Communicated on 28 August 2017

FIRST SECTION

Application no. 35814/14 Ashot MALKHASYAN against Armenia lodged on 23 July 2014

STATEMENT OF FACTS

The applicant, Mr Ashot Malkhasyan, is an Armenian national who was born in 1946 and lives in Yerevan. He is represented before the Court by Ms S. Safaryan, a lawyer practising in Yerevan.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is the father of Areg Mal khasyan, deceased at the age of 22.

In the summer of 2009, upon finishing university, Areg Malkhasyan was drafted into the Armenian Army.

On 26 June 2009 Areg Malkhasyan was assigned to military unit no. 25918, situated in the unrecognised Republic of Nagorno Karabakh.

On 4 July 2009 Areg Malkhasyan lost consciousness in the military unit and was transported to Mekhakavan military hospital where he was pronounced clinically dead. The medical card indicated the following clinical diagnosis: post-reanimation disease, gastrointestinal bleeding.

On 5 July 2009 Areg Malkhasyan was urgently transported by air ambulance to the central garrison military hospital in Yerevan, where he was placed in the intensive care unit with the diagnosis of post ‑ cardiopulmonary resuscitation syndrome, cerebral oedema (brain swelling), coma, bilateral aspiration pneumonia and gastrointestinal bleeding. He died on the same day.

1. The state of the applicant ’ s son ’ s health prior to his conscription

On 10 July 2008 an ambulance was called for Areg Malkhasyan who was violently vomiting a dark substance, was extremely weak and was experiencing epigastric pain. Areg Malkhasyan was diagnosed with, inter alia , cardiac insufficiency, Mallory-Weiss syndrome ( bleeding from a laceration in the mucous membrane between the stomach and oesophagus). He received appropriate treatment, as a result of which his condition stabilised and the bleeding stopped. He was discharged from Mikayelyan hospital on 21 July 2008 and instructed to remain under the surveillance of a gastroenterologist and to undergo an examination in 30 days.

In December 2008 Areg Malkhasyan underwent examinations due to his unsatisfactory state of health. He was diagnosed with, inter alia , hiatal hernia, Gilbert ’ s syndrome (elevated levels of unconjugated bilirubin in the bloodstream) and prescribed appropriate treatment, namely medication and a special diet. He was also advised to sleep with his head raised, and not to bend or to lift heavy things.

2. The applicant ’ s son ’ s conscription

In March 2009 Areg Malkhasyan was requested to appear before the Arabkir military commissariat in order to undergo an initial medical examination.

On an unspecified date, Areg Malkhasyan visited the Arabkir military commissariat and submitted his medical records to the relevant medical commission.

According to the applicant, in April 2009 his son asked to undergo an additional medical examination but military commissar A.U. refused to sign the doctor ’ s note referring him for further medical checks. Thereafter the applicant had visited the military commissar and asked him to sign the referral note, which the latter had refused to do in a very rude manner, stating that in any case the applicant ’ s son was going to be conscripted.

On 25 May 2009 the applicant submitted a written request for an additional medical examination for his son. On 29 May 2009 this request was refused by A.U. on the ground that the medical documents submitted had been sufficient to conclude that the applicant ’ s son was fit for military service.

The applicant sent similar requests to the Military Commissar of Armenia and the Chief of Staff of the Armenian Defence Forces.

Eventually Areg Malkhasyan was referred to undergo further medical examinations in Erebuni Medical Centre from 15 until 19 June 2009. It appears that upon A.U. ’ s instructions the surgeon of the military commissariat medical commission, M.S., participated in the applicant ’ s son ’ s examinations in Erebuni Medical Centre.

On 22 June 2009 the Erebuni Medical Centre delivered a conclusion based on the results of Areg Malkhasyan ’ s examinations with the following final diagnosis: gastrointestinal motility disorders induced by psychological stress.

On 25 June 2009 Areg Malkhasyan was summoned to the Central Medical Commission which, on the basis of the conclusion of 22 June 2009, found him fit for military service.

On 26 June 2009 Areg Malkhasyan was called to Arabkir military commissariat from where he was assigned to military unit no. 25918 in the Hadrut Region in Nagorno Karabakh.

3. The investigation into the circumstances of the applicant ’ s son ’ s death

It appears that on 4 July 2009 Areg Malkhasyan ’ s brother went to the military unit to visit him. Having learnt that Areg Malkhasyan had fainted on that day and been rushed to hospital, he filed a report to the effect that Areg Malkhasyan had suffered from a number of diseases before his conscription and that he had been drafted into the army unlawfully.

On the same date the Second Garrison Investigation Department made a decision to institute criminal proceedings into the matter under Article 376 § 1 (negligent attitude of an official towards military service) of the Criminal Code (“the CC”).

