CEDH · CASELAW;COMMUNICATEDCASES;ENG — 28 août 2012

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s3E839E41 { margin-top:12pt; margin-bottom:30pt; text-align:center } .s58ABC179 { margin-top:30pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .s401C450A { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s684F2214 { margin-top:18pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s25BD2B45 { margin-top:24pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sD5DF731 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .sB6F98828 { margin-top:12pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s360DA689 { margin-top:18pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s8378218E { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s6477A72F { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sA1CDB767 { margin-top:6pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s281358E1 { margin-top:12pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sCA92750 { margin-top:12pt; margin-left:21.25pt; margin-bottom:42pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sC769D9E0 { margin-top:42pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3B3A5DE9 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s9296A950 { margin-top:36pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s76CF415B { page-break-before:always; clear:both } .s2E2EB3D2 { margin-top:12pt; margin-bottom:0pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s98A7B623 { margin-top:0pt; margin-bottom:0pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } SECOND SECTION Application no. 48754/11 Luigi PLACI’ against Italy lodged on 3 August 2011 STATEMENT OF FACTS The applicant, Mr Luigi Placi’, is an Italian national, who was born in 1975 and lives in Specchia. He is represented before the Court by Mr B. and Ms I. de Francesco, lawyers practising in Corsano. A.     The circumstances of the case 1. Background of the case The facts of the case, as submitted by the applicant, may be summarised as follows. In 1993 the applicant aged eighteen was called up to undertake compulsory military service. For the purposes of his conscription he was requested to undergo a psycho-physical medical examination on 3   December 1993, as a result of which he was found to be fit for military service. The detailed report, which was not disclosed to the applicant (until 21 September 2010 in the context of pension proceedings), considered that the applicant was slow in understanding and executing a task but logical in its exercise, although prone to giving up. In an evaluation covering language and cultural skills, motivation, mental performance and behaviour, he obtained a grade of 4 out of 10 in each sector. On conscription, on 14 June 1994 the applicant underwent another medical examination as a result of which he was found to be fit for military service. He was assigned to Battalion no. 123 in Chieti were he was subject to heavy psycho-physical training, including the use of firearms. On 9 July 1994 the applicant was transferred to the provincial command unit in Aquila, where he remained until 30 December 1994. During this time, from 1 September to 2 November 1994 he temporarily formed part of its logistical battalion. During the period in Aquila the applicant was subjected to repeated punishments. According to the documentation presented, he was subjected to eight punishments between July and December, amounting to twenty-four days of confinement, including periods of solitary confinement, for reasons ranging from negligent care of his camp-bed area to failure to report to his supervisor, or informal behaviour towards his superior. During the time he spent at the logistical battalion he was hospitalised at least four times for medical care. On 30 December 1994 the applicant was transferred to Lecce, where a commander noted that the applicant suffered from nervous ticks and twitches, difficulty in socialising and learning, and absent behaviour. The commander ordered the applicant to undergo a specialised medical visit to test his fitness to perform military service. On 24 January 1995 he was admitted to hospital, where he was diagnosed with anxiety syndrome in a mentally fragile patient. A medical report (NHS Tricase) of 6 February 1995 considered that in his youth the applicant had suffered from affection-relational problems and learning difficulties. He was physically weak and insecure, had a low aptitude for learning, was prone to isolation, operationally unstable and incapable of taking up responsibilities. Tests revealed that he was unable to perform, had precarious orientation and a deficit in logic and memory. He was considered to have a slight mental insufficiency (I.Q. 67) and to be incapable of creating positive relationships with people. This inadequacy caused him to live his military life with anxiety and fear of his counterparts, who he considered were aggressive towards him, even if they had only been joking. The report considered that the longer he remained in military service, the more his anxiety would become severe, and his defensive attitude arsing from his fears would become more intense. On 8 April 1995 the applicant was found to suffer from “dysphoric disturbances and marginal personality” and was discharged due to unfitness. Following his discharge, the applicant underwent further medical examinations. A report (NHS Tricase) of 20 October 1995 considered that the applicant was no longer having a defensive attitude nor was he suffering from dysphoric disturbances and ticks. He was still, however, insecure, prone to isolation, unstable and unwilling to take up responsibilities. Following the tests performed, the report concluded that the situation of stress, namely military service, having ended, the applicant had slightly improved. However, he was still mentally deficient. A report (Russo) by the applicant’s doctor considered that the applicant had fallen sick because of military service or at least that there was a causal link between the two. In consequence, on 13 January 1996 the applicant requested the Defence Ministry to pay damages in terms of Law no. 416 of 1926 and presidential decree no. 686 of 1957. In the context of his request for damages, on 30 September 1999 the Medical Commission of the Bari Military Hospital diagnosed the applicant with “obsessive compulsive disorder disturbance” which it considered was not a result of his military service. It opined that the mental infirmity at issue was related to pre-existing factors of the individual. It had not appeared that during his military service the applicant had been