February 14, 2025
By Alfred Benny Auner
T.P. died during a ‘heat march’, merely one month into his compulsory military service. Although the decision to hold the march in extreme temperatures was considered ‘problematic’ by national authorities, and the military personnel involved acted negligently after T.P. collapsed, the ECtHR, in its judgment of 26 November 2024, A.P. v. Austria (1718/21), found no violation of Article 2 ECHR.
Read more: A.P. v. Austria: Death of Conscript During ‘Heat March’ – The Question of CausalityAs T.P.’s death presumably could not have been prevented, the Court did not review the national rules nor the conduct of the military personnel. Generally, Strasbourg does not review national law or practice in abstracto. There always must be a ‘causal link’ between the violation of State obligations and the damage. In this case, this requires a causal link between the heat march, the ways in which the State can be held accountable for it, and the death of T.P.
However, the Court’s case law is not consistent as to what causation exactly entails. This uncertainty may undermine the legitimacy of the Court’s jurisprudence: While in other judgments on Article 2 ECHR, Strasbourg has taken a more lenient approach to the question of causation, it applied a strict ‘factual causality’ in this one. Without further elaboration, Strasbourg applied a conditio sine qua non requirement, leading to the finding of non-violation.
The applicant’s son, T.P., had been performing his compulsory military service for one month, after having been declared medically fit. In the afternoon of 3 August 2017, with temperatures rising above 30°C, first lieutenant K.K. ordered a 15 km cross-country ‘heat march’. He allowed lighter uniforms and equipment due to the forecast, but medical support remained in the barracks.
After walking 3.4 km in direct sunlight, T.P. lay on the ground and complained that his feet and skin were burning. Squad leader A.W. and his fellow conscripts urged him to continue. A short distance later, T.P. lay down again and asked for a doctor. A.W. ordered the other conscripts to give T.P. shade and water. T.P. continued walking.
After about 20 to 40 meters he fell to the ground, shaking and with his eyes rolling back. At first A.W. thought T.P. was faking. When A.W. realized the urgency of the situation, he called his superior. T.P. was taken back to the barracks, rather than to the hospital. During this transport, he collapsed. At the barracks, T.P. was laid on the hot asphalt in direct sunlight. His body temperature was measured at over 42°C. The emergency doctor immediately took him to the closest hospital, where he was pronounced dead.
Criminal investigations into T.P.’s death were initiated on the same day. A forensic autopsy was ordered immediately but was performed only four days later. The court-appointed forensic expert concluded that T.P. had died of heart failure caused by overheating of his body in conjunction with an acute septic infection. Two different bacteria were found in his blood. In two supplementary reports the expert clarified that due to the lethal bacterial infection, death would most likely not have been prevented even if the emergency doctor had been notified immediately and intervention had taken place on the spot.
Therefore, the public prosecutor did not initiate criminal proceedings against squad leader A.W., although he had acted negligently. The criminal investigation against K.K. was discontinued. His decision to hold the march was deemed ‘problematic’, because the form in which it was held had been abolished in the training regulations since 2015. However, it had not been prohibited under the applicable decree, which allowed for wide discretion (see below). Criminal proceedings against the other military staff involved were also discontinued. The applicant’s request to the Regional Court to continue investigations was dismissed. In addition, the case was investigated by a special commission set up by the Ministry of Defence.
The ‘decree on the performance of military service duties during extreme outside temperatures’ (‘decree’) regulates service in extreme heat or cold. The version in force at the time of the incident recommended – but did not prescribe as binding – certain additional measures when temperatures exceeded 28°C in the shade. Foot marches, in particular in direct sunlight, should be avoided. The participation of trained medical personnel should be ensured during training outside of the barracks. A complaint by a subordinate about his physical condition should initially be believed without reservation and he should be taken to a doctor. Following the events of the present case, the decree was replaced in November 2018.
The Court found no violation of Article 2 ECHR in its procedural limb. The criminal investigations were sufficiently independent, diligent and prompt. It merely noted that the autopsy was performed four days after T.P.’s death, which had an impact on the medical findings.
Regarding the extent of the investigation into the cause of T.P.’s death, the Court concluded that the national authorities had taken all reasonable investigative steps available to them in order to establish, to the extent this was medically possible, the cause of T.P.’s death. In this respect, it did not find it particularly relevant that the exact cause of death could not be established. The applicant did not elaborate on any other possible cause of death and did not claim that T.P. could have survived if he had been taken to the hospital immediately.
The ECtHR also found no violation of Article 2 ECHR under its substantive limb. The Court started its reasoning with affirming that conscripts are in a vulnerable position, as they routinely engage in dangerous activities (such as ‘heat marches’) during military service. Thus, States have a positive obligation to protect them, i.e. to adopt special regulations and sufficient supervision.
However, the Court stressed that it did not review a Contracting State’s law and practice in abstracto. Even if the regulatory framework was deficient, it must have operated to the victim’s detriment. It noted that T.P.’s death had been preceded by questionable acts or omissions on the part of State officials: K.K. had ordered the ‘heat march’, which took a form that did not exist in the training regulations. Medical personnel were not present at the march. A.W. had contacted his supervisor rather than seeking medical assistance.
However, according to the evidence gathered by the national courts, T.P. would not have survived even if the military personnel had acted diligently. The Court was therefore unable to establish a causal link between the national law, the acts and omissions of the military personnel and T.P.’s death.
Because the ECtHR did not establish a causal link, it did not have to examine the regulatory framework and the inadequate response of the military personnel involved. The Court’s findings were criticised in the dissenting opinion of judge Vehabović, who voted for a violation of Article 2 ECHR because the military personnel had acted in violation of the decree.