On 5 July 2010 the Fourth Garrison Investigation Department started an investigation into the circumstances of Areg Malkhasyan ’ s death.

On the same date an autopsy was ordered.

On 6 July 2009 the Minister of Defence ordered an internal investigation into the circumstances of Areg Malkhasyan ’ s death.

On 10 July 2010 the Investigative Department of the Ministry of Defence took over the investigation. The proceedings instituted on 4 July 2010 and the investigation into the circumstances of Areg Malkhasyan ’ s death were joined in one case.

It appears that several servicemen from military unit no. 25918 were questioned shortly after Areg Malkhasyan ’ s death and submitted that the latter had not looked healthy, he had been pale and very thin.

On 29 July 2009 A.K., the head of the conscript assembly point medical commission, was questioned. He stated, inter alia , that on 5 July 2010, having learnt that Areg Malkhasyan had been transferred to the Central Military Hospital, he had gone to the hospital and had seen medical documents which sufficed to cast doubt on the Erebuni Medical Centre ’ s conclusion regarding his state of health. Having familiarised himself with the full medical history collected at Erebuni Medical Centre and the results of examinations therein, and comparing them with the content of that conclusion, he was able to submit that those examinations had intentionally not been taken into account, so that Areg Malkhasyan would be found fit for military service. If the relevant information had been reflected in the conclusion, he would have been found unfit for military service.

On the same date A.P., the head of the military-medical department of the Ministry of Defence, was questioned and stated, in particular, that Areg Malkhasyan would have been found unfit for military service, had the military commissariat and the Central Medical Commission properly examined his medical records.

On 26 August 2009 the Minister of Defence issued an order, based on the results of the internal investigation, whereby a number of persons who had been involved in Areg Malkhasyan ’ s conscription, including A.U. and A.K., were reprimanded. The order, in so far as relevant, reads as follows:

“... the Central Medical Commission, having in its possession all relevant documents concerning [Areg Malkhasyan ’ s] illnesses, was obliged to treat him differently by sending him for thorough examinations; it should have made a correct decision concerning [his] conscription.

...

- the medical commission of the Arabkir Military Commissariat had recognised [Areg Malkhasyan] ‘ fit for combatant service ’ without in-patient examination in a situation where the medical commission had difficulty in assessing the condition of his stomach and the hiatus hernia indicated in the medical records,

- the military commissar had referred [Areg Malkhasyan] for examination only when ordered to do so by his superior,

- the military commissariat, Erebuni Medical Centre, the Central Medical Commission failed fully to take into account ... medical documents submitted by [Areg Malkhasyan],

- the results of examinations carried out in Erebuni medical centre between 15 and 19 June of the current year have not been full and objective, based on which the military commissariat and the Central Medical Commission have recognised [Areg Malkhasyan] as ‘ fit for combatant service ’ ;

- medical documents ... have not been included in [Areg Malkhasyan ’ s] personal file,

- the numbering of documents (16/22) in the personal file is mentioned with corrections and changes,

...

- [A.U.], according to the statement of [Areg Malkhasyan ’ s] brother, had an unjustified argument with [Areg Malkhasyan ’ s] relatives, treating them rudely and expressing doubt as to the veracity of documents submitted by the parent...”

On 12 August 2009 the results of the autopsy were received. In his report no. 609/29 the forensic expert concluded that the cause of Areg Malkhasyan ’ s death had been coronary artery disease due to rheumatic pancarditis, cardiomyopathy, rheumatic coronaritis, diffuse cardiosclerosis, aortic and pulmonary valve (semilunar valve) connective tissue disorder from which the deceased had suffered while alive and which were directly linked to his death. It was further mentioned in the report that Areg Malkhasyan had also suffered from Mallory-Weiss syndrome, chronic oesophagitis with superficial erosions of the oesophagus and chronic gastritis, which were not directly linked to his death.

On 14 September 2009 A.U. was questioned and stated, in particular, that he had ordered the removal of ten documents from Areg Malkhasyan ’ s personal file. The medical commission of the military commissariat, and he himself, had serious doubts as to whether Areg Malkhasyan was indeed ill and he had therefore instructed M.S. to be present during his medical checks at Erebuni Medical Centre. From 15 to 19 June 2009 M.S. had been present during Areg Malkhasyan ’ s medical examinations at Erebuni Medical Centre in order to ensure objectivity.

On 26 January 2010 the investigator ordered a forensic medical examination to be conducted by a commission of experts.

On 3 May 2010 the commission of forensic medical experts delivered report no. 20. The relevant parts of this report read as follows:

“... the diseases that have caused the death, as determined by the forensic medical examination ... had originated before 2008, which fact is supported by the morphological changes to the body, as well as the typical changes recorded on the electrocardiogram performed in Mikayelyan hospital in 2008 ...

