Communicated on 1 September 2015

THIRD SECTION

Application no. 623/13 Shushanik VOSKANYAN against Armenia lodged on 20 December 2012

STATEMENT OF FACTS

The applicant, Ms Shushanik Voskanyan , is an Armenian national who was born in 1982 and lives in Vanadzor . She is represented before the Court by Mr K. Tumanyan , a lawyer practising in Vanadzor .

A. The circumstances of the case

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

On 7 October 2010 the applicant ’ s husband, Slavik Voskanyan, was arrested on suspicion of murder and armed assault.

On 10 October 2010 the Lori Regional Court ordered the applicant ’ s pre ‑ trial detention and he was transferred to Vanadzor Detention Facility.

On 18 October 2010 Slavik Voskanyan requested medical assistance. It appears that he complained of pain in the left shin. From this date until 24 October 2010 Doctor M. of the detention facility medical unit provided medical care to Slavik Voskanyan and constantly reported to the administration on his state of health.

On 19 October 2010 Doctor M. recorded in Slavik Voskanyan ’ s medical file that crepitation was observed upon palpation and brown pus with an unpleasant smell was discovered as a result of an incision made during the examination.

On 21 October 2010 Doctor N. of the detention facility medical unit reported to the chief of the detention facility the following:

‘ ... during the orderly check I examined ... Slavik Voskanyan in order to give the injections indicated by the doctor and put a bandage on the left shin. After having opened [Slavik Voskanyan ’ s] bandage I noticed that there was abundant blood and pus discharge from the wound, which was cleaned by me and a sterile bandage was put on but my actions are not sufficient. I also note that [Slavik Voskanyan] complained of acute pain which prompts me to believe that the infected area may possibly spread. In order to avoid further complications, I ask for your order in relation to the above-stated. ’

On 24 October 2010 it was decided to transfer Slavik Voskanyan to the Hospital for Prisoners to undergo surgery. However, he died on the same day.

On the same day a forensic medical examination was assigned.

According to the medical death certificate delivered on 25 October 2010, the cause of Slavik Voskanyan ’ s death had been general intoxication of the body.

It appears that on 13 December 2010 the conclusion of the medical expert was received which stated, inter alia , that Slavik Voskanyan ’ s death had been caused by general intoxication of the body because of necrosis of the dermis, hypodermis and underlying tissues of the left lower extremity surface area as a result of an infected wound on the left shin with tissue erosion from the foot to the upper thigh. The medical examination of Slavik Voskanyan ’ s body showed an infected wound in the area of the left shin inflicted while he was alive, possibly by injection of an external substance, including saliva, with a syringe (by himself or by other persons) which contained the elements of grave damage to health and was in direct causal link with the death. The chemical examination of blood and urine samples taken from Slavik Voskanyan ’ s body showed the presence of 0,3 per mille ethyl alcohol in the blood, which was not found in the urine. The mentioned amount of ethyl alcohol is considered light alcohol intoxication, and at the moment of death it had been in the process of absorption in the body.

On 30 December 2010 criminal proceedings were instituted against Doctor M. for medical negligence which resulted in Slavik Voskanyan ’ s death.

On 15 January 2011 a panel forensic medical examination was assigned. The answers to the relevant questions were produced by the panel of experts in their opinion of 31 March 2011 and read as follows:

Question 1 : Was Slavik Voskanyan ’ s illness diagnosed correctly?

Answer: From 18 October 2010 until 24 October 2010 Slavik Voskanyan ’ s diagnosis was mainly incorrect; only an infected wound on the left shin was diagnosed in the event where, already on 19 October 2010, it had been noted in the patient ’ s medical file that upon palpation crepitation could be observed, which attested to the existence of a more serious pathology, gas gangrene. However, the patient was correctly diagnosed with gangrene of the left shin and intoxication only by the record drafted on 24 October 2010 at 10.15 a.m. and a consultation with a vascular surgeon and urgent in-patient treatment were ordered, but the patient died after that at 2.45 p.m.

Questions 2 and 3: Were there any objective reasons/obstacles which hindered the correct diagnosis and treatment of the patient? Did Slavik Voskanyan need in-patient care with his diagnosis?