Both the majority’s findings and judge Vehabović’s opinion apply a different standard of causality, both without elaborating on the issue. This requires a more detailed analysis of the level of causality applicable in the context of Article 2 ECHR. For a critical assessment of the procedural limb of Article 2 ECHR, which is not discussed below, see judge Vehabović’s dissenting opinion.
As mentioned above, the ECtHR does not review the relevant law and practice in abstracto. It must have operated to the victim’s detriment in order to be assessed by the Court (Lopes de Sousa Fernandes v. Portugal § 188). The reasonable measures which the domestic authorities failed to take must have had a real prospect of altering the outcome of the events or mitigating the harm (Lyubov Vasilyeva v. Russia § 62). In other words, there must be a causal link between the (deficient) regulatory framework, the negligent acts and omissions of the State officials and the incident.
The Court’s case law is unclear as to what exactly causation entails. Different contexts of Article 2 ECHR require different standards of causality. Violations of negative obligations under Article 2 ECHR, like the unlawful use of lethal force, directly affect victims and involve a direct form of causality (‘factual causality’; for the definition see Stoyanova, 2018:309). In the context of positive obligations, a different level of causality is regularly applied. In case of natural disasters, a causal link has been established between serious administrative flaws – not the event itself – and the death/injuries of the victims (Budayeva and Others v. Russia § 158). Moreover, in the context of climate change, the causal link between the acts or omissions of public authorities and the (risk of) harm is necessarily more vague and indirect (Verein KlimaSeniorinnen Schweiz and Others v. Switzerland § 439). From a dogmatic perspective, this is justified by the effectiveness doctrine: To guarantee practical applicability and effectiveness of the ECHR, different standards of causality must be applied in different contexts.
However, from a dogmatic point of view as well as for the foreseeability and legitimacy of the Court’s jurisprudence, it is problematic to apply different standards of causation in the same context of Article 2 ECHR. While in A.P. v. Austria the Court went with the standard of direct ‘factual causality’, in the comparable case of Validity Foundation on behalf of T.J. v. Hungary it took a more lenient approach. In this case, the person concerned was mentally disabled and had been placed in a social care home (thus put under the exclusive control of the authorities) where the quality of care was known to be inadequate. She died of pneumonia in the hospital. The Hungarian authorities discontinued the criminal proceedings against the representatives of the social care home on the grounds that death was caused by pneumonia and not by inadequate care.
In contrast to A.P. v. Austria, the ECHR found a violation of Article 2 ECHR (in its procedural limb) in Validity Foundation on behalf of T.J. v. Hungary, because the investigations should not have focused on the direct cause of death, but on the systematic failures in the care system instead. The failure of the authorities to provide an adequate response to the deficient situation in the social care home violated Article 2 ECHR in its substantive limb (see Stoyanova’s post for more detail). Apparently, in Validity Foundation on behalf of T.J. v. Hungary, the Court applied a much broader, more indirect concept of causality than in A.P. v. Austria. The dogmatic foundation for this divergence is not evident.
Moreover, in particular in the context of the positive obligations under Article 2 ECHR, the objectives and purpose of the Convention as an instrument of international human rights law as well as the role of the Court seem to generally reject the strict application of ‘factual causality’ (in detail Stoyanova, 2018:309). The ECtHR must determine the international law responsibility of a Contracting State, i.e. assess whether the State has violated the ECHR (Article 19 ECHR). In contrast, domestic criminal proceedings, for example, are meant to decide on the criminal liability of individuals: Strict ‘factual causality’ is applied. Non-personal factors, in particular the adequacy and the supervision of the domestic legal framework, are generally not taken into account.
The international-law aspect of responsibility was hardly considered in A.P. v. Austria. The Court mentioned the necessity to distinguish between criminal-law liability and international law responsibility (§ 150). On the merits, however, it considered only the evidence produced in the national criminal proceedings and examined the acts/omissions of the military personnel involved in a narrow, person-centred way (see § 178 ).
Under Article 2 ECHR, a State must ensure through a system of rules and sufficient control, that the risk for the person concerned – in particular from activities which are generally dangerous, such as military tasks – is reduced to a reasonable minimum (e.g. Boychenko v. Russia § 77). Due to the strict application of ‘factual causality’, the Court did not examine these obligations.
The ‘decree’ regulated service in extreme temperatures. It granted considerable discretion as to whether a ‘heat march’ should be held and as to the conditions during the march (§§ 130-131). With discretion, however, comes the need for control to ensure that the discretion was exercised diligently and that – since marches were permissible even in the harshest conditions – emergency care was functional. The poor response of almost all the military personnel involved points to the inadequacy of the supervision and of the rules themselves. It was not without reason that the decree was revised after the incident.
A.P. v. Austria illustrates that the outcome of a case depends on the standard of causality applied (compare Gerards, 2020:220). The ECtHR opted for causality in the form of a conditio sine qua non requirement (‘factual causality’). As the failures of the military personnel did not directly cause T.P.’s death, they were not examined. However, in the light of States’ positive obligations, the standard of ‘factual causality’ does neither correspond to the international law nature of the proceedings before the Court, nor does it guarantee the practical and effective application of Convention rights. Moreover, for dogmatic reasons and from the perspective of foreseeability and legitimacy of the ECtHR jurisprudence, a uniform standard of causality must be applied in comparable cases within the same context of Article 2 ECHR.
The author has published a German case note on A.P. v. Austria in Newsletter Menschenrechte, 2024, vol. 33(6), pp. 465-466.
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