... physical and psycho-emotional pressure during military service could have had a negative effect on [Areg Makhasyan ’ s] coronary-arterial diseases, thus aggravating his health condition.

... from a medical point of view it was necessary to prescribe for Areg Malkhasyan a special diet, and limited physical and psycho-emotional pressure. Although in the present case gastro-enterological diseases were not directly linked to the death, they could have ... contributed to the cause of death.

... According to the records of Areg Malkhasyan ’ s examinations at Erebuni Medical Centre, erosive gastritis and superficial duodenitis had been diagnosed and had not been reflected in the conclusion on the state of health...

If Areg Malkhasyan had undergone relevant examinations ... it would have been possible to diagnose the heart pathology that was the cause of his death as well as his other diseases... if this had been diagnosed and relevant treatment administered ... it would have been possible to avoid the further deterioration of his health and also his death.”

On 24 June 2010 the investigator brought charges under Article 315 § 2 of the CC (official negligence) against T.G., a therapist, who at the relevant time was a member of the Central Medical Commission. The investigator ’ s decision stated, in particular, that T.G. was being charged for having failed to undertake necessary measures in order to ensure Areg Malkhasyan ’ s complete medical examination and had unlawfully recognised him fit for military service when he was not.

On 16 July 2010 the investigator charged A.K. with aggravated negligent attitude towards service, under Article 376 § 1 of the CC. The investigator ’ s decision stated, in particular, that A.K. was being charged with having failed to take into account the information concerning Areg Malkhasyan ’ s state of health, which was indicated in medical documents submitted by him, and to send him for additional examinations, as a result of which the latter, who was not fit for service, had been drafted into the army unlawfully.

On 30 August 2010 the investigator brought charges under Article 315 § 2 of the CC (official negligence) against G.H., a neurologist, who was a member of the Central Medical Commission at the relevant time. The investigator ’ s decision stated, in particular, that G.H. was being charged with failing to undertake necessary measures to ensure Areg Malkhasyan ’ s complete medical examination and recognising him fit for military service as a result of which the latter, who was not fit for service, had been drafted into the army unlawfully.

On 2 November 2010 the investigator decided to order a combined forensic medical and military-medical examination, on the ground that such an examination was the only possible way to clarify a number of discrepancies which had arisen during the investigation.

On 12 November 2010 a commission of experts was formed, based on the relevant order of the Minister of Health for the purpose of conducting the combined forensic examination.

On 17 September 2010 the commission delivered its report which stated, inter alia , that apart from his gastro-enterological disorders, Areg Malkhasyan had suffered from coronaritis and cardiosclerosis which had been asymptomatic and without functional changes since he had not made any complaints in this respect. Areg Malkhasyan ’ s additional treatment and postponement of his conscription could possibly have prevented the fatal outcome. Also, it cannot be ruled out that the accumulation of such pathological conditions might have led to the same outcome in civilian life.

On 10 January 2014 the applicant lodged a complaint with the District Court seeking recognition of the violation of his son ’ s right to life as well as of the ineffectiveness and unjustified length of the investigation.

By decision of 28 February 2014 the District Court left the applicant ’ s complaint unexamined. This decision was upheld in the final instance by the Court of Cassation on 23 May 2014.

On 17 July 2014 the investigator decided to discontinue the prosecution of T.G., A.K. and G.H. for absence of corpus delicti and to terminate the criminal proceedings on the ground that Areg Malkhasyan ’ s death had resulted from asymptomatic heart diseases, the symptoms of which could not have been felt but which later, as a result of a change of lifestyle and routine, had led to the aggravation of asymptomatic pathologies resulting in heart failure. The diseases in question were not detected and could not have been detected even prior to conscription, either in the clinics where Areg Malkhasyan had previously been examined, or subsequently by the doctors who had examined him during the process of conscription. In this respect the investigator relied, in particular, on the results of the combined forensic examination given in the report delivered on 17 September 2011.

The applicant disputed the investigator ’ s decisions of 17 July 2014 before the Military Prosecutor, who rejected his complaint.

On 13 August 2014 the applicant requested judicial review of the above decisions of the investigator and Prosecutor.

By decision of 11 November 2014 the Arabkir and Kanaker-Zeytun District Court of Yerevan (“the District Court”) dismissed the applicant ’ s complaint and fully upheld the decisions in question.

The applicant lodged an appeal which was rejected by the Criminal Court of Appeal on 27 December 2014.

The applicant lodged an appeal on points of law whereby he requested that the lower courts ’ decisions, mentioned above, be quashed and the case remitted for a fresh examination. The applicant ’ s appeal was admitted for examination by the Court of Cassation.

