Communicated on 17 June 2015

THIRD SECTION

Application no. 69736/12 Derenik MKRTCHYAN and Gayane MKRTCHYAN against Armenia lodged on 15 October 2012

STATEMENT OF FACTS

The applicants, Mr Derenik Mkrtchyan and Ms Gayane Mkrtchyan, are Armenian nationals who were born in 1948 and 1976 respectively and live in Alapars Village. They are represented before the Court by Mr A. Zalyan, a lawyer practising in Vanadzor.

A. The circumstances of the case

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

The applicants are the grandfather and the mother of Derenik Gasparyan, deceased.

Derenik Gasparyan was a fourth grade pupil at Charentsavan School No. 5. According to the applicants he was in good health.

At 9.30 a.m. on 5 June 2010 the second applicant took Derenik Gasparyan to school, where a mathematics examination was scheduled to take place.

The form teacher seated the pupils in the classroom and wrote down the assignments on the blackboard. She then left the classroom to have a conversation with another teacher, who was the mother of one of the pupils.

While the form teacher was away the pupils had a fight, as a result of which Derenik Gasparyan was beaten up by two of his classmates. During the fighting Derenik Gasparyan and other pupils screamed loudly.

According to the body of inquiry after the fight, Derenik Gasparyan had approached the blackboard better to see what was written there. Upon returning to his place he had suddenly fallen to the floor and lost consciousness. The form teacher had been standing behind the door at that moment. According to her statement she had been outside for only five minutes. The applicants do not agree that this was the case.

Having heard the noise, the janitress entered the classroom. Thereafter the form teacher and other teachers slapped Derenik Gasparyan ’ s face, performed artificial respiration, sprinkled water on his face and tried to draw out his tongue. Since Derenik Gasparyan did not regain consciousness, he was taken to the hospital.

Derenik Gasparyan was already dead when he was admitted to the hospital.

On the same day the police ordered a forensic medical examination. The expert was requested to determine the cause of Derenik Gasparyan ’ s death, the existence of any injuries on his body, their location, type, the time and method of their infliction and their gravity. The expert was also asked to determine whether Derenik Gasparyan suffered from any illness while alive and, if he did, in what way he was affected by such illness, and its possible link to the death.

On 6 July 2010 the forensic medical examination was completed. The expert mentioned in his opinion that since early childhood Derenik Gasparyan had suffered from a number of diseases, including acute respiratory infection, intestinal infection, stomatitis, balanoposthitis, aggravated tonsillitis, follicular angina and several other conditions. It was further mentioned that in June 2009 Derenik Gasparyan had been examined by a paediatrician. The parents had informed him that the child had lost consciousness for no reason two weeks before, during a sports class. They had also said that, two years earlier, he had fallen and hit his head at school, as a result of which he had lost consciousness. He was diagnosed with syncope (fainting) and they were recommended to keep him under active supervision. The expert concluded that the cause of Derenik Gasparyan ’ s death was acute respiratory failure and acute oxygen deprivation which were the consequence of a number of changes in internal organs discovered as a result of the forensic examination and confirmed by the forensic analysis of the tissues. It was stated that he had suffered from severe muscular dystrophy and fatty degeneration of the heart which were linked to the cause of the death. The expert further stated that Derenik Gasparyan had been diagnosed with syncope (fainting) which could have been a factor contributing to his death. A haemorrhage in the area of the left temple and cheek was also discovered. It was concluded that this had been caused by a blunt, hard object while he was still alive and was not directly lin ked to the cause of the death.

On 15 July 2010 the first applicant enquired of the General Prosecutor whether criminal proceedings had been instituted on account of his grandson ’ s death and asked to be provided with a copy of the relevant decision. He also asked to be involved in the proceedings as his grandson ’ s legal heir.

On 21 July 2010 criminal proceedings were instituted under Article 118 of the Criminal Code on account of the beating of Derenik Gasparyan.

On 26 July 2010 the first applicant was involved in the proceedings as the victim ’ s legal heir.

It appears that in September 2010 the first applicant lodged a complaint with the General Prosecutor asking that criminal proceedings be instituted on account of Derenik Gasparyan ’ s death and not merely in relation to his beating prior to his death. He also complained about the fact that the body of inquiry had not instituted criminal proceedings promptly and had not carried out necessary investigative measures such as interrogating the witnesses or examining the scene of the incident.

On 15 September 2010 the first applicant requested that an additional forensic medical examination be conducted on the ground that the expert had not given conclusive answers to the questions asked. It was argued, in particular, that the exact time of the death and of infliction of injuries and their gravity had not been determined and the connection between Derenik Gasparyan ’ s diseases and the cause of death had not been clearly established. Finally, it was argued that the first applicant had not been provided with the decision to assign a forensic medical examination and had not had an opportunity to put additional questions to the expert.

