Published on 19 June 2023

FOURTH SECTION

Application no. 28546/18 Suren NIKOGHOSYAN against Armenia lodged on 6 June 2018 communicated on 28 May 2023

STATEMENT OF FACTS

The applicant, Mr Suren Nikoghosyan, is an Armenian national who was born in 1957 and lives in Meghri. He is represented before the Court by Ms T. Sargsyan, a lawyer practising in Yerevan.

The circumstances of the case

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

S.B., a medical herbalist having no medical degree, had been treating patients with herbs for years.

On 26 November 2013 S.B., who was by then registered as a sole entrepreneur under his own name (“S.B.”), was issued a license by the Ministry of Health for providing outpatient medical care and services (“Internal medicine (general therapeutics)” being indicated as the type of medical care and services). That license was delivered to “S.B.” sole entrepreneur for an indefinite period. To support his application for a license S.B. had relied on the employment contract concluded with L.K. who had a medical degree and a certificate attesting to the completion of a seven-week training course on “Contemporary issues of therapy”.

Thereafter, and apparently based on that license, S.B. continued treating patients with L.K. working as the doctor/therapist of “S.B.” sole entrepreneurship.

On 1 July 2014 the applicant’s son, H. Nikoghosyan, having seen an advertisement for “S.B. herbal treatment centre” on the internet, visited “S.B.” sole entrepreneurship seeking treatment for his type 1 diabetes.

From then until the beginning of September 2014 H. Nikoghosyan was given various herbs. The manner of their administration was explained, and he apparently abandoned the insulin treatment that had been prescribed for him. His condition subsequently deteriorated, resulting in several hospital admissions for toxic hepatitis. He eventually died on 6 October 2014.

On 23 October 2014 criminal proceedings were instituted on account of medical negligence.

On 24 October 2014 the applicant was recognised as H. Nikoghosyan’s legal heir in the criminal proceedings.

On 1 December 2014 the autopsy (which had started on 7 October 2014) was completed. According to the ensuing report, H. Nikoghosyan’s death was caused by overall self-intoxication of the body and multiple organ failure, resulting from poisoning with exogenous chemical compounds (not excluding plants) of unknown origin that were most likely taken orally.

On 15 July 2015 a forensic examination by a commission of medical experts was completed. It concluded that, having visited “S.B.” sole entrepreneur, H. Nikoghosyan had been given substances inappropriate for the use, including by their types and doses, for which there was no scientific justification․ The commission came to the conclusion that the reason for the eventual fatal outcome for H. Nikoghosyan had been the use (by drinking) of exogenous substances during his herbal treatment which had led to liver damage that had a direct causal link with the diffuse liver and necrosis eventually resulting in liver and multiple organ failure and his death.

On 10 November 2015, in response to enquiries of the Investigative Committee dated 4 and 6 November 2015, the Chief of Staff of the Ministry of Health replied, inter alia , that Government Decree no. 276-N of 27 March 2008 had set out a list of the types of medical care and services provided in Armenia in which medical herbalism was not indicated as a type of medical care and service subject to licensing. It was also stated that herbs and herbal compounds and brews made from them can be considered drugs only if they are properly packaged, show dosage, have standard composition, are labelled and are intended for the diagnosis, treatment and prevention of human diseases.

On 10 December 2015 L.K. was charged with medical negligence (Article 130 § 2 of the Criminal Code (“the CC”)).

On 24 December 2015 the investigator charged S.B. with causing death by negligence under Article 109 § 1 of the CC․ According to the relevant decision, S.B. had practised herbal medicine for many years. For more than 2 months S.B. had given H. Nikoghosyan various types of herbs which had been inappropriate for the use, including by their types and doses, for which there was no scientific justification, explained how to prepare and use them - in fact personally provided medical treatment, without foreseeing the possibility of H. Nikoghosyan’s death, although he could and should have foreseen it considering the absence of scientific justification for the treatments administered to the former, given his disease.

On 17 November 2016 the investigator decided to terminate the criminal proceedings against S.B. as his prosecution had become time-barred.

It appears that on 28 November 2016 the bill of indictment was finalised in so far as L.K. was concerned and the case was sent to the First Instance Court of General Jurisdiction of Shengavit District of Yerevan (the District Court) for examination on the merits.

No further information has been submitted in that connection.

The applicant appealed against the investigator’s decision to terminate S.B.’s prosecution, arguing that his actions had also contained elements of other crimes, including fraud, illegal entrepreneurship, provision of services which did not meet safety requirements and illegal private medical or pharmaceutical practice, manufacture or sale of falsified drugs.

The prosecutor dismissed the complaint on the grounds that the investigation had not revealed information concerning the other alleged crimes. He also noted that a license had been issued to S.B. in accordance with the procedure established by law and that medical herbalism was not included among the types of entrepreneurial activities subject to licensing.

The applicant complained further to the District Court.

On 22 May 2017 the District Court sent an enquiry to the Ministry of Health asking questions about regulations concerning medical herbalism.

On 30 May 2017 the Chief of Staff of the Ministry of Health replied that Government Decree no. 276-N of 27 March 2008 did not list medical herbalism as a type of medical care and service subject to licensing. In the reply, the Chief of Staff of the Ministry of Health also appeared to suggest that herbal treatment was a method of treatment rather than a specific type of medical treatment.

