. The necessity for improvement and the individualisation of educational work and relations with new arrivals were emphasised. Severe reprimands were given to several high-ranking officers, including R.

11. On 2 October 2013 the Mykolayiv Prosecutor’s Office launched an investigation into the suspected negligent attitude of R. to his professional duties, which had led to I.’s suicide. The decision to launch the investigation was taken in response to the fact that the applicant had reported a crime in June 2013, alleging that R., who had threated I. with reporting the exchange of the telephones to their superiors and bringing I. to justice, had been responsible for the latter’s suicide[8].

12. On the same day, the applicant became involved in the proceedings and was questioned as an aggrieved party. He noted, in particular, that there might have been some inconsistencies regarding the exact time when I.’s and L.’s telephones had been exchanged.

13. The soldiers and staff of the military unit were questioned again. Theirstatements were similar to those made earlier (see paragraph 5 above). Likewise, the conclusions of a second post-mortem examination[9] were identical to those in the previous report (see paragraph 7 above). The investigator also obtained detailed printouts from the mobile operators regarding all the communications of both telephones. While it was clear that there were some deleted SMS messages, it was technically impossible to restore them.

14. On 26 December 2013 the post-mortem psychological expert report was issued. Having regard to various documents and witness statements concerning I.’s life and behaviour, both before and during his military service, the expert concluded that I. might have committed suicide impulsively, fearing a negative reaction to his actions. It was observed that, until his brief period in the army, I.’s life had been well-settled and calm and he had cared about other people’s opinion of him. The expert noted that R. might have contributed to I.’s feelings of shame and guilt, but there was no relationship of cause and effect between R.’s behaviour and I.’s suicide.

15. On the same date the Mykolayiv Prosecutor’s Office discontinued the proceedings, concluding that there was no indication of any criminal offences with regard to R.’s actions.

16. The applicant challenged that ruling arguing, in particular, that not all the factual details regarding the exchange of the telephones had been established. Furthermore, referring to the reprimand given to R. (see paragraph 10 above), and the psychological expert’s findings (see paragraph 14 above), the applicant insisted that R. should be held responsible for I.’s death.

17. The applicant’s complaint was rejected on 29 July 2014 by the Mykolayiv Tsentralnyy District Court and on 18 August 2014 by the Mykolayiv Regional Court of Appeal[10], those courts agreeing with the investigator’s conclusion that R.’s actions had not involved any criminal offences. It was sufficiently established that I. had admitted stealing L.’s telephone[11]. That theft was so petty that I. would have risked criminal prosecution only if a complaint had been made by L., which the latter had never expressed an intention to lodge. R. had simply complied with his duty to report the incident to his superior. The fact that I. had been alone before he fell out of the window was confirmed by several eyewitnesses, as well as by the immediate inspection of the premises. Lastly, there was no indication of bullying or ill-treatment in the military unit.

18. The applicant complained under Article 2 of the Convention that the State had failed to protect the life of his son and that there had been no effective investigation into I.’s suicide. He argued that if I., who was not a psychologically fragile person, had decided to put an end to his life because of fear of the consequences of a petty theft, it meant that the atmosphere in the military unit was particularly tense. The applicant further submitted that the State had done nothing to prevent bullying or ill-treatment in the army. He also contended, with reference to some statistics from 2014-2018 in respect of the psychological rehabilitation of former participants of an anti‑terrorist operation[12], that there were no effective suicide prevention mechanisms in place. The applicant criticised the investigation as being too short and superficial, as well as lacking independence.

19. The Government observed that there had been no indication of I. being bullied or ill-treated. They also pointed out that he had successfully passed multiple psychological assessments. Furthermore, the Government submitted that there were adequate regulations aimed at suicide prevention in the army. Lastly, they contended that the domestic investigation had been expedient and effective.

THE COURT’S ASSESSMENT

20. The relevant case-law principles are summarised, for example, in Boychenko v. Russia (no. 8663/08, §§ 76-84, 12 October 2021).

