Communicated on 11 May 2016

FIRST SECTION

Application no. 53081/14 Harutyun KARAPETYAN against Armenia lodged on 15 July 2014

STATEMENT OF FACTS

The applicant, Mr Harutyun Karapetyan , is an Armenian national, who was born in 1957 and lives in Abovyan .

A. The circumstances of the case

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

In March 2011 the applicant and his wife, Tereza Simonyan , aged 53, visited the Mother and Child Health Protection Centre in Yerevan (the hospital) because she was experiencing uterine problems. Tereza Simonyan was diagnosed with uterine myoma and advised by doctor G.O. to undergo surgery without delay. According to the applicant, doctor G.O. did not warn them about any complications that could result from the surgery. They agreed to surgery, after which G.O. requested Tereza Simonyan ’ s medical card from her local clinic.

On 22 March 2011 Tereza Simonyan had an operation in the hospital.

On 23 March 2011 at around 8 a.m. she called the applicant at home, complaining of acute pain. The applicant immediately went to the hospital. Once there, he spent about two hours trying to find out about his wife ’ s condition. At around midday he was invited to the office of the director of the hospital who informed him that his wife had died.

On the same date at 3 p.m. the police were informed of the death. The Investigative Department of Yerevan Police started an inquiry.

It appears that on 24 March 2011 an autopsy was performed. According to the death certificate delivered on the same day by the expert who conducted the autopsy, Tereza Simonyan had died as a result of varicose veins of the legs and thrombosis in the shank vessels brought about by pulmonary thromboembolism.

On an unspecified date, the forensic medical expert delivered an opinion (no. 317) according to which, inter alia , the cause of Tereza Simonyan ’ s death had been pulmonary thromboembolism which had resulted from varicose veins of the legs and venous phlebothrombosis from which the deceased had suffered during life. The opinion also stated that no errors had taken place during Tereza Simonyan ’ s examination and treatment.

At some point an additional forensic examination was assigned to be carried out by a commission of experts, based on the examination of the medical documents it had been provided with, in particular, Tereza Simonyan ’ s medical card, her medical record drafted at the hospital and the initial forensic medical conclusion.

On an unspecified date, the commission of experts presided by doctor G.B. delivered its opinion. The relevant parts of the conclusion read as follows:

“Question: When did T. Simonyan ’ s death occur and what was its cause? Did she have internal bleeding?

Answer: According to expert opinion no. 317, T. Simonyan ’ s death was a consequence of pulmonary thromboembolism which resulted from varicose veins of the legs and venous phlebothrombosis from which the deceased suffered during life. No internal bleeding of the patient was discovered. The death occurred 24 hours after surgery, on 23 March 2011 at 12 hours and 18 minutes.

Question: Are there any scientifically proved methods based on which it could have been possible to provide relevant medical assistance to save the patient from the critical condition?

Answer: According to the medical record, in the event of the sudden and unexpected sharp deterioration of the condition all the necessary and contemporary resuscitation and intensive therapy measures were undertaken but it was not possible to bring the patient out of the critical condition.”

On 5 August 2011 the police investigator assigned with the case made a decision to refuse the institution of criminal proceedings on the ground that no elements of a crime had been discovered in the course of the inquiry into the matter.

The applicant appealed against this decision to the Prosecutor General.

On 6 September 2011 the Prosecutor of Yerevan annulled the decision of 5 August 2011 and made a decision to institute criminal proceedings. The relevant parts of the Prosecutor ’ s decision read as follows:

“... it has been revealed that in the course of the inquiry the circumstances of T. Simonyan ’ s death have not been fully and objectively examined ...

In her explanation [S.E.], the anaesthesiologist-reanimatologist of the [hospital] stated that on 21 March 2011, before Tereza Simonyan ’ s surgery, she had examined the latter, during which visible varicosity of the veins of the left lower leg was discovered and since the biochemical blood analysis had not shown any abnormalities with coagulation level, it was decided to give an injection of “ Fraksiparin ” anticoagulant medication and wrap the legs with an elastic bandage.

In contrast to [S.E. ’ s] statement, the head of the department of gynaecology of the [hospital], [S.K.], had not mentioned an injection of an anticoagulant being given to T. Simonyan . [S.K.] had stated, in particular, that during T. Simonyan ’ s joint examination with the anaesthesiologist-reanimatologist on 21 March 2011, varicose veins of the legs had been discovered but given that no contraindications to the surgery were detected, it was decided to wrap the legs with elastic bandages before surgery in order to support the veins.

... the study of the medical documents has revealed that there was conflicting data about whether the anticoagulant medication “ Fraksiparin ” had been prescribed and injected into T. Simonyan prior to surgery.

According to the medical documents, the entry about the use of the medication was made on 22 March 2011 ... notably ... the colour of the ink of the entry is obviously different from other entries.

...

