Communicated on 6 October 2015

THIRD SECTION

Application no. 12105/13 Grigor STEPANYAN against Armenia lodged on 18 January 2013

STATEMENT OF FACTS

The applicant, Mr Grigor Stepanyan, is an Armenian national who was born in Yerevan 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.

On 6 July 2010 at around 9 p.m. the applicant ’ s daughter, Magdalena Stepanyan, born on 1 July 2009, was taken to Abovyan Medical Centre (the Hospital) because she had a high fever, had been vomiting and refused to eat.

On the same day Magdalena Stepanyan was examined by H.A., a resident physician in the department of infectious diseases of the Hospital, who diagnosed acute intestinal infection, gastroenteritis and toxicosis with exicosis. The child was placed in the intensive therapy room to receive treatment corresponding to this diagnosis.

On 7 July 2010 at 6.55 a.m. Magdalena Stepanyan ’ s condition sharply deteriorated. She turned pale, her respiration was superficial, her heartbeat became inaudible and no pulse could be felt. The child was transferred to the operating room and A.M., the intensive care specialist on duty, was called. At that point the child was in a terminal condition.

On the same day at 7.45 a.m. Magdalena Stepanyan ’ s death was registered.

On the same day at 3 p.m. Magdalena Stepanyan ’ s grandfather reported to the police that his granddaughter had died in the Hospital as a result of negligence on the part of H.A.

On the same day criminal proceedings were instituted under Article 130 § 2 of the Criminal Code on account of Magdalena Stepanyan ’ s death.

On 8 July 2010 the investigator assigned a forensic medical examination to determine, inter alia , the cause of Magdalena Stepanyan ’ s death, the diseases she had suffered from during her life, the type of treatment she had received in the Hospital, whether her condition had been correctly diagnosed and whether any errors or omissions had been committed during her medical treatment at the Hospital and, if so, which member of the medical personnel was responsible for them.

On 9 August 2010 the forensic medical expert ’ s opinion was produced, which stated that the cause of Magdalena Stepanyan ’ s death had been cardiopulmonary arrest as a result of myocarditis, cardiomyocyte contractile dysfunction, oedema, interstitial lung disease and bronchial desquamation from which the deceased had suffered during her life and which was directly linked to her death. It was further stated in the expert ’ s opinion that the rest of the questions could be answered via panel expert examination.

On 4 November 2010 the opinion of the panel of medical experts was received, the relevant parts of which read as follows:

“... after admission to the department of infectious diseases, patient [Magdalena] Stepanyan ’ s medical examinations were insufficient and deficient. In particular, blood, urine and stool tests were not performed and no chest x-ray was taken. Having diagnosed toxic shock syndrome and also taking into account the child ’ s severe condition on admission to hospital, it was necessary to place her in the intensive care unit with mechanical ventilation to support the vital functions.

The treatment provided was not contraindicated in the determined diagnosis. Taking into consideration the patient ’ s acute condition as a result of her diseases ... it is not possible to state definitively whether it would have been possible to save the child ’ s life even by having placed her in the intensive care unit, however, the panel finds it worth noting that, had the tests been fully done and the treatment organised in the intensive care unit, the probability of saving the child would have been higher.

... doctor [H.A.] should have placed the patient in the intensive care unit ...

There are no significant contradictions between [Magdalena] Stepanyan ’ s medical documents and the records with regard to the cause of death of the forensic medical examination of the body.”

It appears that at some point the applicant requested an additional forensic medical examination to be assigned and submitted questions which he asked to have included in the list of questions to be put to the experts.

On 3 December 2010 the investigator assigned an additional forensic medical examination to be carried out by a panel of experts. It appears that the applicant ’ s questions, reformulated in legal terms by the investigator, were included in the list of questions to be put to the experts.

On 18 February 2011 the additional forensic medical examination was completed. In their opinion the panel of medical experts stated, inter alia , the following:

“According to the medical documents... [Magdalena] Stepanyan ’ s medical examinations were not fully performed ...the diagnosis was incomplete; [Magdalena] Stepanyan ’ s cardiopulmonary pathology was not diagnosed.

As for the treatment provided, it corresponded to the diagnosis made which was not contraindicated, however, given that [Magdalena] Stepanyan had not been fully examined and her cardiopulmonary pathology had not been diagnosed, the doctor in charge did not provide treatment in that respect. In order to find out [Magdalena] Stepanyan ’ s genuine condition and determine the type of necessary treatment, blood and urine ... tests, electrocardiogram and chest x-ray should have been performed...

In such a situation it was appropriate to place [Magdalena] Stepanyan in the intensive care unit, which was not done in this case...