Answer: When the record ‘ crepitation is observed upon palpation ’ was made in the medical file on 19 October 2010, and having discovered ‘ brown pus with an unpleasant smell ’ when an incision was made, the doctor was obliged to transfer the patient to hospital for further treatment.

Questions 4 and 5: Did the patient ’ s treatment correspond to his diagnosis, and was it contra-indicated? Were there any deficiencies or omissions during Slavik Voskanyan ’ s treatment and, if so, when did they occur? What was their nature and specifically which medical practitioner was responsible for them?

Answer: The treatment provided to the patient in the detention facility was not contra-indicated but it had been ineffective, since on 19 October 2010, as result of the patient ’ s examination it was noted in the medical file that crepitation could be observed upon palpation, which attested to the existence of a more serious pathology, gas gangrene. Also, upon making an incision and discovering ‘ brown pus with an unpleasant smell ’ the doctor should have added anti-anaerobic medication to the list of treatment.

Questions 6, 7, 8 and 9: If medical practitioners were responsible for any failures or omissions when providing medical assistance, was there any causal link between those and Slavik Voskanyan ’ s death and specifically in what way? What were the negative consequences of the incorrect treatment? Could correct medical treatment possibly have secured a positive outcome in this case? In case of a correct diagnosis, did the doctor have a possibility to take necessary measures to save the patient ’ s life and, if so, what type of measures would those have been?

Answer: If, as indicated in points one to five of the present conclusions, starting from 19 October 2010 Slavik Voskanyan had received treatment targeted at the anaerobic infection in line with his assessed state, had been transferred to hospital speedily and had received relevant/conservative and surgical treatment, it would have been possible to prevent the negative outcome of the illness.

The opinion of the panel of experts also stated that the chemical examination of blood and urine samples taken from Slavik Voskanyan ’ s body had not shown any presence of alcohol in them.

On 12 April 2011 Slavik Voskanyan was recognised as a victim in the proceedings.

On 18 April 2011 the applicant was recognised as Slavik Voskanyan ’ s legal heir in the proceedings.

On 13 June 2011 an online newspaper published an interview with Doctor M. who stated that he had brought the serious state of Slavik Voskanyan ’ s health to the attention of the administration of the detention facility and of the Medical Service Department of the Penitentiary Service of the Ministry of Justice. However, no authorisation had been received with regard to Slavik Voskanyan ’ s transfer to hospital.

On 15 June 2011 the applicant submitted a written request to the investigating authority asking the investigator to examine the article published in the online newspaper and draw his proper conclusions with regard to the responsibility of the authorities mentioned therein in not providing requisite medical treatment to her husband and not transferring him to the Hospital for Prisoners or a civilian hospital.

On 27 June 2011 an additional panel medical examination was assigned on the ground that there were apparent discrepancies between the first expert opinion and the opinion of the panel experts delivered on 31 March 2011 with regard to the presence of ethyl alcohol revealed by the chemical analysis of the blood and urine samples taken from the deceased ’ s body.

On an unspecified date, the panel of experts delivered their opinion which stated, inter alia , that it could not be definitely stated whether it would have been possible to save Slavik Voskanyan ’ s life had he received full, targeted out-patient or in-patient treatment. The opinion further stated that it was not possible to determine conclusively the exact day when the gas gangrene had started. However, given that on 19 October 2010 crepitation was recorded, it could be assumed that this date corresponded to the beginning of the illness. In order to prevent the illness and improve the healing process it would have been necessary to transfer the patient to hospital since treatment for the given illness, which could have made it possible to prevent the negative outcome, is mainly of a surgical nature. However, it should be noted that in the case of such grave illnesses as anaerobic infection/gas gangrene, sometimes even in-patient treatment can prove to be ineffective, especially when the patient regularly pulled the bandage, which worsened the infection.

On 30 August 2011 the investigator decided to terminate the criminal proceedings and stop Doctor M. ’ s prosecution for absence of corpus delicti . The decision stated, inter alia , that with the purpose of being transferred to the Hospital for Prisoners Slavik Voskanyan had injected saliva under the skin in the area of the left shin, which had caused a wound, and had asked for medical assistance for the first time on 18 October 2010. From that day on until 24 October 2010 Doctor M. had treated him, but Slavik Voskanyan often pulled the bandage, thus worsening the infection and aggravating the general situation. The decision also stated that Doctor M. had periodically reported on the situation to the administration of the detention facility and to the Medical Service Department of the Penitentiary Service of the Ministry of Justice. It was further stated in the decision that the wound had been caused by self-harm and, by reference to the results of the medical examinations and, in particular, the additional panel medical examination, it was concluded that there was no sufficient evidence substantiating that Slavik Voskanyan had died because of Doctor M. ’ s failure to carry out his professional duties properly.