The record of prescriptions does not contain any entries according to which T. Simonyan was prescribed “ Fraksiparin ” medication on 21 and 22 March 2011, however the same record contains a handwritten entry about the use of the medication in question.

...

The above-mentioned facts lead to the conclusion that “ Fraksiparin ” medication was not prescribed and administered to T.Simonyan in the [hospital] and the entries concerning its administration were made later.

In order to clarify whether the entries ... were made later, the members of the medical staff who have been making entries in the medical record should be additionally questioned and a forensic document examination should be assigned.

...

The body of inquiry had put a question to the commission of experts about the necessity and suitability of performing uterus surgery on T. Simonyan in the presence of varicose veins of the legs; however the expert conclusion did not in fact address this question ...

... it follows that the members of the medical staff of the [hospital] have not properly fulfilled their duties and there are grounds to institute criminal proceedings under Article 130 § 2 of the Criminal Code ...”

Following the institution of criminal proceedings, the applicant was granted the status of the victim ’ s legal heir.

In October 2011 an additional forensic medical examination was assigned to be carried out by a commission of experts.

On an unspecified date the commission delivered its opinion according to which, inter alia , varicose disease of the lower legs is not a necessary pre ‑ condition for thrombosis and thromboembolism. The opinion also stated that Tereza Simonyan was diagnosed with fifteen-week myoma and in view of her age and the pain that she was experiencing, the surgery was recommended. It was further stated that, according to her medical file, the deceased had been diagnosed with varicose veins for the first time on 3 August 2010 and that before surgery a contract had been concluded in which the patient was informed of the possible complications, including death.

On 25 June 2012 another additional forensic medical examination was assigned. It appears that prior to that, the applicant had submitted to the investigator a list of questions to be put to the experts.

On 17 July 2012 the applicant lodged a motion seeking the postponement of the forensic medical examination on the ground that he had requested the investigator ’ s recusal from the supervising prosecutor. In his motion the applicant stated that the results of the two previous forensic medical examinations were considered flawed, also in view of the fact that the questions put to the experts ’ commissions had not been clearly drafted and were not aimed at clarifying the real circumstances of his wife ’ s death.

On the same day the investigator refused the applicant ’ s motion on the ground that the applicant ’ s list of questions had been submitted to the commission of experts with the rest of the documents. The applicant claims that he was not provided with this decision and had no opportunity to dispute it. He further claims that despite his motion, and before answering it, the investigator obliged the commission of experts to proceed with the forensic examination.

On an unspecified date the applicant cross-examined V.R., the head of the commission which conducted the third additional forensic medical examination. The relevant parts of the record of the cross ‑ examination read as follows:

“[Applicant]: You claim that Simonyan ’ s thrombus was formed after surgery ... whereas the commissions of the first and second forensic examinations did not mention anything about that.

[V.R. ’ s] reply: Since according to the results of the examination the woman suffered from varicose veins of the legs without symptoms of thrombosis, it can be assumed that the thrombus was formed either during surgery or the early post ‑ operative stage and travelled by embolism, which was the cause of death.”

According to the applicant, he had submitted a number of other motions in the course of the investigation but the majority were rejected. These included a request to cross-examine the members of the medical personnel of his wife ’ s local clinic and of the hospital, in order to clarify whether her treating doctors were aware that their patient was going to have an operation and whether she had been warned that, prior to the surgery, she needed treatment for her varicose veins.

On an unspecified date the commission of experts delivered their opinion, the relevant conclusions being the following:

“... According to the medical record, injections had been given to T. Simonyan which corresponded fully to the nature and scope of the surgery ...

T. Simonyan had suffered from varicose veins for years, whereas the venous phlebothrombosis had occurred after surgery ...

As to the questions included in the motion lodged by the victim ’ s heir ... sharp deterioration of the patient ’ s state of health was mainly due to cardiovascular and pulmonary complications. The assumption about a heart attack was probably due to the above-mentioned.”

On 5 February 2013 Iravunk newspaper published an interview with doctor G.B. who had earlier received an award from the chief editor of the same newspaper for his achievements in the sphere of health care. Doctor G.B. was asked questions on various issues concerning health care. The relevant part of this interview reads as follows:

“To what extent are the doctors responsible when death occurs following uterine myoma surgery, as a result of varicose veins?

... I consider that to be an error ... in any case varicose veins should be treated first and only then the surgery performed ...”

It appears that the applicant submitted this interview to the investigator.

On 1 March 2013 the applicant requested a cross-examination with the doctor who had operated on his wife, the medical practitioner of his wife ’ s local clinic and the director of the hospital.

On 4 March 2013 the investigator decided to reject the applicant ’ s motion on the ground that a number of investigative measures had been undertaken and there was no point in granting it.