By a decision of 5 June 2015 the Court of Cassation partially granted the applicant ’ s appeal. It quashed the District Court ’ s and Co urt of Appeal ’ s decisions of 11 November and 27 December 2014 respectively and adopted a new decision ordering the investigating authority to remedy the violations of the applicant ’ s rights arising from the criminal proceedings concerning the death of his son. The relevant parts of this decision read as follows:

“ ... Turning to the circumstances of the present case, the Court of Cassation notes that there is ample evidence in the case file showing that conscript [Areg Malkhasyan] suffered from a number of illnesses ... Nevertheless, after examination by the Arabkir Military Commissariat medical commission, Erebuni Medical Centre and then by the Central Military Medical Commission, [Areg Malkhasyan] was found fit for military service and drafted into the army ...

The Court of Cassation finds it necessary to note that it is clear from the content of the combined forensic examination report [delivered 17 September 2011] that only coronaritis and cardiosclerosis were of an asymptomatic nature, which finding was based on the absence of complaints by [Areg Malkhasyan] while alive ... This finding does not mean that the absence of a person ’ s complaints rules out the objective possibility of diagnosing the above-mentioned coronary diseases via relevant examinations ... Therefore, the Court of Cassation finds that the investigator ’ s conclusion that [Areg Malkhasyan ’ s] coronary diseases could not have been detected by medical professionals is not substantiated...

Moreover, in the circumstances of the existence of two forensic examinations, medical and committee ... it is not clear from the investigator ’ s decision to appoint a combined forensic medical and military medical examination ... whether it is additional or repeated... the above-mentioned circumstances may cast serious doubts on the results and credibility of the forensic examination in question.

... the investigative authorities have failed duly to consider ... the following facts:

1) there is a significant body of evidence in the case file ... establishing that the results of [Areg Malkhasyan ’ s] examinations by the medical commission of Erebuni Medical Centre have not been fully reflected in the conclusion submitted to the Central Medical Commission ... In particular:

- the gastroenterologist ’ s diagnosis of ‘ erosive gastritis, superficial duodenitis, gastrointestinal motility, hiatus hernia ’ has not been reflected in the conclusion on the state of health, the neurological diagnosis ‘ vegetative vascular dystonia with crises ’ has not been correctly formulated.

... the Court of Cassation notes that the case file contained ample evidence that [Areg Malkhasyan] was not fit for military service due to his state of health... Whereas his state of health was not objectively and fully assessed by the doctors and (or) reflected in the conclusion concerning his state of health.

... the investigator has failed to establish the reasons for not carrying out the relevant medical examinations and for not reflecting objectively and completely the results of examinations that had been carried out in the ... conclusion ...

... the investigator has failed to make a proper legal assessment ... of [A.U. ’ s] actions... [A.U.] has stated that he had ordered the removal of ten documents from [Areg Malkhasyan ’ s] file ... However, the investigator has failed to clarify the purpose for which A.U. had ordered the removal of documents from [Areg Malkhasyan ’ s file] especially documents that could have had crucial importance for determination of the issue of whether he was fit for military service. Also, the investigator had not established whether [A.U.] was authorised to make such an order.

... the investigator has failed to establish whether the Arabkir Military Commissariat has interfered with the professional activity of the doctors of Erebuni Medical Centre by having sent there [its person, M.S.]...

... the Court of Cassation notes that the reasonable time-limits for investigation have been grossly violated in the present case...”

B. Relevant domestic law

Article 376 § 1 states that a military official ’ s negligent attitude towards service, which has caused considerable damage, shall be punishable by temporary exclusion from military service for a maximum period of two years or a maximum of two years ’ military confinement or a maximum of three years ’ imprisonment. The same offence which has caused grave consequences shall be punishable by three to six years ’ imprisonment (Article 376 § 2).

Article 315 § 2 provides that failure by an official to carry out or to carry out properly his duties as a result of a negligent attitude towards service, or acting in bad faith, which has negligently caused a person ’ s death or other grave consequences shall be punishable by a maximum of five years ’ imprisonment.

COMPLAINTS

The applicant complains under Article 2 of the Convention that his son ’ s death resulted from inadequate assessment of his state of health during his conscription, as well as his remote placement. The applicant further complains under the same provision and Article 13 that the authorities failed to conduct an effective investigation into 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?

2. Having regard to the procedural protection of the right to life (see Öneryıldız v. Turkey [GC], no. 48939/99, § 89, ECHR 2004 ‑ XII), was the investigation by the domestic authorities in the present case in breach of the guarantees under Articles 2 and 13 of the Convention, as alleged by the applicant?