This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2014 week 17

Dedovshchina (Russian: дедовщи́на, lit. grandfatherism) is the informal system of subjection (see:hazing) of new junior conscripts, formerly to the Soviet Armed Forces and today to the Russian armed forces, Internal Troops, and (to a much lesser extent) FSB Border Guards, as well as the military forces of certain former Soviet Republics, to brutalization by the conscripts serving their last year of compulsory military service as well as NCOs and officers. Dedovshchina involves a spectrum of subordinating or humiliating activities performed by the junior ranks: from carrying out chores of the senior ranks to violent and sometimes lethal physical and psychological abuse, being not unlike an extremely vicious form of bullying or even torture. It is often cited as a major source of poor morale in the ranks. Often with the justification of maintaining authority, physical violence or psychological abuse can be applied to make “youth” to do certain fatigue duties. In many situations, hazing is in fact not the goal. Conscripts with "seniority" exploit their juniors to provide themselves with a more comfortable existence, and the violent aspects arise when juniors refuse to "follow traditions".There have been occasions where soldiers have been seriously injured. In extraordinary situations, there is a lethal outcome. Source

In its Chamber judgment in the case of Perevedentsevy v. Russia the European Court of Human Rights held, unanimously, that Russian authorities failed to protect new recruit – found hanged during his military service – whose life had been at risk due to bullying in the army (violations of Article 2 (right to life and investigation) of the European Convention on Human Rights.The case concerned the death of a 19-year old conscript, Mikhail Perevedentsev, during his military service. His parents, the applicants in the case, do not believe that their son committed suicide, alleging that bullying – under a system called dedovshchina – in the army from more senior conscripts, including extortion, beatings and sleep deprivation, had to have played a part in his

death.

The Court held that the State had failed to protect the life of Mikhail Perevedentsev. The authorities had to have been aware that he had psychological difficulties and that dedovshchina was rife in the Russian armed forces, bringing about lawlessness and gross abuse of human rights. Despite this, the Russian authorities failed to determine whether Mikhail Perevedentsev’s difficulties had been of such seriousness that his life was at risk and to take appropriate measures to prevent that risk from materialising. Nor had the investigation into his death been effective, bearing in mind its various discrepancies and omissions, including the parents’ complete exclusion from the proceedings, as well as the time it had taken (more than six and a half years) to complete.

“90.  The Court reiterates that Article 2, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention. Together with Article 3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The object and purpose of the Convention as an instrument for the protection of individual human beings requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (-).

93.  In the context of persons undergoing compulsory military service, the Court has previously had occasion to emphasise that, as with persons in custody, conscripts are within the exclusive control of the authorities of the State since any events in the army lie wholly, or in large part, within the exclusive knowledge of the authorities, and that the authorities are under a duty to protect them (-).

94.  In the same context the Court has further held that the primary duty of a State is to put in place rules geared to the level of risk to life or limb that may result not only from the nature of military activities and operations, but also from the human element that comes into play when a State decides to call up ordinary citizens to perform military service. Such rules must require the adoption of practical measures aimed at the effective protection of conscripts against the dangers inherent in military life and appropriate procedures for identifying shortcomings and errors liable to be committed in that regard by those in charge at different levels (-).

100.  Having regard to the foregoing, the Court considers that the domestic authorities have thus been aware of M.P.’s psychological difficulties, but failed to determine the seriousness of those difficulties which were of a nature and degree capable of putting M.P.’s life at risk, regard being had to the general context of dedovshchina endemic in the Russian army, and to take appropriate measures to prevent that risk from materialising. The Court has no reason to hold otherwise. It finds, therefore, that the State failed to comply with its positive obligation to protect the life of M.P.”

In the  judgment in the case of Lagutin and Others v. Russia the Court held that Russian courts failed to verify complaints of police entrapment by drug-dealing suspects (violation of Article 6 § 1 (right to a fair trial) of the Convention. The case concerned allegations by five people convicted of drug dealing that they had been victims of police entrapment. The Court held in particular that the Russian trial courts had failed to address the allegations of entrapment, which had been inseparable from the determination of the applicants’ guilt. The Court also underlined that, given that there were no adequate safeguards against police provocation under Russian law, the judicial examination of an entrapment plea was the only means of verifying whether there had been valid reasons for an undercover operation.All the applicants alleged during the proceedings against them that they had never procured drugs prior to the undercover operations in question and would never have become involved in drug dealing without being lured into it by the police and their informants. In the appeal proceedings, the courts either dismissed the applicants’ allegations of police entrapment or rejected their appeal without expressly addressing those allegations. In each case, the police testified that they had ordered the test purchases because they had received preliminary “operational information” according to which the applicants had previously been involved in drug dealing.

The Court held that the trial courts had made no attempts to check the allegations of the drug police about the allegedly pre-existing “operational information” and had accepted their unconfirmed statements that they had good reasons for their suspicions against the applicants. The trial courts’ failure to address the allegations of entrapment, which in the applicants’ cases had been inseparable from the determination of their guilt, had compromised the outcome of their trials beyond repair. It had been at odds with the fundamental guarantees of a fair trial, in particular the principles of adversarial proceedings and the equality of arms between the prosecution and the defence. There had accordingly been a violation of Article 6 as regards all five applicants.

“124.  (-) the Court has found that in all the applicants’ cases the domestic courts took no steps to verify the content of the operational files allegedly implicating them in drug trafficking. They did not establish the reasons why the covert operations had been mounted, the extent of the police’s involvement in the offence and the nature of any incitement or pressure to which the applicants had been subjected. In the light of the foregoing, the Court concludes that the domestic courts did not comply with their obligation to take cognisance of all possible materials supporting the entrapment plea. That omission prevented the courts from carrying out effective judicial supervision of the test purchases, thus failing to comply with the only safeguard against police provocation in a system where the authorisation of covert operations falls short of guarantees against abuse.”

Judge Pinto de Albuquerque, joined by Judge Dedov, expressed a concurring opinion. They conclude:

“The fight against drug trafficking is a priority of law enforcement in Europe, and special investigation techniques are a powerful means of pursuing this fight. But in Europe there are very precise limits to the means that can be used by courts and law-enforcement agents in this fight. And these limits were seriously overstepped in the cases before the Court, as in other similar ones. In order to tackle this systemic problem, the respondent State must not only reform its legislation on special investigation techniques in accordance with the above-mentioned international human rights standards, but must also take the additional administrative measures to achieve effective implementation of the new legislation in the practice of all law-enforcement agencies, and especially the police. In addition, in the specific cases before the Court, the domestic courts must necessarily quash the unfair convictions delivered on the basis of the impugned undercover operations, and consequently clear the defendants of the accusations against them, since the unfair convictions of the applicants are still severely affecting them. Any other solution would be an affront to the rule of law.”