Published on 10 May 2021

FOURTH SECTION

Application no. 18635/16 Movses KHACHATRYAN against Armenia lodged on 25 March 2016 communicated on 22 April 2021

SUBJECT MATTER OF THE CASE

The applicant is the father of Hayk Khachatryan, who died at the age of eighteen as a result of a serious illness developed during his mandatory military service.

On 1 June 2011 Hayk Khachatryan was drafted into the army.

From 9 a.m. on 6 December 2011 until 1 a.m. on 7 December 2011 Hayk Khachatryan was put on uninterrupted patrol, during which he felt cold and complained of pain in his face. On 8 December 2011 he was admitted to the medical service of the military unit complaining of acute facial pain. He was diagnosed with neuritis of the frontal nerve and transferred to the Central Military Hospital of the Ministry of Defence of Armenia (the CMH). There he was diagnosed with frontal nerve mononeuropathy and his complaints of pain in the abdomen were noted. On 28 December 2011 he was examined by a doctor who noted that there was no “acute surgical pathology” linked to his complaints of pain in the abdomen and that he had contracted varicella (chicken pox). An infectious disease specialist subsequently confirmed that diagnosis and considered that inpatient treatment was required in a hospital specialised in the treatment of infectious diseases.

On 29 December 2011 Hayk Khachatryan suffered convulsions accompanied by loss of consciousness and foaming from the mouth. On the same date he was transferred to Republican Nork Infectious Diseases Clinical Hospital, where he was placed in the intensive care unit. He was eventually diagnosed with fulminant varicella with visceral involvement and toxic encephalopathy. On 30 December 2011 Hayk Khachatryan died in the same hospital.

The internal investigation into the circumstances of Hayk Khachatryan ’ s death carried out by the Ministry of Defence established breaches in the organisation of patrols on 6 and 7 December 2011 and concluded that the commanding officers had failed to ensure a safe environment for military servicemen. It was further established that the causes of the applicant ’ s son ’ s serious illness had been the poor organisation of military service, the lack of proper guidance of soldiers by their commanding officers, as well as the poor organisation of work and lack of appropriate medical care in the CMH. Based on those findings, the Minister of Defence issued an order imposing disciplinary sanctions - namely reprimands and warnings - on a number of commanding officers as well as the medical personnel of the CMH.

Within the framework of the criminal proceedings instituted on account of Hayk Khachatryan ’ s death on 9 January 2012, charges were brought against M.M., the head of the neurological department of the CMH, and M.Mik ., the head of the CMH, under Article 376 § 1 of the Criminal Code (negligent attitude of an official towards military service).

In the course of the trial before Erebuni and Nubarashen District Court of Yerevan, the applicant brought a civil claim against M.M. and M.Mik seeking civil damages. This claim was not examined.

Following two rounds of judicial proceedings, on 11 July 2017 the Criminal Court of Appeal terminated the case against M.M. and M.Mik . by application of the statutory limitation of criminal liability. The applicant lodged an appeal on points of law, which was declared inadmissible for lack of merit by the Court of Cassation on 29 November 2017.

Relying on Articles 2, 3 and 13 of the Convention, the applicant complains that the State failed to protect his son ’ s life during his military service, including by failing to provide him with prompt and adequate medical care. He further complains that the domestic authorities failed to conduct an effective investigation into the circumstances of his son ’ s death.

QUESTIONS TO THE PARTIES

1. Was the applicant ’ s son ’ s right to life, guaranteed by Article 2 of the Convention, violated in the present case?

In particular, having regard to the State ’ s positive obligation to protect the right to life, was there a violation of that provision in the instant case having regard to the manner in which the applicant ’ s son ’ s military service was organised, including the medical treatment provided to him (see Muradyan v. Armenia , no. 11275/07 , §§ 132-33, 24 November 2016; and Mustafayev v. Azerbaijan , no. 47095/09, §§ 52-54, 4 May 2017)?

2. Having regard to the procedural protection of the right to life, was the investigation in the present case by the domestic authorities into the death of the applicant ’ s son in breach of Article 2 of the Convention (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05 , §§ 169 ‑ 82, 14 April 2015; Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, §§ 214-21, 19 December 2017; Muradyan , cited above , §§ 134-36)?

3. Did the applicant have an effective remedy for his complaints, as required by Article 13 of the Convention?