In case of treatment in the intensive care unit the chances of a positive outcome could possibly have been higher.

... there is a high mortality rate among children suffering from such diseases. That is, in such cases even in the event of correct diagnosis and treatment, it is not possible to rule out the chance of a negative outcome.

...it cannot be conclusively stated that there is a direct causal link between the deficiencies and omissions during [Magdalena] Stepanyan ’ s treatment and her death.

There are inconsistencies between [Magdalena] Stepanyan ’ s medical documents and the records contained in the opinion of the forensic medical expert. In particular, cardiopulmonary pathology discovered as a result of the forensic medical examination of [Magdalena] Stepanyan ’ s body had not been discovered while she was still alive.”

On 4 March 2011 the investigator decided to terminate the criminal proceedings. The decision stated that the members of the medical personnel of the hospital, including doctors H.A. and A.M., had failed to provide requisite medical treatment to Magdalena Stepanyan. In particular, they had not diagnosed Magdalena Stepanyan ’ s cardiopulmonary pathology and did not carry out blood and urine tests, an electrocardiogram and a chest x ‑ ray to check her state of health. It was further stated that it would have been more appropriate to place Magdalena Stepanyan in the intensive care unit, which could possibly have raised the chances of a positive outcome. However, that was not done. Nevertheless, the investigator found that there was no causal link between the mentioned shortcomings and omissions in Magdalena Stepanyan ’ s treatment and her death, since the mortality rate is high with the diseases from which she suffered, especially at that age and with the health problems she had, and also in view of her late hospitalisation. Moreover, even with requisite and timely medical treatment a negative outcome could not possibly be ruled out in such cases. Therefore, despite the above-mentioned shortcomings and omissions, the prosecution in respect of the members of the medical personnel who had been involved in Magdalena Stepanyan ’ s treatment at the Hospital was to be stopped and the criminal proceedings terminated.

On an unspecified date the applicant lodged a complaint against the investigator ’ s decision. He claimed, inter alia , that the investigation into his daughter ’ s death had been ineffective in that the investigator had either modified the questions submitted by him or in general had failed to include them in the list of questions to the panel of experts when assigning an additional forensic medical examination. He further complained that in the circumstances where the treating doctor had not diagnosed the life ‑ threatening disease, and had provided treatment in respect of an illness not linked to the death, such treatment could not be considered adequate. The applicant submitted that instead of considering the chances of saving his daughter ’ s life, which was not an obligation for any member of the medical personnel, the investigator should have examined whether or not the members of the medical staff of the hospital had failed to perform their professional duties properly. He also submitted that the exact cause of his daughter ’ s death was not established during the investigation. He finally submitted that, because of the ineffectiveness of the investigation, he was deprived of the possibility to claim compensation for the damage suffered as a result of the doctors ’ actions.

On 15 June 2011 the Kotayk Regional Court (the Regional Court) quashed the investigator ’ s decision to terminate the criminal proceedings. In doing so, it found that the investigator had failed to consider properly the results of the forensic medical examinations to be able to reach correct conclusions. The Regional Court stated that Article 130 of the Criminal Code envisaged responsibility for failure by medical personnel to perform their professional duties properly and did not envisage responsibility or exonerate from it for having secured a high or low probability of saving a patient ’ s life during treatment. It found that the results of the forensic medical examinations substantiated that Magdalena Stepanyan ’ s diagnosis and treatment at the Hospital had not been adequate. In particular, doctor H.A. had failed to place Magdalena Stepanyan in the intensive care unit and had wrongly diagnosed her illnesses, as a result of which the doctor had not provided any treatment in respect of the illnesses that she had failed to diagnose.

It appears that the Regional Court ’ s decision was not appealed against and the criminal proceedings were reopened.

It further appears that H.A. requested the assignment of an additional panel medical examination, which request was granted by the investigator.

It appears from the opinion of the panel of experts that the addition panel medical examination was completed on 21 December 2011. In their opinion the panel of experts stated, inter alia , that Magdalena Stepanyan ’ s medical examinations were insufficient, the diagnosis was incomplete and the medical staff of the Hospital failed to place her in the intensive care unit, which could have increased the probability of a positive outcome. Moreover, they stated that there were inconsistencies between Magdalena Stepanyan ’ s medical records and the information recorded in the opinion of the forensic medical expert who had conducted the examination of her body. In particular, the cardiopulmonary pathology discovered as a result of the forensic medical examination of Magdalena Stepanyan ’ s corpse had not been diagnosed during her lifetime. The experts, at the same time, concluded that the medical staff of the Hospital had not committed any significant medical errors and there was no causal link between them and Magdalena Stepanyan ’ s death. The experts ’ opinion stated that the measures undertaken by doctors H.A. and M.A. during the patient ’ s resuscitation had been adequate and complete and that her placement in the intensive therapy room was not contraindicated. It was further stated that Magdalena Stepanyan ’ s diseases had not been diagnosed fully by the doctor. In particular, the interstitial lung disease and myocarditis were not diagnosed.