subjected to events and services which, given their importance, duration and nature, could have seriously influenced the onset or evolution of the infirmity. It further considered the request to have been made out of time. In the meantime the applicant had repeatedly requested the relevant authorities to provide him with a copy of the pertinent documents regarding the period in which he had served in the military to enable him to substantiate his claims. On 24 November 1999 he further requested the Lecce Military District to provide him with the administrative and health documents related to his case together with the minutes of the Medical Commission’s meeting in his respect. This request was reiterated four times in the year 2000 and remained unanswered. On 19 June 2000 the second instance Medical Commission of Bari confirmed the findings of the Medical Commission dated 30   September   1999. On 11 July 2000 the Ministry of Defence rejected his request, noting that the Medical Commission (second instance) of the Command of the Naples Health Service had, on 19 June 2000, determined that the infirmity “obsessive compulsive disorder disturbance” of which the applicant suffered had not been caused by his military service. 2. Domestic proceedings (a) Proceedings before the Regional Administrative Tribunal On 21 July 2000 the applicant instituted proceedings before the Lecce Regional Administrative Tribunal (“TAR”) for the recognition of the causal link between his infirmity and the compulsory military service, and in the event that this was considered pre-existent he requested the court to ascertain the responsibility of the military in recruiting the applicant and in consequence to award him damages. On 4 August 2000 the applicant lodged an urgent request with the relevant authorities to access medical documents relating to the fitness examination prior to conscription, details about his military life – training, work, etc., a record of the punishments endured and hospital stays, an assessment by his commander of his personality and professionalism and all other relevant material held by the Military Administration. On 22   September 2000 he was informed that the unit in Aquila had been disbanded. He was further informed that he had spent twenty-three days in “ consegna semplice ” (a punishment prohibiting an individual to leave the base) and one day of “ consegna di rigore ” (a punishment confining the individual to a specified area in the base) and that any further information had to be requested from the Lecce Recruiting Office. Thus, the applicant lodged a request with the Lecce Recruiting Office on 28 September 2000 and on 16 October 2000 the latter replied, sending the applicant the excerpt containing the record of his punishment and noting that he had spent twenty-eight days in “ consegna semplice ” and not twenty-three. No other documentation was sent to the applicant. Following further requests on 19   October 2000, the Lecce Recruiting Office sent the applicant the psycho-physical training file. On 28 December 2002 the TAR appointed Dr. S as a court expert to ascertain the nature of the applicant’s infirmity and submit the relevant report within sixty days. Following an examination of the applicant, Dr. S failed to deliver the requisite report. Thus, on 30 January 2007, the applicant requested the TAR to replace the said expert. By a judgment filed in the relevant registry on 20 July 2007 the TAR, considering the interlocutory request as one for renewal (“ rinnovo ”), rejected the request, noting that for seven years the applicant had failed to solicit any action. Considering that no more evidence was necessary, it proceeded to give judgment. It held that the two Medical Commissions had agreed about the source of the applicant’s infirmity and that it had been pre-existing. Indeed the first-instance Medical Commission had referred to a diagnosis of the applicant made in 1997 (when he had stayed in hospital) which evidenced a fragile and vulnerable mental state. The court went on to note that it transpired that the medical examination of June 1994 to determine the applicant’s fitness for service had not been accurate, since already at the time it should have transpired that the applicant was not entirely fit to take up military service. (b) Proceedings before the Supreme Administrative Court On 9 July 2008 the applicant appealed to the Supreme Administrative Court (“CS”). He complained, inter alia , about the illogical outcome of the case; that even though the TAR considered that the applicant’s fitness for service examination had not been accurate the court had failed to pronounce itself on any responsibility and to award damages; that the TAR had considered the applicant’s interlocutory request to replace the expert as one for renewal and not replacement of the expert which was clearly due given the delay in performing his functions, leading to a total dismissal and a decision without the relevant information. By a partial judgment of 19 January 2010, the CS considered that a specialised medical examination was indeed necessary to determine the connection, if any, between the applicant’s infirmity and his military service. It ordered that such examination be carried out by the Medico-Legal Panel of the Defence Ministry (“ Collegio Medico Legale della Difesa ”) and that a report be submitted within thirty days. On an unspecified date the report of the Collegio Medico Legale della Difesa was filed. It confirmed the reports submitted by the Bari Medical Commissions and highlighted the relevance of pre-existing factors related to the individual, who suffered from a “chronic obsessive compulsive disorder, was lightly mentally retarded, had an altered personality and was prone to have marginal traits”. It concluded that at that date, according to the information available, the infirmity could not be considered dependent on or aggravated by ordinary military service. On an unspecified date the applicant’s ex parte report was filed with the court. It noted that the applicant had never shown any symptoms of psychotic illness before conscription into the military service and it was only after repeated punishment that such traits emerged. Therefore, even assuming he was predisposed, it was evident that it was this treatment that had caused the emergence of the illness. The implications of military service were generally of great emotional impact and a source of stress, which for a person mentally fragile or predisposed, unlike in the case of a healthy person, constituted the trigger to psychotic illnesses. The absence