CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 11 octobre 2022

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font:7pt 'Times New Roman'; display:inline-block } .s51DFF5CF { margin-top:0pt; margin-left:34pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s4598CDF { width:70.9pt; display:inline-block } .sD8AE9261 { width:36.9pt; display:inline-block } .sB1A859A2 { width:116.43pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     FOURTH SECTION CASE OF ASHOT MALKHASYAN v. ARMENIA (Application no. 35814/14)     JUDGMENT   Art 2 (substantive and procedural) • Positive obligations • Death of applicant’s son during compulsory military service, drafted in reckless disregard of medical conditions which rendered him unfit • Conduct of relevant military authorities and medical professionals beyond error of judgment or carelessness unjustifiably put applicant’s son’s life in danger • Ineffective and lengthy criminal investigation, eventually terminated due to statutory limitation   STRASBOURG 11 October 2022 FINAL   11/01/2023     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ashot Malkhasyan v. Armenia, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Gabriele Kucsko-Stadlmayer , President, Tim Eicke , Yonko Grozev, Armen Harutyunyan, Pere Pastor Vilanova, Jolien Schukking , Ana Maria Guerra Martins, judges , and Ilse Freiwirth, Deputy Section Registrar, Having regard to: the application (no.   35814/14) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Armenian national, Mr Ashot Malkhasyan (“the applicant”), on 23 July 2014; the decision to give notice to the Armenian Government (“the Government”) of the complaints concerning the death of the applicant’s son and to declare inadmissible the remainder of the application; the decision of 28 April 2022 to grant priority treatment to the application under Rule 41 of the Rules of Court; the parties’ observations; Having deliberated in private on 20 September 2022, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the death of the applicant’s son during compulsory military service as a result of the authorities’ alleged failure to adequately assess his state of health during his conscription, as well as the ensuing investigation. It raises issues under Article 2 of the Convention. THE FACTS 2.     The applicant was born in 1946 and lives in Yerevan. He was represented by Ms S. Safaryan, a lawyer practising in Yerevan. 3.     The Government were represented by their Agent, Mr G. Kostanyan, and subsequently by Mr   Y.   Kirakosyan, Representative of the Republic of Armenia on International Legal Matters. 4.     The facts of the case may be summarised as follows. background to the case 5.     The applicant is the father of A. Malkhasyan, who died at the age of 22. 6 .     Upon finishing university, A. Malkhasyan was drafted into the Armenian army in the summer of 2009. On 25 June 2009 he was found fit for military service and sent to his assigned military unit the next day. 7 .     On 4 July 2009 A. Malkhasyan lost consciousness and was transported to a local military hospital, where he was pronounced clinically dead. His medical records indicated the following clinical diagnosis: post-resuscitation disease and gastrointestinal bleeding. 8 .     On 5 July 2009 A. Malkhasyan was urgently transported by air ambulance to the Central Military Hospital in Yerevan, where he was placed in the intensive care unit in a coma. He was diagnosed with post ‑ cardiopulmonary resuscitation syndrome, cerebral oedema (brain swelling), bilateral aspiration pneumonia and gastrointestinal bleeding. He died the same day. state of A. Malkhasyan’s health prior to conscription 9 .     On 10 July 2008 an ambulance was called for A. Malkhasyan, who was violently vomiting a dark substance, extremely weak and experiencing epigastric pain. He was then 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. As a result of treatment received at Mikayelyan Hospital in Yerevan, his condition stabilised and the bleeding stopped. He was discharged on 21 July 2008 and instructed to remain under the care of a gastroenterologist and to undergo an examination in thirty days. 10 .     In December 2008 A. Malkhasyan underwent examinations owing to his poor state of health. He was diagnosed with, inter alia , a hiatal hernia, Gilbert’s syndrome (elevated levels of unconjugated bilirubin in the bloodstream) and prescribed medication and a special diet. He was also advised to sleep with his head raised and not to bend or to lift heavy things. A. Malkhasyan’s conscription 11 .     In March 2009 A. Malkhasyan was requested to report to the Arabkir military commissariat in order to undergo an initial medical examination. 12.     On an unspecified date he went to the Arabkir military commissariat and submitted his medical records to the relevant medical commission. 