The applicant lodged a complaint against the investigator ’ s decision with the Prosecutor General. She complained, in particular, that in the absence of any proof thereof, the investigating authority had found it established that Slavik Voskanyan had injected himself saliva with a syringe with the purpose of being transferred to the Hospital for Prisoners. However, no attempt had been made to find out the circumstances in which a prohibited item such as a syringe could have been found in Slavik Voskanyan ’ s possession in the detention facility. Moreover, the investigating body had not taken any measures to find out the reasons for not having transferred Slavik Voskanyan to hospital immediately after the sharp deterioration in his health. The applicant also complained that, despite her specific request in this regard, the investigating authority had failed to examine the information contained in the electronic newspaper article published on 13 June 2011 with a view to drawing conclusions concerning the responsibility of public officials mentioned in the article for not having transferred Slavik Voskanyan to hospital in good time, which had resulted in his death.

On 28 November 2011 the Prosecutor rejected the applicant ’ s complaint and upheld the investigator ’ s decision.

The applicant lodged a complaint against the investigator ’ s decision of 30 August 2011 with the Kentron and Nork-Marash District Court of Yerevan (the District Court) raising similar arguments to before to claim that Slavik Voskanyan had died due to the authorities ’ failure to transfer him immediately to hospital and provide him with in-patient medical care and that the investigation into the circumstances of his death had been ineffective. The applicant also complained that the Prosecutor ’ s decision of 28 November 2011 was devoid of any reasoning.

On 15 March 2012 the District Court rejected the applicant ’ s complaint and fully upheld the investigator ’ s decision of 30 August 2011. In doing so, the District Court stated that it considered the applicant ’ s arguments to be a subjective interpretation of the events and investigative measures taken.

The applicant lodged an appeal reiterating the arguments she had raised before the District Court. She further complained that the District Court had neither addressed her arguments concerning the breach of Slavik Voskanyan ’ s right to life nor provided any reasons for rejecting them.

On 7 May 2012 the Criminal Court of Appeal rejected the applicant ’ s appeal, stating that it agreed with the District Court that the investigating authority had not breached any rights.

The applicant lodged an appeal on points of law raising similar arguments to her previous appeal. She also complained that the decision of the Court of Appeal was not reasoned.

On 22 June 2012 the Court of Cassation declared the applicant ’ s appeal on points of law inadmissible for lack of merit.

B. Relevant domestic law

The L aw on Conditions for Holding Arrested and Detained Persons ( « Ձերբակալված և կալանավորված անձանց պահելու մասին » ՀՀ օրենք )

According to Article 13, a detainee has the right, inter alia , to healthcare, including receiving sufficient food and urgent medical assistance.

Article 21 provides that the administration of a detention facility shall ensure the sanitary, hygienic and anti-epidemic conditions necessary for the preservation of health of detained persons. At least one general practitioner shall work at the detention facility. A detainee in need of specialised medical assistance must be transferred to a specialised or a civilian medical institution.

COMPLAINTS

The applicant complains under Article 2 of the Convention that her husband died as a result of the failure on the part of the authorities to transfer him to a hospital in a timely manner .

She further complains under the same Article that the competent authorities failed to conduct an effective investigation into the circumstances of her husband ’ s death.

QUESTIONS TO THE PARTIES

1. W as the applicant ’ s husband ’ s right to life, ensured by Article 2 of the Convention, violated in the present case?

2. 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 provide details, supported by relevant documentary evidence such as extracts from medical files, concerning the applicant ’ s husband ’ s complaints and the medical treatment provided to him in relation to them.

The Government are also requested to provide a copy of the forensic medical expert ’ s conclusion no. 1016 received by the investigating authority on 13 December 2010, as well as a copy of the conclusion of the additional panel medical examination assigned on 27 June 2011.