At some point during the investigation Derenik Gasparyan ’ s parents questioned two of Derenik Gasparyan ’ s classmates in connection with the events of 5 June 2010 and recorded their answers. The recordings were submitted to the body of inquiry.

On 8 October 2010 the investigator examined the recordings. The two pupils questioned mainly confirmed that they had witnessed their classmates, brothers I.H. and V.H., beating up Derenik Gasparyan.

On 3 November 2010 the investigator sent a letter to the Chief of the State Education Inspection asking him to examine the incident of 5 June 2010 in order to make an assessment of the actions of the school administration and the teaching staff, stating whether any violations had taken place.

By a letter of 15 November 2010 the Chief of the State Education Inspection stated that, as a result of the examination of the incident, it had been concluded that Derenik Gasparyan ’ s death was not attributable to any inaction or omission on the part of the school administration or the teaching staff.

On 18 November 2010 the criminal proceedings were terminated. It was stated that, although I.H. and V.H. could be held criminally liable under Article 118 of the Criminal Code for their actions, they could not be prosecuted since they had not attained the age of criminal liability.

On 27 November 2010 the first applicant lodged a complaint with the General Prosecutor against the investigator ’ s decision to terminate the criminal proceedings.

On 7 December 2010 the first applicant lodged a complaint with the Kotayk Regional Court seeking to annul the decision to terminate the criminal proceedings. He argued, in particular, that Derenik Gasparyan had died as a result of a fight among the children while they were left alone in the classroom without a teacher ’ s supervision. The administration had not taken any measures to prevent the fight. Also, the body of inquiry had not instituted separate criminal proceedings on account of Derenik Gasparyan ’ s death. While it had been established that Derenik Gasparyan had been beaten up, the causal link between the beating and his death had not been properly examined.

On 10 December 2010 the Prosecutor rejected the complaint against the investigator ’ s decision to terminate the criminal proceedings.

On 18 March 2011 the Kotayk Regional Court granted the first applicant ’ s complaint and annulled the decision of 18 November 2010 to terminate the criminal proceedings. In doing so, it found that the body of inquiry had failed to investigate properly a number of issues such as the exact length of time when the form teacher had been away from the classroom, the exact time when Derenik Gasparyan had been beaten up, whether or not a physician had been available at the school at the time of the events and whether it would have been possible to save his life had he received timely first aid. Also, no panel forensic examination had been conducted to find out the reason for changes to Derenik Gasparyan ’ s internal organs and whether such modifications were connected with the blows sustained by him, to determine the lapse of time between those modifications and the time of the death, the type of intervention necessary to save his life, whether his death could have occurred in other circumstances, how his diseases might have evolved had he lived and after how long they might have caused his death.

On 7 June 2011 the Criminal Court of Appeal, having examined the Regional Court ’ s decision upon appeal by the Prosecutor, fully upheld it. In addition to the findings of the Regional Court, the Court of Appeal found that the cause of Derenik Gasparyan ’ s death had not been established in the course of the investigation and that it was still to be determined whether the blows to different parts of his body sustained during the fight were linked to his death or not. Furthermore, the Court of Appeal stated that the investigator had referred to the State Education Inspection instead of making his own legal assessment of the actions of the school administration.

On 7 July 2011 the criminal proceedings were resumed.

On 22 July 2011 an additional forensic medical examination was assigned. The expert was asked to determine the following:

1) the cause of Derenik Gasparyan ’ s death;

2) the cause of the injuries discovered on his body;

3) the types of diseases the latter suffered from while he was alive, and whether these diseases were linked to his death;

4) whether his injuries, if they resulted from him having been beaten up, had a direct link with his death;

5) whether those injuries in any way aggravated, or could have aggravated, the diseases that were directly linked with his death.

On 16 November 2011 the additional forensic medical examination was completed. The panel of experts mostly relied on the findings reflected in the expert ’ s opinion of 6 July 2011. As regards the link between the blows sustained by Derenik Gasparyan, the sudden worsening of his state of health, loss of consciousness accompanied by shaking and his death, the experts concluded that in view of the pathological changes in internal organs which existed while he was alive, the blows as well as Derenik Gasparyan ’ s psycho-emotional state at the given moment could have contributed to the epileptic seizure, and the development of acute respiratory failure and cardiac function disorder connected with it, which caused Derenik Gasparyan ’ s death.

On 7 December 2011 the investigator made a decision to terminate the criminal proceedings. The decision stated, inter alia , that although according to the conclusion of the panel of experts the causal link between Derenik Gasparyan ’ s death and his beating by brothers V.H. and I.H. was established, the latter could not be prosecuted for negligent homicide since the element of intention on their part was absent. In any event, V.H. and I.H. had not attained the age of criminal liability for any type of crime. As to the actions of the school administration and teaching staff, the decision stated that the form teacher and the school principal had been unaware of Derenik Gasparyan ’ s epileptic seizures. In the circumstances they did not realise, and could not have realised, the danger inherent in their actions (or inaction).