On 26 December 2011 the investigator decided to terminate the criminal proceedings on the ground that there was no causal link between the deficiencies and omissions in the treatment provided to Magdalena Stepanyan and her death.

On an unspecified date, the applicant lodged a complaint with the Regional Court against the investigator ’ s decision. He argued that the investigating authority had failed to consider properly the Regional Court ’ s findings reflected in the decision of 15 June 2011. In particular, the investigator had found it sufficient to assign an additional forensic examination which, in essence, had repeated the conclusions of the previous expert opinions. However, the new additional expert examination had not revealed any new circumstances concerning his daughter ’ s death, given that the exact cause of her death still remained unknown and the inconsistencies in medical records relating to the diseases which had caused her death had not been clarified. The applicant finally argued that there had not been an effective investigation into his daughter ’ s death, in violation of the guarantees of Article 2 of the Convention and that, as the victim ’ s legal heir, he was deprived of the possibility to receive any compensation for the damage caused as a result of medical negligence.

During the proceedings before the Regional Court the applicant submitted, inter alia , that doctor H.A. had made a wrong diagnosis, as a result of which the child ’ s cardiopulmonary pathology had not been diagnosed. Instead, only the intestinal infection was diagnosed and corresponding treatment provided. He also submitted that the child ’ s treatment should have been organised in the intensive therapy unit, which was not the case. In addition, he complained that the investigator had not submitted sufficient questions to the experts, as a result of which it had not been possible to obtain comprehensive answers.

On 14 March 2012 the Regional Court rejected the applicant ’ s complaint and fully upheld the investigator ’ s decision. The Regional Court stated in its decision that the applicant had failed to submit to the investigator any questions which in his opinion would help to establish the truth, and that in such circumstances the investigator had submitted to the experts those questions which he found to be appropriate. The Regional Court concluded that there were not sufficient grounds to hold H.A. criminally responsible. In doing so, it relied on the conclusion of the panel of experts of 21 December 2011 according to which there was no direct causal link between Magdalena Stepanyan ’ s death and the deficiencies and omissions which had occurred during her medical treatment at the Hospital.

On an unspecified date the applicant lodged an appeal against the Regional Court ’ s decision. He reiterated his arguments submitted to the Regional Court as regards the inadequacy of the investigation into his daughter ’ s death and his inability to receive any compensation for medical negligence. The applicant also complained that the Regional Court had failed to assess properly the conclusion of the panel of experts having conducted the additional forensic medical examination. He argued that the doctor had committed negligence by failing to carry out the necessary medical examinations and make a correct diagnosis, which had resulted in the child ’ s death. The applicant claimed that this fact alone was enough to establish that medical negligence had been committed and that there was a causal link since, in the absence of a correct diagnosis, it is impossible to provide proper treatment.

On 16 May 2012 the Criminal Court of Appeal rejected the applicant ’ s complaint and fully upheld the Regional Court ’ s decision. In doing so, the Court of Appeal mainly restated the investigator ’ s decision to terminate the criminal proceedings and the Regional Court ’ s decision which upheld it, finding these to have been lawful and well-founded.

The applicant lodged an appeal on points of law reiterating the same arguments as before. In particular, he continued to argue that the exact cause of the child ’ s death was never established and that the inconsistencies in the medical records relating to the diseases which had caused the death were never clarified.

On 14 July 2012 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 Civil Code (in force since 1 January 1999)

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 the 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.

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.

COMPLAINTS

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

The applicant further complains under Articles 2 and 13 of the Convention that, in the absence of establishment of criminal liability of the medical personnel, he had no possibility to claim any compensation for civil damages suffered as a result of medical negligence. In particular, he complains that the domestic legal system does not provide a mechanism for the establishment of civil liability and compensation in cases of medical negligence.

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?

The Government are requested to clarify whether there is any evidence that Magdalena Stepanyan suffered from any diseases before her hospitalisation on 6 July 2010 and to provide copies of relevant documents.

The Government are further requested to clarify whether, apart from the criminal proceedings, there were any civil remedies available to the applicant in the domestic legal system and, if possible, to provide copies of relevant court decisions.

2. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 2 of the Convention, as required by Article 13 of the Convention? In particular, was the fact that no compensation for non ‑ pecuniary damage was available to the applicant compatible with the requirements of that Article?