Communicated on 19 June 2017

FIRST SECTION

Application no. 5766/17 Marina BOTOYAN against Armenia lodged on 29 December 2016

STATEMENT OF FACTS

The applicant, Ms Marina Botoyan , is an Armenian national, who was born in 1943 and lives in Artik . She is represented before the Court by Ms A. Melkonyan and Ms H. Harutyunyan, lawyers practising in Yerevan, and Ms A. Aghajanyan , a legal expert.

A. The circumstances of the case

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

On 6 February 2008 the applicant fell on the stairs and broke her left leg.

On the same date she was taken to Artik Medical Centre by ambulance. It appears that the applicant was admitted for inpatient treatment, diagnosed with a left distal tibia (shank bone) closed comminute fracture with significant displacement.

On 7 February 2008 doctor A.A., a general surgeon at Artik Medical Centre, operated on the applicant. The surgery included the insertion of metal implants in the applicant ’ s leg to stabilise the bone fracture.

According to the applicant, she was not informed of the origin of the metal implants that were used – she was not asked to pay for them, nor had they been obtained within the publicly-funded medical assistance scheme. The doctor informed her that the surgery was free of charge and had been performed within the publicly-funded medical assistance scheme.

On 13 March 2008 the applicant was discharged. She claims that she was not provided with any medical documents attesting her state of health.

Following her discharge from hospital, the applicant remained under A.A. ’ s supervision: he visited her several times at home, enquired about her condition and personally took care of the wound.

In the meantime, the applicant ’ s wound became infected, she had fever regularly and her leg started to hurt.

On 26 May 2008 the applicant underwent a further operation at the G. Gyulbenkyan surgical hospital in Gyumri. During the operation the metal implants were removed from her leg. She remained under medical supervision for a month following her discharge.

It appears that the applicant sent complaints to various State officials and bodies seeking to establish A.A. ’ s responsibility for the damage caused to her health.

On 12 October 2009 the Department of Health and Social Security of Shirak Regional Administration Body held a consultation with the participation of, inter alia , doctor A.A. and the head of Artik Medical Centre. The relevant parts of the record of this consultation read as follows:

“... On 7.02.2008 osteosynthesis with orthopaedic plate and screw was performed. The surgery was correctly performed; the fixation of the bone fracture was done with the use of State standard metal implantable devices... At present the patient has post ‑ traumatic deformative arthrosis of the ankle joint ... Deformative arthrosis is a common complication for such types of inner joint fracture ... and has no connection with the surgery ...”

On 10 January 2010 the applicant qualified for permanent disability for left ankle severe joint contracture after a shank bone fracture, with lower extremity mobility limitation.

On 4 October 2010 the Department of Health and Social Security of Shirak Regional Administration Body held another consultation and reached a similar finding to the one reflected in the record of the consultation held on 12 October 2009.

On 17 December 2013 the applicant filed a criminal complaint against A.A. for medical malpractice resulting in grave damage to her health.

On 26 December 2013 the police instituted criminal proceedings under Article 130 § 1 of the Criminal Code (medical negligence).

On the same date the investigator ordered a forensic medical examination of the applicant.

In the course of the investigation A.A. was questioned as a witness. He stated, in particular, that he had worked as a general surgeon at Artik Medical Centre since 1998. On 7 February 2008 he had operated on the applicant: bone fractures had been stabilised with metal orthopaedic plates and screws of State standard. During surgical bandaging, a collection of pus had been discovered, but this had cleared up and the applicant had been discharged in a good state of health. He had regularly visited the applicant after her discharge from hospital and offered her surgical removal of the metal implants, but she had refused, stating that she wished to have the operation in another hospital.

On 21 February 2014 a Commission of forensic medical experts delivered a report. The relevant parts of the report read as follows;

“... [ the applicant ’ s] medical examinations, diagnosis and treatments were carried out correctly and in a timely manner.

... According to submitted medical records, the first operation ( osteosynthesis ) was performed correctly but later a complication had developed in the form of an infection which had brought about ostheomyelitis , the reason for which is impossible to determine precisely at present ...”

On 7 June 2014 the investigator decided to terminate the proceedings on the ground that A.A. ’ s actions lacked corpus delicti . The decision referred, inter alia , to the forensic medical report of 21 February 2014, the conclusions dated 12 October 2009 and 4 October 2010 of the Department of Health and Social Security of Shirak Regional Administration Body and the statements of the applicant, A.A. and other doctors.

On 20 June 2014 the applicant appealed against the investigator ’ s decision to the Prosecutor on the ground that, inter alia , in the course of the investigation several issues had not been clarified, notably whether A.A. had had the right to perform the surgery, how long the metal implants should have stayed in her body, her reasons for not wanting A.A. to perform the metal implant removal surgery and the type of post-operative care she should have been provided with and by whom. Also, she had not been informed of possible complications that could arise from the surgery.

