Refusal to provide medical assistance to a soldier resulting in his death and lack of investigation for accountability. Violation of the right to life
JUDGMENT
Plokhovy v. Russia 22.12.2020 (app. no. 45024/07)
SUMMARY
Right to life and effective research. Procedural and substantive part of the right to life.
The applicants’ son died while serving in the army. The deceased was perfectly healthy, but complained strongly about a discomfort, however, he was not immediately provided with medical assistance. Only when he got into a fight with senior officers was he admitted to hospital with serious injuries, however it was too late for treatment and he passed away. Prosecutors did not prosecute and no investigation was conducted. The civil action for damages against the unit brought by the parents was subsequently dismissed.
The ECtHR ruled that the authorities ‘delays in the applicants’ son’s access to medical care, appropriate examinations and treatment had put his life in danger. Authorities also failed to take the necessary measures to protect his life.
The ECtHR found a violation of the essential part of Article 2 of the ECHR.
The Court also considered that the absence of a criminal investigation or other means that could determine the circumstances of the applicants’ son’s death also violated the procedural part of Article 2.
The Court awarded the applicants EUR 34,195 jointly for mental suffering and compensation and EUR 2,489 for costs.
PROVISION
Article 2
PRINCIPAL FACTS
The applicants, Tatyana Aleksandrovna Plokhova and Vladimir Mikhaylovich Plokhov, are Russian
nationals who were both born in 1959 and live in St Petersburg (Russia).
The case concerned the applicants’ son’s death while ill during compulsory military service, and the
lack of an effective investigation into his passing.
On 17 May 2004 the applicant’s son was drafted into the army; according to the applicants and the draft doctors, he was in good health.
In August 2005, he complained of pain. He asked to see a doctor at least twice, as his condition
worsened. His request was granted only on 3 September 2005, after his condition had again
worsened. He was diagnosed with acute gastritis. Tests were prescribed but not performed.
On 10 September 2005 he had an altercation with another soldier. After allegedly being repeatedly
hit in the head, he reported vomiting, blood in his urine and pain on his left side, among other
symptoms, to a doctor.
In the following week the applicant’s son was admitted to two hospitals. Various tests and
treatments were performed. He lost consciousness. On 19 September 2005, he died.
On 16 September 2005 an internal inquiry was completed into the events. It was found that the
causes of the applicant’s son illness and being beaten up had been the organisation and leadership
in his military unit. On 19 September 2005 criminal proceedings were initiated into the altercation of
10 September 2005. An autopsy was performed, which found multiple injuries on his body. The
assailant was convicted and given prison time, with the applicants being awarded 5,000 Russian
roubles in damages.
In 2005 and 2006 (twice) the prosecutor refused to initiate criminal proceedings into the applicants’
son’s death. The applicants appealed to the courts, in vain.
The applicants took a civil action against their son’s military unit in respect of his death. It was found
to be unsubstantiated at first instance and on appeal.
Relying on Article 2 (right to life) of the European Convention, the applicants complained that their
son’s death during military service and the lack of a proper investigation in that connection had
breached their rights.
THE DECISION OF THE COURT…
Τhe Court notes that the applicants’ son was healthy when he was drafted for military service.
The Court further notes that according to the applicants their son fell ill in August 2005, and unsuccessfully asked for permission to see a doctor on at least two occasions. It was not until 3 September 2005 when the applicants’ son’s state of health had deteriorated even further, that he was allowed to see a doctor. According to the medical records made following the applicants’ son’s admission to the medical unit on 3 September 2005, he had been ill for the previous three days. Based on that record the civilian experts concluded that the applicants’ son’s illness had begun in late August. In a later forensic report military experts doubted the above conclusion. However, the Court does not need to determine whether the applicants’ son fell ill with the kidney disease in early or late August 2005. It was a matter for the State authorities to investigate. The Court observes in this connection that the failure to allow the applicants’ son to visit a doctor became the reason for the disciplinary reprimand of the concerned military officers. Thus, the access to medical care was a fact and it was known to the investigating authorities.
During the period between the applicants’ son’s admission to the medical unit from 3 to 10 September 2005 no medical examinations, including the basic tests of blood and urine, were performed. That fact had been established by experts as early as in November 2005. The medical expert panel found that the failure to perform those tests had contributed to the applicants’ son’s death . Even if the other experts later doubted that earlier testing or that tests of blood and urine as opposed to a biopsy would have allowed correct diagnosis and successful treatment of the applicants’ son’s disease, the fact that no medical tests were carried out for eight days following his admission to the medical unit is undeniable.
The Court further notes that during the same period, between 3 and 10 September 2005 the applicants’ son received no treatment except for multivitamins and a medicine for the treatment of gastritis, which he did not have. The experts considered that treatment neither contraindicative, nor useful.
Only on the evening of 10 September 2005, when the applicants’ son was brought to Vyborg Military Hospital, and during the next day a number of examinations were performed on him. However, on 12 September the applicants’ son’s state of health deteriorated and he was transferred to the 442nd Circuit Hospital in a state of unconsciousness. He did not regain consciousness and died on 19 September 2005.
In such circumstances the Court considers that by delaying the applicants’ son’s access to medical care and then by delaying his proper examinations, testing and treatment, the authorities put his life in danger and failed to take necessary steps to safeguard his life.
Based on the above the Court concludes that in the absence of timely access to adequate medical care, the domestic authorities unjustifiably put the applicants’ son’s life in danger. The State has thus failed to comply with its positive obligation under Article 2 of the Convention.
- Procedural limb
The Court notes that in the present case the pre-investigation inquiry was opened only on 18 November 2005, about two months after the death of the applicants’ son. Further, the authorities repeatedly refused to open a criminal investigation into the death of the applicants’ son. After the last refusal of 10 March 2007 was confirmed by the national courts, no criminal investigation was ever performed.
As evidenced by the present case (see paragraph Σφάλμα! Το αρχείο προέλευσης της αναφοράς δεν βρέθηκε. above), the applicants were not granted victim status and, therefore, could not exercise the procedural rights accompanying that status. Thus, the pre-investigation inquiry carried out in the present case did not and could not satisfy the requirements of Article 2 of the Convention to the State’s procedural obligation.
As for civil, administrative or disciplinary remedies available to the applicants, the Court notes as follows. Although the applicants’ son’s superior officers, P. and O., were subjected to disciplinary reprimands for the applicants’ son’s initial delayed access to medical care, those proceedings did not concern other personnel or subsequent periods of medical assistance to the applicants’ son. Thus, the disciplinary proceedings alone did not establish as a whole the circumstances leading to the applicants’ son’s death. Furthermore, the applicants’ civil action seeking to establish civil responsibility on the part of their son’s military unit’s personnel was dismissed. It should be noted that the national courts mostly referred to the refusal to initiate criminal proceedings of 10 March 2007 as evidence of the lack of fault in the actions of the military unit’s personnel. It would thus appear that the refusal to open a criminal investigation also undermined the applicants’ chances of success in the civil courts, which did not carry out independent fact finding for the purpose of determining the cause of the death and holding those responsible to account .
The absence of a criminal investigation or of other remedies capable to comprehensibly establish the circumstances of the applicants’ son’s death leads the Court to the conclusion that the authorities failed to comply with their obligation to carry out an effective investigation thereof.
There has therefore been a violation of Article 2 of the Convention under its procedural limb.
