Conscription of a young man with serious health problems and his subsequent death. Failure to protect life and ineffective investigation
JUDGMENT
Ashot Malkhasyan v. Armenia 11.10.2022 (app. no. 35814/14)
SUMMARY
The case concerned the death of the applicant’s son at the age of 22, within days of being drafted
into the army, following the military authorities’ decision that he was fit to undertake compulsory
military service despite his significant health problems.
The Court found in particular that the authorities had unjustifiably put the applicant’s son’s life in
danger when they decided to call him up, and that the authorities had then failed to conduct an
effective investigation into the matter.
PROVISION
Article 2
PRINCIPAL FACTS
The applicant, Ashot Malkhasyan, is an Armenian national who was born in 1946 and lives in
Yerevan.
In the summer of 2008, his 21-year-old son, A. Malkhasyan, was taken ill and was diagnosed with
cardial incompetence, reflux oesophagitis (inflammation of the oesophageal mucosa), laceration of
the mucous membrane of the cardia, Mallory-Weiss syndrome (bleeding from a tear or laceration of
the mucous membrane between the stomach and oesophagus), superficial gastritis and established
bleeding.
In December 2008 A. Malkhasyan underwent further medical examinations and was diagnosed with,
amongst other things, a hiatal hernia and Gilbert’s syndrome (elevated levels of unconjugated
bilirubin in the bloodstream). He was prescribed medication, put on a special diet and advised to
sleep with his head raised, to avoid bending over, and not to lift anything heavy.
The following March, he was called to the Arabkir military commissariat for a preliminary medical
examination for military service. He submitted his medical records to the relevant commission and
asked to undergo a thorough examination. That request, and a subsequent two made by the
applicant, were all refused by the Arabkir military commissar, A.U., who stated that, in any event, he
would be found fit for conscription. Nevertheless, similar requests to the Military Commissar of
Armenia and the Chief of Staff of the Armenian Defence Forces resulted in his being referred for
further examinations from 15 to 19 June 2009 at Erebuni Medical Centre in Yerevan.
A. Malkhasyan was examined by specialists, including a gastroenterologist and a neurologist. On the
instructions of A.U., the surgeon of the Arabkir military commissariat medical commission was also present. On 19 June 2009 the Erebuni Medical Centre delivered a final diagnosis of gastrointestinal motility disorders induced by psychological stress. However, that conclusion did not reflect the
previous diagnoses including Mallory-Weiss syndrome nor even the results of the medical tests
carried out that week by the gastroenterologist and neurologist of the medical centre.
A.U. then ordered the removal of ten documents from his medical records. During his questioning he
stated that he and the medical commission of the military commissariat had had doubts as to
whether A. Malkhasyan was actually ill.
The surgeon of the Central Medical Commission, A.Uz., concluded that no surgical pathology had
been found. On 25 June 2009 the commission found A. Malkhasyan fit for military service and sent
him to his assigned military unit. On 4 July 2009 A. Malkhasyan lost consciousness and was taken to
a local military hospital. The following day, in a coma, he was flown by air ambulance to the Central
Military Hospital in Yerevan, where he died later that day.
An internal investigation ordered by the Minister of Defence found that, had the military
commissariat and the Central Medical Commission properly examined his medical records, he would
not have been found fit for military service. An autopsy report concluded that the cause of his death
was coronary artery disease, and that he had also suffered from Mallory-Weiss syndrome, chronic
oesophagitis and chronic gastritis.
Charges were brought against the head of the Conscript Assembly Point Medical Commission and
two members of the Central Medical Commission. An ensuing combined forensic medical and
military examination concluded in September 2011 that A. Malkhasyan’s death could have been
linked to acute gastrointestinal bleeding (Mallory-Weiss syndrome) associated with covert
pathological changes affecting the heart (coronary sclerosis, cardiosclerosis).
In July 2014 the investigator decided to discontinue the prosecution for lack of sufficient evidence of
a crime and to terminate the criminal proceedings on the grounds that A. Malkhasyan’s death had
resulted from asymptomatic heart diseases, which had been aggravated due to the change in his
lifestyle and routine, and could not have been detected even prior to conscription.
The applicant disputed the investigator’s decision before the Military Prosecutor, who dismissed his
complaint. His request for a judicial review was dismissed, as was a subsequent appeal to the
Criminal Court of Appeal. His subsequent appeal on points of law was admitted for examination by
the Court of Cassation which, in June 2015, quashed the first-instance and appellate decisions.
The criminal proceedings were resumed in November 2015, and the case was sent for further
investigation. In February 2017 a commission of forensic and military medical experts was assigned
to look into it.
