Постановление Европейского суда по правам человека от 11.02.2010 «Дело Каянкин (kayankin) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF KAYANKIN v. RUSSIA
(Application No. 24427/02)
JUDGMENT*
(Strasbourg, 11.II.2010)
____________________________
*This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Kayankin v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,

Nina {Vajic}*,

____________________________
*Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.

Anatoly Kovler,

Khanlar Hajiyev,

Dean Spielmann,

Giorgio Malinverni,

George Nicolaou, judges,

and {Soren} Nielsen, Section Registrar,

Having deliberated in private on 21 January 2010,

Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in an application (No. 24427/02) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Russian national, Mr Aleksandr Sergeyevich Kayankin ("the applicant"), on 14 May 2002.

2. The applicant, who had been granted legal aid, was represented by lawyers of the Human Rights Centre Memorial. The Russian Government ("the Government") were represented by Mr P. Laptev and Mrs V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights.

3. The applicant alleged, in particular, that he had been subjected to inhuman and degrading treatment as a result of being drafted into the army in a very poor state of health, that during his military service he had been beaten up by an officer and fellow soldiers, that there had not been an effective investigation into the incidents and that the tort proceedings brought by him had been excessively long.

4. On 1 March 2006 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

THE FACTS
I. The circumstances of the case
5. The applicant was born in 1980 and lives in the village of Sosnovo in the Leningrad Region.

6. As transpires from a copy of the applicant's medical record, submitted by him to the Court, on a number of occasions in 1987 he applied to the Sosnovo village hospital complaining of headaches. On 16 November 1987 he was diagnosed with hypertension. The diagnosis was recorded in his medical history.

A. The applicant's military service
and the state of his health
7. In 1996 the Priozersk District Military Board registered the applicant for compulsory military service.

8. On 12 February 1997 the Priozersk District Military Medical Commission, comprising a surgeon, a general practitioner, a neuropathologist, a psychiatrist, an oculist, a dentist, a dermatologist and an otolaryngologist, examined the applicant for the purpose of making a preliminary assessment of the state of his health to determine whether he was fit for military service. The commission diagnosed the applicant with "hypotrophy of unknown genesis", and assigned him category "D" on the medical scale of eligibility for service, finding him "temporarily unfit". The diagnosis was made on the basis of the disproportionate correlation between the applicant's height of 167 centimetres and his weight of 50 kilograms. The commission concluded that an additional medical examination of the applicant by an endocrinologist was necessary in relation to the diagnosis of hypotrophy. The applicant's conscription was deferred for six months on medical grounds.

9. According to the applicant, the commission did not provide him with a medical certificate or any other medical documents directing him to a particular public health institution for further medical examinations, monitoring and, if necessary, treatment, as required by the Instruction on Military Medical Examinations in the Armed Forces of the Russian Federation, adopted on 22 September 1995 by Decree No. 315 of the Russian Defence Ministry and in force at the material time. However, as transpires from the applicant's medical history submitted to the Court, on 18 February 1997 he was examined by an endocrinologist, who noted the disproportionate ratio between the applicant's weight and height, but considered that his state of health was satisfactory. At the same time the endocrinologist diagnosed the applicant with a diffuse enlargement of the thyroid gland of the first degree, connected to puberty.

10. In October 1998 the applicant was again examined by the military medical commission and found to be "fit for military service". The report of the commission indicated that he had not complained about the state of his health. The applicant's call-up was scheduled for April 1999.

11. No further medical examinations of the applicant were performed until April 1999, when the military medical commission re-examined him. The commission concluded that the applicant was fit for military service without any restrictions. As transpires from the applicant's personal file of a conscript produced to the Court, his height of 175 centimetres and his weight of 63 kilograms meant that the diagnosis of "hypotrophy" was no longer an issue. The applicant countersigned the medical report indicating that he had no complaints pertaining to the state of his health.

12. On 3 June 1999 the applicant was drafted into the army. He was assigned to military unit No. 22336 in Volgograd. The applicant alleged that in the unit he had on many occasions been beaten up and harassed by senior conscripts. They had allegedly forced him and other younger conscripts to sleep outdoors at night and had taken away their food. According to the applicant, on 5 September 1999 the head of the military headquarters, Captain Ch., in the presence of the soldier A., hit the applicant five times in the head with an artillery gun shell. On 17 October 1999 a group of senior conscripts allegedly beat the applicant up.

13. On 25 October 1999 the applicant's mother arrived at the unit. The applicant told her about the beatings.

14. Two days later the applicant left the unit without authorisation and travelled with his mother to St Petersburg.

15. In St Petersburg the applicant was examined at the Bekhterev Scientific Research Psychoneurology Institute (Научно-исследовательский психоневрологический институт им. В.М. Бехтерева). A magnetic resonance imaging (MRI) scan, a transcranial scan with Doppler apparatus and an ultrasound scan of the applicant's head were performed. He was also examined by an oculist, a psychologist and neurologist. On 9 November 1999 the Institute issued the applicant with an advisory opinion, the relevant part of which read as follows:

"[The applicant complains] of headaches, dizziness, fatigability, irritability, a hearing impairment of the right ear, and somniloquence.

[He] has suffered from headaches since the age of nine; [the headaches] have a piercing, squeezing character; [the headache] starts in the morning with the impression that [someone] is applying pressure to the eyes; [the headache] becomes stronger during mental and physical work; it is accompanied by photophobia, degradation of working capacity, and fast fatigability.

Medical history (according to the applicant's mother and his medical record):

...