By a decision of 30 June 2014, the Prosecutor dismissed the applicant ’ s appeal finding, in particular, that it had been established that A.A., being a qualified doctor, had the right to perform the surgery in question and had performed it correctly.

By application of 25 August 2014, the applicant sought judicial review of the investigator ’ s and Prosecutor ’ s decisions of 7 and 30 June respectively.

On 28 November 2014 the Shirak Regional Court (“the Regional Court”) fully upheld the investigative authorities ’ decision not to prosecute A.A.

The applicant lodged an appeal.

On 18 February 2015 the Criminal Court of Appeal granted the applicant ’ s appeal and, having quashed the Regional Court ’ s decision of 28 November 2014, remitted the case to the prosecution. The relevant parts of its decision read as follows:

“... according to the materials of the criminal case [A.A.] is a qualified “General surgeon” but does not have specialisation in “Traumatology and orthopaedics”. That is, [A.A.] did not have the right to perform surgery on a person diagnosed with “Left distal tibia (shank bone) closed comminute fracture with significant displacement”.

... the [forensic medical] experts had not been informed that, following her discharge, [the applicant] had been taken care of by [A.A.] who had regularly visited the patient; documents attesting [A.A. ’ s] specialisation had not been submitted, therefore the experts did not have all the necessary information concerning the case at their disposal and their report cannot be considered to be full and accurate, hence it is necessary to question further the experts to clarify the above-mentioned issues and, if necessary, order an additional forensic medical examination by a commission.

The forensic [medical] examination should also clarify whether ... the complications and the disability had resulted from the doctor ’ s [surgery and post ‑ operative care].”

On 5 March 2015 the criminal proceedings were resumed.

An additional forensic medical examination was ordered on 30 March 2015.

On an unspecified date A.A. was additionally questioned as a witness. He submitted, in particular, that the metal implants used in the applicant ’ s surgery were of State standard and that they had not been obtained by Artik Medical Centre. At some point in 2007 a patient with a fracture had left him metal implantable devices during a consultation and stated that these could be used for surgery on other patients. The metal implants in question, which were new and disposable, were used in the applicant ’ s surgery after disinfection.

On 15 July 2015 the commission of forensic medical experts delivered its report, the relevant parts of which read as follows:

“... According to the submitted medical records and X-ray images ... [the applicant ’ s] examinations at Artik Medical Centre were carried out in a timely manner and the resulting ... diagnosis was correct. The surgical treatment method offered to [the applicant], that is osteosynthesis with metal plates and screws, was indicated and, according to the X-ray images, was generally performed correctly... As regards the complications which arose at the post-operative stage ... not ruling out the probability of their development even in the case of quality specialist medical assistance... it is not possible to state with certainty that there is a direct causal link between the actions of Artik Medical Centre personnel and the complications in question.

... taking into account [A.A. ’ s] narrow specialisation and in the absence of an orthopaedic trauma specialist, given the nature of [the applicant ’ s] trauma, her transfer to a medical establishment having a relevant orthopaedic trauma unit was required so that specialist medical care could be provided. However, taking into account the nature of the trauma received, it is not possible to make definitive predictions as to whether or not in such a case it might have been possible to avoid the development of such complications at the post-operative stage.

... based on submitted medical records and the materials of the criminal case, it is not possible to conclude definitively that [the applicant ’ s] post-operative complications ... have resulted from failures, omissions or errors on the part of the medical personnel of Artik Medical Centre.

... in view of [A.A. ’ s] specialisation ... and the nature of [the applicant ’ s] trauma, [A.A. ’ s] duty was to ensure emergency first aid medical assistance (immobilisation of the fracture, administration of analgesics ...). As regards [the applicant ’ s] specialist treatment ... it was not within [A.A. ’ s] specialist qualification but was within the specialisation of an orthopaedic traumatologist . The provision at Artik Medical Centre of this type of medical assistance by a surgeon who was not a qualified orthopaedic traumatologist is an organisational failure which, however, as noted above, in this case was not directly linked with the development of complications ...”

On 18 September 2015 the investigator decided to terminate the criminal proceedings with reference to, inter alia , the results of the additional forensic medical examination and A.A ’ s additional statement. The investigator ’ s decision stated, among other things, that in the course of the investigation it had been submitted by the Ministry of Health that there were no legal acts regulating the activity of medical staff, in particular that of a surgeon and traumatologist . Furthermore, according to information provided by Shirak Regional Administration Body, the metal implants used during the applicant ’ s surgery had not been obtained by Artik Medical Centre. In 2008 there were no legal provisions specifying whether obtaining metal implants was the responsibility of the patient or that of the medical establishment.