In July 2017 the investigator decided to end the criminal proceedings as the prosecution of the
doctors of Erebuni Medical Centre and A.Uz. had become time-barred. He also decided not to
prosecute A.U. as, although he had overstepped his public authority, there was no causal link
between his actions and the damage occurred. He had not interfered with A. Malkhasyan’s medical
examinations, and the medical specialists of the Central Assembly Point had received
A. Malkhasyan’s previous diagnoses from the applicant, who had transmitted the relevant
documents to the head of its medical commission.
THE DECISION OF THR COURT…
The Court considered that the conduct of the military authorities of the Arabkir military
commissariat and the Central Medical Commission, that is to say A.U. and A.Uz., as well as that of
the members of the Erebuni Medical Centre expert commission went beyond an error of judgment
or carelessness, and engaged the State’s responsibility under Article 2 of the Convention. It noted
that A.U., who had had a negative predisposition towards A. Malkhasyan and the applicant from the
outset, had apparently done everything possible to have him drafted into the army, even falsifying
his medical file before submitting it to the Conscript Assembly Point.
In that light, the Court found that the military authorities and the medical professionals involved in
A. Malkhasyan’s conscription – in reckless disregard of his medical history, including his emergency
hospitalisation less than a year before – had actively contributed to the decision that he was fit for
military service. As was established during the investigation, that decision had resulted in his death
within ten days of his starting his service. The Court therefore concluded that the authorities had
unjustifiably put his life in danger when they decided to call him up, thus failing to comply with their
obligation under Article 2 of the Convention to protect his life.
There had accordingly been a violation of the substantive limb of Article 2 of the Convention.
The Court also found that only an effective criminal investigation could satisfy the procedural
obligation imposed by Article 2 as a result of such conduct. However, the eight-year investigation
into his death had been terminated as a result of the decisions in July 2017 not to prosecute the
members of the Erebuni Medical Centre expert commission and A.Uz on account of the statutory
limitation period and, in so far as A.U. was concerned, on account of a lack of sufficient evidence of a
crime in his actions.
It noted that in June 2015 the Court of Cassation had essentially found that the investigation, which
had started six years previously, had been ineffective and unreasonably lengthy. The Court therefore
examined the part of the investigation which had taken place after that. It observed that it had not
been resumed until five months later, on 5 November 2015. The investigator had taken a number of
investigative steps, in particular, interviewing further the doctors of the Erebuni Medical Centre, and
members and staff of the military medical commissions involved in the procedure, and also
obtaining an additional medical expert report more than a year after the proceedings had been
resumed. However, the investigator had still failed to establish why the doctors of the Erebuni
Medical Centre had failed to fully and objectively assess A. Malkhasyan’s state of health and, more
importantly, whether their professional activity had been affected by the presence of a
representative of the Arabkir Military Commissariat, as ordered by A.U., during the medical
examinations. Moreover, the reason why A.U. had ordered the removal of important medical
documents from A. Malkhasyan’s file had still not been clarified. The Court noted that the decision not to prosecute A.U. merely stated, without reference to any evidence, that the representative of the Arabkir Military Commissariat had not interfered with A. Malkhasyan’s medical examinations.
As regards the decision not to prosecute the members of the Erebuni Medical Centre expert medical
commission and A.Uz. on account of the statutory limitation period, the Court noted that the Court
of Cassation had found in its decision of 15 June 2015 that when the investigation had been
terminated for the first time on 17 July 2014, the case file had contained a “significant body of
evidence” substantiating that A. Malkhasyan’s state of health had not been objectively and fully
assessed by the doctors of the centre and that the results of the examinations that had been carried
out had not been fully reflected in their conclusion. However, it was not until July 2017 that the
investigator considered it established that they had failed to properly fulfil their obligations.
The Court observed that, although the expert report issued after the reopening of the proceedings
did state more specifically that A. Malkhasyan’s previous diagnosis of Mallory-Weiss syndrome –
which was believed to have been the cause of gastrointestinal bleeding resulting in cardiac arrest –
should have been included in the conclusion concerning his state of health, an expert report in
September 2009 had already found that the sharp deterioration in A. Malkhasyan’s health and his
subsequent death had possibly been linked to acute gastrointestinal bleeding. In those
circumstances, it was not clear why the investigator had initially brought charges against other
members of the Central Medical Commission but not against A.Uz., the surgeon of the same
commission who had in fact reached the conclusion that A. Malkhasyan had no surgical pathology,
nor against the members of the Erebuni Medical Centre expert commission who had issued the
incomplete and inaccurate medical opinion which had served as the basis for the Central Medical
Commission’s decision in the first place. As a result, the prosecution of those individuals after more
than eight years after the events had become time-barred.
The Court concluded that the authorities had failed to conduct an effective investigation and that
there had therefore been a procedural violation of Article 2 of the Convention.
Just satisfaction (Article 41)
The Court held that Armenia was to pay the applicant 35,000 euros (EUR) in respect of nonpecuniary
damage and EUR 2,500 in respect of costs and expenses.