13 .     In April 2009 he asked to undergo an additional medical examination but the Arabkir military commissar, A.U., refused to refer him for further medical checks. Thereafter the applicant went to see A.U. and asked him to sign a note whereby his son would be referred for medical examinations. A.U. refused to do so very rudely, stating that the applicant’s son was going to be conscripted in any event. 14 .     On 25 May 2009 the applicant submitted a written request for an additional medical examination for his son. 15 .     On 29   May 2009 that request was refused by A.U. on the grounds that the medical documents submitted were sufficient to conclude that A.   Malkhasyan was fit for military service. 16 .     The applicant sent similar requests to the Military Commissar of Armenia and the Chief of Staff of the Armenian Defence Forces. 17.     On 12 June 2009 the Military Commissar of Armenia ordered A.U. to again present A. Malkhasyan to the Central Medical Commission in order to determine whether he was fit for military service. 18 .     Thereafter A.U. referred A. Malkhasyan to undergo further medical examinations at Erebuni Medical Centre in Yerevan from 15 until 19 June 2009, after which a relevant commission was to deliver a conclusion concerning his medical condition. Upon A.U.’s instructions, M.S., the surgeon of the Arabkir military commissariat medical commission, was present during A. Malkhasyan’s examinations at Erebuni Medical Centre. 19 .     In the course of his medical examinations at Erebuni Medical Centre, A. Malkhasyan was examined by specialists, including a gastroenterologist who diagnosed him with erosive gastritis, superficial duodenitis, gastrointestinal motility and a hiatus hernia, and a neurologist who diagnosed him with vegetative vascular dystonia with crises. 20 .     On 19 June 2009 the relevant commission delivered a medical conclusion based on the results of A. Malkhasyan’s examinations with the following final diagnosis: gastrointestinal motility disorders induced by psychological stress. 21 .     On 25 June 2009 A. Malkhasyan was summoned to the Central Medical Commission, which found him fit for military service. initial investigation 22.     On 4 July 2009 A. Malkhasyan’s brother went to the military unit to visit him. Having learnt that A. Malkhasyan had fainted that day and been rushed to hospital, his brother filed a report to the effect that he had suffered from a number of diseases before his conscription and that he had been drafted into the army unlawfully. 23.     On the same date the Second Garrison Investigation Department of the Investigative Service of the Ministry of Defence made a decision to institute criminal proceedings into the matter under Article 376   §   1 of the Criminal Code (see paragraph 59 below). 24 .     On 5 July 2010 the Fourth Garrison Investigation Department started an investigation into the circumstances of A. Malkhasyan’s death. 25.     On the same date an autopsy was ordered. 26.     On 6 July 2009 the Minister of Defence ordered an internal investigation into the circumstances of A. Malkhasyan’s death. 27.     On 10 July 2010 the Investigative Department of the Ministry of Defence took over the investigation. The proceedings instituted on 4   July   2010 and the investigation into the circumstances of A. Malkhasyan’s death were joined in one case. 28.     Several of A. Malkhasyan’s co-servicemen were questioned shortly after his death and submitted that he had not looked healthy and had been pale and very thin. 29 .     On 29 July 2009 A.K., the head of the Conscript Assembly Point Medical Commission, was questioned. He stated, inter alia , that on 5   July   2010, having learnt that A. Malkhasyan had been transferred to the Central Military Hospital, he had gone there and seen sufficient medical documents to cast doubt on Erebuni Medical Centre’s conclusion regarding his state of health. Having familiarised himself with the full medical history taken at Erebuni Medical Centre and the results of the examinations there, and comparing them with the content of that conclusion, he was able to submit that those examinations had intentionally not been taken into account so that A. Malkhasyan would be found fit for military service. If the relevant information had been reflected in the conclusion, he would have been found unfit for military service. 30 .     On the same date the head of the Military Medical Department of the Ministry of Defence was questioned and stated, in particular, that A.   Malkhasyan would have been found unfit for military service had the military commissariat and the Central Medical Commission properly examined his medical records. 31 .     