On 19 December 2011 the first applicant complained to the Prosecutor about the investigator ’ s decision.

By a decision of 28 December 2011 the Prosecutor rejected the complaint and upheld the investigator ’ s decision.

On 9 January 2012 the first applicant lodged a complaint with the Kotayk Regional Court seeking to annul the investigator ’ s decision of 7 December 2011 to terminate the criminal proceedings. He argued, in particular, that Derenik Gasparyan had died due to the failure on the part of the school administration properly to implement its duty to protect pupils. In this regard he relied on the contract between the school and the pupils ’ legal representatives. He also complained that no separate criminal proceedings were instituted on account of Derenik Gasparyan ’ s death, notwithstanding the fact that the causal link between the beating and his death had been established.

On 22 February 2012 the Kotayk Regional Court granted the first applicant ’ s complaint and annulled the decision to terminate the criminal proceedings. It referred to the decision of the same court of 18 March 2011, pointing out a number of flaws in the investigation, and found that, following the reopening of the proceedings, the body of inquiry had still failed to find out whether or not a physician had been available at the school at the time of the incident and whether it would have been possible to save Derenik Gasparyan ’ s life had he received timely first aid.

On 1 March 2012 the Prosecutor lodged an appeal. He argued, in particular, that contrary to the finding of the Kotayk Regional Court, it had been revealed during the investigation that, according to the relevant order of the director of Charentsavan Medical Centre, one physician had been put in charge of Schools No. 5 and 3 in Charentsavan. On the day of the events, in accordance with the schedule, the physician was on duty in School No. 3.

On 3 April 2012 the Criminal Court of Appeal granted the Prosecutor ’ s appeal, quashed the decision of the Kotayk Regional Court of 22 February 2012 and rejected the first applicant ’ s request to annul the decision to terminate the criminal proceedings. The Court of Appeal found, inter alia , that the body of inquiry had not addressed the question of whether it would have been possible to save Derenik Gasparyan ’ s life had he received timely first aid from a physician for objective reasons, given the fact that on 5 June 2010 the latter was on duty in School No. 3.

On 3 May 2012 the first applicant lodged an appeal on points of law. He argued in detail that no effective investigation had been carried out, mainly because the body of inquiry had failed to take the necessary steps to find those responsible for Derenik Gasparyan ’ s death. He reiterated his previous arguments in relation to the fact that no separate criminal proceedings were instituted on account of Derenik Gasparyan ’ s death although it had been established that the cause of the latter ’ s death was the beating from his classmates.

On 8 June 2012 the Court of Cassation declared the first applicant ’ s appeal inadmissible for lack of merit.

B. Relevant domestic law

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

Article 109 § 1 provides that causing death by negligence shall be punishable by a maximum of three years ’ imprisonment.

Article 118 provides that beating or other violent actions that have not generated the consequences envisaged by Article 117 (intentional infliction of bodily harm which causes short-term deterioration of health) shall be punishable by a fine in the maximum amount of one hundred times the fixed minimum wage or a maximum of two months ’ detention.

2. The Order of 26 December 2009 of the Minister of Education and Science on establishing the model contract of provision of free schooling services between a State school and the parent of a pupil

The order provides the example of the contract to be concluded between State schools and the parents (legal representatives) of pupils educated in State schools.

Part 3 of the model contract states the rights and responsibilities of the parties, including those of the school principal.

According to point 1(9) the school principal must secure the life and safety of the pupils by implementing legitimate actions to protect them from any interference against their interests and by taking preventive measures and keeping them away from narcotic substances, explosives, begging, vagrancy and other criminal and unlawful activity.

Part 6 provides that the parties bear responsibility under the law for the failure to perform their obligations in relation to, inter alia , securing the life and safety of a pupil .

COMPLAINTS

Relying on Article 2 of the Convention, the applicants complain that Derenik Gasparyan died as a result of the failure by the school administration and the teaching staff properly to perform their duty to protect his life and safety while he was under their supervision. They further complain under the same provision that the authorities failed to conduct an effective investigation into his death. They also rely on Articles 6, 8 and 13 of the Convention with regard to their complaints.

QUESTIONS TO THE PARTIES

1. Was Derenik Gasparyan ’ s right to life, ensured by Article 2 of the Convention, violated in the present case?

In particular, having regard to the State ’ s positive obligation under Article 2 of the Convention to protect the right to life (see paragraph 115 of Osman v. the United Kingdom , 28 October 1998, Reports of Judgments and Decisions 1998 ‑ VIII ), was there a violation of that provision in the instant case in view of the incident that occurred on 5 June 2010 in a State school in Charentsavan?

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 Articles 2 and 13 of the Convention?