On the same date the investigator decided to terminate the criminal proceedings. The investigator ’ s decision mainly relied on the conclusions of forensic examinations, including medical and document examinations. The decision also referred to the fact that the members of the medical personnel who had been involved in Tereza Simonyan ’ s surgery had made similar statements, to the effect that the latter had been provided with adequate treatment at the hospital. It was also stated that the heads of the commissions of the first and third additional forensic medical examinations, namely doctors G.B. and V.R., had been questioned and that the applicant had cross-examined the latter.

On 26 March 2013 the applicant lodged a complaint with the Kentron and Nork- Marash District Court of Yerevan (the District Court) against the decision to terminate the criminal proceedings. The applicant stated in his complaint that he had not had an opportunity to study the case-file after the investigation was completed. Therefore, and in order to respect the time ‑ limits for disputing the decision, he was obliged to submit his complaint on this date with a view to submitting his arguments later, after having familiarised himself with the case file. At the same time he argued that the investigator had not been independent, since he had complied with the orders of the supervising prosecutor, namely to terminate the proceedings.

Before the District Court, the representative of the investigative authority argued that it had been established in the course of the criminal proceedings that no medical errors had been committed and that the surgery in question had not been contraindicated for Tereza Simonyan . The applicant argued, inter alia , that a number of issues had not been clarified during the investigation, in particular the public statement by doctor G.B. had not been addressed. It appears that the applicant requested the District Court to examine G.B., but this request was refused.

On 12 September 2013 the District Court rejected the applicant ’ s complaint, relying on the results of the forensic medical examinations. As for the statement of doctor G.B., the District Court found the applicant ’ s argument ill-founded, stating that G.B. had been the head of the commission which carried out the second additional forensic examination; he had been questioned during the investigation and had confirmed his conclusion that no medical errors had taken place during Tereza Simonyan ’ s treatment.

On 23 September 2013 the applicant lodged an appeal. He argued, inter alia , that the District Court had not attempted to clarify the reason for the expert (G.B.) submitting a conclusion which had later proved to be against his professional view on the matter.

On 11 November 2013 the Criminal Court of Appeal upheld the District Court ’ s decision. In doing so it stated, in particular, that there were no contradictions between the three forensic medical conclusions of the commissions of experts and that they supplemented each other. Although the investigative authority had made a decision to assign additional forensic medical examinations, those were in fact supplementary examinations in order to clarify the issues raised by the applicant during the proceedings.

The applicant lodged an appeal on points of law. He argued, in particular, that the additional forensic medical examinations had been assigned only as a result of his persistence in trying to oblige the experts to provide clear answers to questions that had been avoided in the previous examinations. He reiterated his arguments with regard to the failure to address G.B. ’ s statement during his interview and other arguments raised before.

On 16 January 2014 the Court of Cassation declared the applicant ’ s appeal on points of law inadmissible for lack of merit.

B. Relevant domestic law

1. The Criminal Code (in force since 1 August 2003)

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. The Code of Criminal Procedure (in force since 12 January 1999)

According to Article 27 of the Code, the body of inquest, the investigator or the prosecutor are obliged, within the scope of their jurisdiction, to institute criminal proceedings in each case when elements of a crime are disclosed, and to undertake all the measures prescribed by law in order to disclose crimes and their perpetrators.

Article 180 § 1 provides that reports on crimes must be examined and decided upon without delay, and within a period of ten days if it is necessary to check whether there are lawful and sufficient grounds to institute proceedings. Within this period, additional documents, explanations and other materials may be requested, the scene of the incident inspected and forensic examination ordered (Article 180 § 2).

Article 185 § 1 of the Code provides that in the absence of lawful grounds for institution of criminal proceedings, the prosecutor, the investigator or the body of inquiry shall adopt a decision to reject the institution of criminal proceedings.

COMPLAINTS

The applicant complains under Article 2 of the Convention that the domestic authorities failed to conduct an effective investigation into his wife ’ s death.

QUESTIONS TO THE PARTIES

1. Having regard to the procedural protection of the right to life, was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?

2. Did the State comply with its duty to protect life by setting up an effective judicial system, capable of holding accountable those responsible for the death of patients in the care of the medical profession (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, ECHR 2002 ‑ I; Å ilih v. Slovenia [GC], no. 71463/01, 9 April 2009; Dodov v. Bulgaria , no. 59548/00, 17 January 2008; Byrzykowski v. Poland , no. 11562/05, 27 June 2006 )? In particular, the Government are requested to clarify whether, apart from the criminal proceedings, there were any other remedies such as, for example, civil or disciplinary remedies, available to the applicant in the domestic legal system and, if so, what type of redress they could afford him. The Government are also requested to provide examples of relevant domestic practice, including domestic case-law.

The Government are further requested to submit copies of the following documents: forensic expert opinion no. 317, the decisions to assign a forensic medical examination and additional forensic medical examinations, the decision of 5 August 2011 to refuse the institution of criminal proceedings, the decisions to assign forensic document examinations and the opinions of forensic document experts, the records of the questioning of the medical staff and the records of any other investigative measures carried out during the investigation.