of the family and the applicant’s inability to relate to colleagues and superiors, in the absence of the required psychological support and in view of the repeated punishments, caused the appearance of the dysphoric syndrome in the applicant which later evolved into a chronic obsessive compulsive disorder. Thus, in the applicant’s case there was a causal link between the infirmity and the military service or at least the latter contributed to such development. On 12 November 2010 the applicant filed pleadings arguing that the court’s expert report could not be considered objective and impartial given the nature and composition of the Collegio Medico Legale della Difesa which had been appointed to carry out the examination, and which was an organ of the opposing party in the proceedings. He argued that the lack of transparency was highlighted by the fact that the applicant had recently become aware of other documents related to the case which the applicant had never obtained from the authorities, the substance of which was reflected in the report. By a judgment filed in the relevant registry on 4 February 2011 the CS rejected the applicant’s appeal, holding that the applicant’s infirmity was antecedent to his military service and that it had not been detectible during the examination in 1994. As to the failure to disclose documentation it considered that such documentation did not relate to the period during which the applicant had carried out military service. In any event the crux of the applicant’s complaint concerned the conclusions of the Collegio Medico Legale della Difesa ’s report which were in contrast with his theory. However, the CS considered that the report was not contradictory or illogical in itself, and anyway it was not for the court (at the appeal stage) to assess the merit of that report. In respect of the original medical examination to determine fitness for military service, the CS again adopted the findings of the Collegio Medico Legale della Difesa which considered that it had been possible for the applicant’s traits not to manifest themselves in the absence of particular stimuli. B.     Relevant domestic law Under Italian Law applicable at the relevant time, namely Article 138 of Presidential Decree no. 237 of 1964, failure to attend the medical visit to assess fitness for military service constituted an offence punishable with imprisonment for a maximum of two years. Failure to undertake military service constituted a crime of desertion according to Article 148 of the Military Penal Code of Peace punishable with imprisonment from six months to two years. Punishments in the military are of different degrees and include “ richiamo ”, “ rimprovero ”, “ consegna semplice ” and “ consegna di rigore ”. According to Article 11 of Law no. 416 of 11 March 1926 the Medico-Legal Panel of the Defence Ministry is directly dependent on the Ministry of Defence. It is composed of: “a) a General, who is a doctor, as president b) a Major General, who is a doctor, who acts as a substitute to the president, pertaining to a corps different to that of the president; c) fourteen doctors, officials of the army, of whom three Major Generals, as president of sections and eleven senior officials as members; d) seven doctors, officials of the Navy, of whom one Major General, as president of section and six senior officials as members; e) seven doctors, officials of the Air Force, of whom one Major General, as president of section and six senior officials as members; f) two doctors, senior police officials of the Corps of Public Security Guards as members: g) a Lieutenant Colonel or Major, doctor in permanent service, with the function of secretary without vote.” COMPLAINTS The applicant complained under Articles 2 and 8 of the Convention that his condition was as result of the compulsory military service he performed and that the authorities failed to protect his mental and physical integrity, both by negligently failing to detect his illness before conscription and during the military service where he was under their responsibility. Moreover, at a time when he was most deserving of protection he was repeatedly punished by the military, aggravating his mental health and subjecting him to treatment in violation of Article 3. Furthermore, the people responsible had not been held accountable. The applicant further complained under Articles 6 and 13 about the impartiality and independence of the Collegio Medico Legale della Difesa , crucial expert in the proceedings, whose conclusions the court adopted entirely, and the lack of disclosure of certain documents (for example, the full report of the applicant’s fitness examination; the report by the Lecce commander requesting a specialised visit) which did not enable a proper participation and equality of arms during the proceedings. The proceedings were, moreover, tainted by the fact that the applicant was unable to contest the findings of the report. Despite the fact that the expert report had only been submitted at the appeal stage, the CS had considered that, as an appeal body, it could not enter into the merits of that report. QUESTIONS TO THE PARTIES 1.     Assuming that the applicant was healthy at the time of being drafted and taking into account that he was discharged from the army on account of his illness, was the applicant subjected during his military service to treatment or punishment in breach of Article 3 of the Convention (see Tastan v   Turkey , no. 63748/00, 4 March 2008 and Chember v. Russia , no. 7188/03, ECHR 2008)?   2.     Assuming that the applicant was sick when he was drafted and that his health severely deteriorated during military service, did the military service performed by the applicant amount to ill-treatment or punishment, in breach of Article 3 of the Convention? In particular did the State fulfil its positive obligation to take measures designed to ensure that the applicant was not subjected to inhuman or degrading treatment or punishment (see Kayankin v. Russia , no. 24427/02, 11 February 2010)?   3.     Has the applicant’s right to private and family life been respected in the present case as required by Article 8 of the Convention, bearing in mind the specific circumstances of the case   ?   4.     Bearing in mind the entire circumstances of the case and particularly, the Collegio Medico Legale della Difesa ’s composition, procedural position and role in the proceedings, was the applicant afforded a fair hearing before an impartial tribunal and in accordance with the principle of equality of arms as required by Article 6 § 1 of the Convention?