21. The Court notes that the applicant did not allege any deficiencies in the system of psychological assessment and assistance in the Ukrainian army at the material time. His criticism of the psychological rehabilitation mechanisms for the anti-terrorist operation veterans is not relevant to the present case. Furthermore, it is not in dispute that I. had never suffered from any psychological disorders or shown any suicidal tendencies. The Court also takes note of the absence of any indication that I. was subjected to hazing practices before his suicide (contrast Mosendz v. Ukraine, no. 52013/08, § 112, 17 January 2013). Even assuming that the theft accusation with which he had been confronted was formulated in overly harsh terms, the events took place within several minutes, leaving the military unit superiors no opportunity to realise that there was a real and immediate risk of suicide (see paragraph 3 above, and compare Malik Babayev v. Azerbaijan, no. 30500/11, § 73, 1 June 2017). The unpredictability of human conduct must not be ignored in this type of case (ibid., § 74).

22. In so far as the domestic investigation is concerned, the Court observes that, apart from being dissatisfied with its overall conclusion that there was nobody to blame for I.’s death, the applicant did not criticise the authorities for any particular deficiencies or omissions (see Baklanov v. Ukraine, no. 44425/08, § 88, 24 October 2013). The expediency of the initial investigative measures is to be noted: the incident was reported to the local prosecutor’s office, which sent its investigator to the scene immediately. It was the investigator who carried out all the essential measures for securing the evidence (see paragraph 5 above; and, for a converse example, see Malik Babayev, cited above, §§ 84-85[13]). A significant number of witnesses were questioned and all the relevant forensic examinations were carried out. The fact that there were two rounds of investigation is explained by the changes in the criminal procedural legislation rather than by any deficiencies in its first round. In any event, the entire duration of the investigation was less than seven months[14]. No elements of a criminal offence were established in the circumstances of I.’s death, and the Court has no reasons for questioning that finding.

23. Although the applicant alleged, in broad terms, that the investigation had not been independent, he did not argue that there existed any subordinate or other special relationship between the staff of the military unit concerned and the investigators dealing with the case (compare Mikhno v. Ukraine, no. 32514/12, §§ 135-36, 1 September 2016). The applicant was also able to raise all his arguments before the ordinary courts which had no link to the military (see paragraphs 16 and 17 above).

24. In view of the above, the Court finds that the applicant’s complaints under both the substantive and procedural limb of Article 2 of the Convention are manifestly ill-founded. The application must therefore be declared inadmissible, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 15 September 2022.

Martina Keller Ivana Jelić
Deputy Registrar President

[1] Consisting entirely of newly arrived conscripts.

[2] I had expressed his preference for the air force.

[3] Namely, L. claimed that his mobile telephone was no longer functioning properly and appeared tampered with after he had left it unattended. When he had borrowed I.’s telephone afterwards, L. had allegedly discovered that that was in fact his own telephone, with its front panel and battery replaced. He also submitted that he had discovered some messages from his own inbox on I.’s telephone.

[4] Given that there is no ground floor in Ukraine, that corresponds to the second floor.

[5] This circumstance was later confirmed by the statements of two soldiers on duty who had had the office door within their field of view.

[6] As indicated in the inspection report, nothing in the office had changed and there were no traces of a fight. There were three shoe marks on the table near the broken window, which, as later established in an expert report of 6 November 2012, corresponded to I.’s shoes.

[7] In particular, on suspicion of murder or incitement to commit suicide, or a violation of regulations on relations among soldiers implying hazing and/or ill-treatment.

[8] While initially the prosecutor found no grounds for the investigation, on 29 August 2013 the Mykolayiv Tsentralnyy District Court directed it to launch such an investigation under Article 214 of the new Code of Criminal Procedure (in force since 20 November 2012). That provision obliged the prosecution authorities to make an entry in the Unified register of pre-trial investigations and start an investigation immediately, that is within twenty-four hours after a crime had been reported.

[9] Conducted from 28 October to 12 November 2013.

[10] The appellate court’s ruling was sent to the applicant on 27 August 2014.

[11] The courts referred in that connection to the testimony of the nurse who heard I.’s last words (see paragraph 3 above) and I.’s message to his girlfriend (see paragraph 6 above).

[12] Launched by the Ukrainian government in spring 2014 in response to the creation of illegal armed groups and self-proclaimed entities in eastern Ukraine.

[13] In the above-cited case, which also concerned a suicide in the army, the initial inspection of the scene of the crime and the collection of the evidence were carried out by the military unit commander, whereas the investigator visited the scene for the first time more than a month later.

[14] From 21 to 31 October 2012 (see paragraph 8 above) and June to December 2013 (see paragraphs 11-15 above).