The applicant appealed to the Prosecutor against the investigator ’ s decision. The appeal was rejected on 15 October 2015.

The applicant lodged a court complaint against the investigator ’ s decision of 18 September 2015 as upheld by the Prosecutor on 15 October 2015.

On 24 December 2015 the Regional Court upheld the investigating authority ’ s decision to terminate the criminal proceedings.

The applicant lodged an appeal, which was dismissed by the Criminal Court of Appeal on 16 February 2016.

The applicant ’ s subsequent appeal on points of law was declared inadmissible for lack of merit by a decision of the Court of Cassation of 4 May 2016. The applicant ’ s representative in the domestic proceedings received this decision on 14 July 2016.

B. Relevant domestic law

1. Criminal Code

Article 130 § 2 provides that failure to perform or improper performance of professional duties by medical and support personnel as a result of negligence or bad faith, which has negligently caused the death of the patient undergoing treatment, shall be punishable by imprisonment from two to six years, with or without deprivation of the right to hold certain positions or practise certain activities for a maximum of three years.

2. Civil Code

According to Article 17 § 1 the person whose rights have been violated may claim full compensation for the damage suffered, unless the law or contract envisages a lower amount of compensation.

According to Article 17 § 2, damages are expenses borne or to be borne by the person whose rights have been violated, in connection with restoring the violated rights, loss of his property or damage to it (material damage), including lost income, as well as non-pecuniary damage.

Article 162.1 § 2 provides that a person has the right to claim compensation for non-pecuniary damage if it has been established by the prosecuting authority or a court that, as a result of a decision, action or omission of a State or local governance body or its official, that person ’ s right to, inter alia , respect for private life has been violated.

Article 1058 § 1 provides that damage caused to a person or his property, as well as damage caused to the property of a legal entity, is subject to compensation in full by the person who has caused such damage. A person not responsible for causing damage may bear an obligation stated by the law to compensate it.

According to Article 1058 § 2, the person who has caused damage is exempted from its compensation if it is established that the damage has been caused in the absence of his guilt.

Article 1087.2 §§ 3 and 4 provide that non-pecuniary damage suffered as a result of violation of fundamental rights is subject to compensation irrespective of the fault on the part of the official in causing the damage. Non-pecuniary damage is compensated from the State budget. If the fundamental right included in Article 162.1 has been violated by the local governance body or its official, non-pecuniary damage is compensated from the relevant local budget.

The amount of compensation for non-pecuniary damage suffered as a result of the violation of a person ’ s right to respect for his private life cannot exceed two thousand times the minimum salary (Article 1087.2 § 7 (2)). The amount of compensation for non-pecuniary damage can, in exceptional cases, exceed the limits set in paragraph 7 if the damage has caused grave consequences (Article 1087.2 § 8).

According to Article 1087.2 § 9, a claim seeking compensation for non ‑ pecuniary damage can be submitted to a court together with a claim seeking to establish a breach of the rights set out in Article 162.1 within a period of one year from the moment when the person became aware of the breach, as well as within a period of six months from the date on which a judicial act establishing the breach of the right in question came into force. If the breach has been established by a law enforcement body, a claim seeking compensation for non-pecuniary damage can be submitted not earlier than two months but not later than one year from the date on which the person concerned became aware of the matter.

COMPLAINTS

The applicant complains under Article 8 of the Convention that she was not provided with adequate medical assistance in Artik Medical Centre after she had fractured a bone in her left leg in a fall. As a result, her health was seriously damaged and she became disabled.

In particular, she was operated on by a doctor who did not have the required qualification to perform this type of surgery and who, moreover, used metal implants whose origin was unknown and this was not explained to her prior to the operation. Furthermore, she was not informed of the possible complications of the surgery, which would have enabled her to give informed consent. Neither the administrative nor the criminal proceedings were capable of securing legal means to hold accountable those at fault and enable her to obtain adequate redress.

QUESTIONS TO THE PARTIES

1. Did the State comply with its positive obligations under Article 8 of the Convention in respect of the right to physical integrity in the instant case (see, Trocellier v. France ( dec. ), no. 75725/01, § 4, ECHR 2006 ‑ XIV)?

In particular, having regard to the State ’ s obligation to establish relevant regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of the physical integrity of their patients, can it be considered in the circumstances of the present case that the applicant ’ s right to physical integrity was respected?

2. Did the domestic law provide the applicant with an effective remedy permitting the establishment of the possible liability of the practitioner concerned and that of the State for the damage caused to her health and, if necessary, for obtaining adequate civil redress?

The parties are requested to clarify in this respect whether, at the relevant time, civil remedies were available to the applicant in the domestic legal system which, independently from the outcome of the criminal and disciplinary proceedings, could afford her adequate civil redress, including for non ‑ pecuniary damage suffered as a result of the alleged medical malpractice.