[The applicant] was an active child; he frequently fell, hitting his head. At the age of four months he fell from a shelf, hitting his head; he lost consciousness. He hit his head hard a number of times while skating. At the age of nine years he severely hit his forehead; a suture was applied. When he was 12 years old, he was accidentally hit on the head with a hammer.

...

Diagnosis: organic brain disease - the result of craniocerebral traumas sustained [by the applicant], neuroinfections, a perinatal disorder - cerebral arachnoiditis with apparent hypertensive syndrome, cerebral angiodystonia, epileptiform paroxysms..., bilateral pyramidal signs, psycho-organic and astheno-psychic syndrome. Osteochondropathy of the knee joints.

Recommended: supervision by a neuropathologist and a psychoneuropathologist... Limitation of physical activity. Placement in a military hospital."
16. On 12 November 1999 the applicant applied to the St Petersburg Military Prosecutor's Office, complaining that his conscription had been unlawful and that he had been ill-treated during his military service. On 15 November 1999, on a recommendation from the prosecutor's office, he was admitted to the neurology unit of a military hospital, where he stayed until 9 December 1999.

17. On 7 December 1999 the applicant was examined by the Military Medical Commission of Medical Clinical Hospital No. 442. According to a medical certificate issued by the Commission, the applicant was diagnosed with "long-term effects of neuroinfection in the form of external hydrocephalus with disseminated neurological signs and pseudo-neurasthenic syndrome; 1st degree S-shaped scoliosis of the thoracodorsal region with Schmorl's nodule in the 4th to 9th vertebral bodies, transitional lumbosacral vertebra, incomplete closure of 2, 3 and 4 vertebral arches of the spine; chronic tonsillitis". The certificate indicated that the illness had been acquired during the applicant's military service and that he was "partially fit for military service".

18. On 25 January 2000 the applicant was discharged from military service on account of his illness.

19. On 15 December 2000 the St Petersburg Medical Expert Commission issued the applicant with a medical certificate indicating that he had a third-degree disability as a consequence of the illness.

B. Tort proceedings
20. On 19 January 2000 the applicant brought an action in the Priozersk Town Court against the Priozersk District Drafting Military Commission and the Priozersk District and Leningrad Regional Military Boards, seeking compensation for damage. He also asked the Town Court to set aside the decision of 3 June 1999 of the Priozersk District Military Board as unlawful, claiming that he should not have been drafted into the army as he had been seriously ill.

21. The case was assigned to Judge C. on 24 January 2000.

22. On 4 October 2000 Judge C. delivered a decision, accepting the case for examination on the merits, and scheduled the first hearing for 1 December 2000. On the same day she also sent a letter to the defendants asking to submit the applicant's personal file of a conscript.

23. The hearing of 1 December 2000 was adjourned because the applicant wanted to study the case file and to retain a lawyer.

24. As transpires from the Government's submissions, the following hearing, which took place on 26 September 2001, was adjourned after the applicant's representative had successfully petitioned the Town Court for provision of additional evidence.

25. The next hearing, scheduled for 8 October 2001, was adjourned on a request from the Priozersk District Military Board because its representative could not attend.

26. On 17 October 2001 the Town Court, at the applicant's request, sent letters to a number of military and medical authorities seeking the production of additional evidence. The latest response was received by the Town Court on 4 December 2001 from the Sosnovo village hospital. The hospital informed the Town Court that it could not submit an extract from a hospital register showing that the applicant's medical record had been sent to the military medical commission for an examination when the question on his eligibility to the military service was to be decided. The hospital explained that the register in question was missing. At the same time the hospital noted that as a general rule medical records of potential conscripts were sent to the military medical commission.

27. The following hearing, scheduled for 16 January 2002, was postponed because the defendants failed to appear. The Town Court also afforded the applicant's representative additional time to prepare written questions to put to a medical expert.

28. On 21 January 2002 the Town Court sent letters, repeating its requests for provision of evidence, to a number of military authorities which had failed to reply to the first letter of 17 October 2001.

29. On 18 February 2002 the Town Court, in response to its order of 4 October 2000, received the applicant's personal file of a conscript.

30. On 20 May 2002 the case was transferred to Judge B. who, in the process of the examination of the case file, sent letters to a number of military and medical officials, asking for additional evidence to be provided. According to the Government, the latest reply was received by the Town Court on 12 July 2002.

31. In October 2002 the Town Court asked the Priozersk Town Council to submit documents regulating the activities of the Priozersk District Military Board.

32. At the first hearing fixed by Judge B. for 10 December 2002 the applicant amended his claims. The Town Court issued the applicant and his representative with a written warning that the amendment of the claims would result in a stay of the proceedings. The hearing was rescheduled for 14 January 2003. That hearing was also adjourned on account of a defendant's failure to attend. In the meantime, the applicant filed an additional amendment to the statement of claims.

33. The following hearing, scheduled for 29 January 2003, was postponed until 13 March 2003 at the defendants' request to allow them to study additional documents submitted by the applicant.

34. The defendants failed to attend the hearing on 13 March 2003 and the Town Court sent a warning, informing them of the consequences of their conduct and ordering them to appear at the following hearing, listed for 14 May 2003.

35. On 14 May 2003 the applicant's representative asked the Town Court to adjourn the hearing as she could not attend. The Town Court fixed the following hearing for 16 October 2003. The latter hearing was also rescheduled for 4 December 2003 as the defendants failed to appear.

36. At the hearing on 4 December 2003 the applicant's representative successfully asked the Town Court to join the Leningrad Regional and Priozersk District Divisions of the Federal Treasury as co-defendants. The proceedings were stayed until 18 March 2004.

37. On 18 March 2004, at the hearing, the applicant refused to undergo a medical examination. On the same day the Priozersk Town Court dismissed