On 16 June 2017 the District Court granted the applicant’s appeal, obliging the investigating authority to eliminate the violations of his rights. It found that the investigating authority had failed to assess properly the fact that S.B., having received his license for the provision of general therapeutic services, had in fact practised medical herbalism under the guise of that license. It also found that the applicant’s right to a fair trial had been breached on account of the fact that the investigation had lasted more than 2 years, resulting in the criminal proceedings being terminated because of the expiry of the statutory time-limits.

The prosecutor and S.B. appealed against that decision.

On 4 August 2017 the Criminal Court of Appeal granted the appeals, quashed the decision of the District Court and dismissed the applicant’s complaint. It noted that S.B., in his capacity of sole entrepreneur and employer, had signed an employment agreement with L.K․ whose work included providing consultation as a doctor-therapist. It also noted that S.B., when applying for a license, had indicated L.K․ as the doctor-therapist who would provide therapeutic medical care and services․ Hence, S.B. was merely an employer who did not provide medical services and could not have provided such services. S.B. had practised medical herbalism which, pursuant to the Licensing Act, was not subject to licensing.

The applicant appealed on points of law to the Court of Cassation.

On 4 December 2017 his appeal was declared inadmissible for lack of merit. The decision was served on the applicant on 9 December 2017.

RELEVANT LEGAL FRAMEWORK

Article 19 § 2 of the Criminal Code provided that negligent acts for which the maximum penalty did not exceed three years’ imprisonment were considered “minor gravity offences”.

Article 75 § 1 (1) provided that a person was exempted from criminal liability if two years had passed since the commission of a “minor gravity offence”.

Article 109 § 1 provided that causing the death of a person by negligence was punishable by a maximum of three years’ imprisonment.

Article 130 § 2 provided that failure to perform or improper performance of professional duties by medical and support personnel as a result of negligence or bad faith, which had negligently caused the death of the patient undergoing treatment or his infection with HIV, was punishable by two to six years’ imprisonment with or without a ban on holding certain positions or engaging in certain activities for a maximum of three years.

In accordance with Article 279 § 2, provision of services that did not meet safety requirements and caused the death of a person by negligence was punishable by a fine of between three hundred and five hundred times the minimum wage or by a maximum of 5 years’ imprisonment with or without a ban on holding certain positions or engaging in certain activities for a maximum of three years.

Article 280 § 3 provided that illegal private medical or pharmaceutical practice, manufacture or sale of falsified drugs by engagement in private medical or pharmaceutical practice without state registration or special permission (a license), or manufacture or sale of falsified drugs which negligently caused the death of a person, was punishable by a maximum of 5 years’ imprisonment.

Under Section 1 § 2, providers of medical care and services are physical persons, legal entities, sole entrepreneurs, or enterprises not having the status of a legal entity, irrespective of their legal and organisational structure and type of ownership, that have obtained a license in accordance with the legislation of Armenia and provide certain types of medical care and services.

Under Section 18, providers of medical care and services in the Republic of Armenia shall have the right to provide appropriate medical care and services of selected types if they have obtained a licence to do so. Тhe right to perform a medical activity shall be conferred on individuals who have received the relevant education and specialisation in the Republic of Armenia and hold a licence to practise certain types of medical activity in accordance with the procedure established by the legislation of the Republic of Armenia.

Section 43 § 2 (3) of the Licensing Act states that the following types of activity in the field of healthcare are subject to licensing:

1. production of drugs;

2. pharmacies;

3. provision of medical care and services by sole entrepreneurs or organisations.

The Decree lists three categories of medical care and services: primary medical care, specialist medical care and medical care and services of narrow specialisation.

Internal medicine (general therapeutics) is listed as one of the types of specialist medical care, and endocrinology is listed as one of the types of medical care and services of narrow specialisation.

COMPLAINTS

The applicant complains under Article 2 of the Convention that the State failed in its obligation to protect his son’s life by failing to supervise the provision of medical services by a privately practising medical herbalist and to subject such services to licensing, and has failed to ensure the accountability of those at fault for his son’s death.

QUESTIONS TO THE PARTIES

1. Was H. Nikoghosyan’s right to life, ensured by Article 2 of the Convention, violated in the present case? In particular:

(a) Did the State comply with its duty to put in place an effective regulatory framework for the protection of patients’ lives encompassing necessary measures to ensure implementation, including supervision and enforcement of the relevant regulations (see Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, §§ 186 and 189, 19 December 2017?

The parties are requested to clarify whether there are any domestic regulations on practising alternative medicine in general and medical herbalism in particular.

They are further requested to describe the procedure for the licensing of medical care and services, including for follow-up supervision, if any, of the activity of legal or physical persons who have been issued such a license. In this context, the Government are requested to submit copies of the application and documents submitted by S.B. to the Ministry of Health in order to obtain a license for “S.B.” sole entrepreneurship to practise general medicine.

(b) If not, did any deficiencies in the regulatory framework and/or in ensuring the implementation thereof operate to H. Nikoghosyan’s detriment (ibid. § 188)?

2. Having regard to the procedural obligation to set up an effective and independent judicial system so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, could be determined and those responsible made accountable, were the proceedings in the present case in breach of the requirements of Article 2 of the Convention (ibid., §§ 214-21)?

The parties are requested to clarify the outcome of the criminal proceedings in respect of L.K. and to provide copies of the relevant documents, including the bill of indictment, judicial and other decisions.