On 26 August 2009 the Minister of Defence issued an order, based on the results of the internal investigation, whereby a number of persons who had been involved in A. Malkhasyan’s conscription, including A.U. and A.K., were reprimanded. The relevant parts read as follows: “... the Central Medical Commission, having in its possession all relevant documents concerning [A. Malkhasyan’s] illnesses, was obliged to treat him differently by sending him for thorough examinations; it should have made a correct decision concerning [his] conscription. ... - the medical commission of the Arabkir military commissariat had recognised [A.   Malkhasyan] ‘fit for combatant service’ without an inpatient examination in a situation where the medical commission had difficulty in assessing the condition of his stomach and the hiatus hernia indicated in the medical records, - the military commissar had referred [A. Malkhasyan] for examination only when ordered to do so by his superior, - the military commissariat, Erebuni Medical Centre, the Central Medical Commission failed to fully take into account ... the medical documents submitted by [A. Malkhasyan], - the results of the examinations carried out at Erebuni Medical Centre between 15   and 19 June of the current year had not been full and objective, based on which the military commissariat and the Central Medical Commission had recognised [A.   Malkhasyan] as ‘fit for combatant service’; - medical documents ... had not been included in [A. Malkhasyan’s] personal file, - the numbering of documents (16/22) in the personal file is mentioned with corrections and changes, ... - [A.U.], according to the statement of [A. Malkhasyan’s] brother, had an unjustified argument with [A. Malkhasyan’s] relatives, treating them disrespectfully and expressing doubt as to the veracity of the documents submitted by the parent ... In order to penalise those responsible and prevent the occurrence of such incidents in the future, I order: 1.     A warning [to be issued] concerning ‘Incomplete suitability for service’ to [A.U.] ... for gross violations ... 2.     The imposition of a ‘strict reprimand’ in respect of: - [A.H.], the head of the conscription department of the Arabkir military commissariat; - [A.K.] ... 3.     The imposition of a ‘reprimand’ in respect of: - [H.Sa.], the Arabkir military commissariat’s secretary ... ...[illegible] 4.     ... [illegible] - involve more qualified medical professionals in the medical commission’s participation in the conscription procedure ... - examine the manner in which [A. Malkhasyan’s] medical examinations were carried out at Erebuni Medical Centre. 5.     The attention of the military commissar [to be drawn to] ... the deficient manner of record-keeping of the Arabkir military commissariat, ... medical professionals ... ... 8.     The Military Commissar of [Armenia] to: ... - pay attention to the medical documents submitted by conscripts and their relatives, examine in detail and render a fair decision in relation to each request/complaint ...” 32 .     On 12 August 2009 the autopsy report was received. The forensic expert concluded that the cause of A.   Malkhasyan’s death had been coronary artery disease due to rheumatic pancarditis, cardiomyopathy, rheumatic coronaritis, diffuse cardiosclerosis, connective tissue disorder of the aortic and pulmonary valves (semilunar valves), which the deceased had suffered while alive and which were directly linked to his death. It was further mentioned in the report that A.   Malkhasyan had also suffered from Mallory ‑ Weiss syndrome, chronic oesophagitis with superficial erosions of the oesophagus and chronic gastritis, which were not directly linked to his death. 33 .     On 14 September 2009 A.U. was questioned and stated, inter alia , that he had ordered the removal of ten medical documents from A. Malkhasyan’s personal file. He and the medical commission of the military commissariat had had serious doubts as to whether A. Malkhasyan was actually ill, and he had therefore instructed M.S. to be present during his medical check-ups at Erebuni Medical Centre. From 15 to 19 June 2009 M.S. had been present during A. Malkhasyan’s medical examinations there in order to ensure objectivity. 34.     On 26 January 2010 the investigator ordered a forensic medical examination to be conducted by a commission of forensic medical experts. 35 .     On 3 May 2010 the commission of forensic medical experts delivered its report, the relevant parts of which read as follows: “... the diseases that have caused the death, as determined by the forensic medical examination ... originated before 2008, a fact which is supported by the morphological changes to the body, as well as the typical changes recorded on the electrocardiogram performed at Mikayelyan Hospital in 2008 ... ... physical and psychological and emotional stress during military service could have had a negative effect on [A. Malkhasyan’s] coronary and arterial diseases, thus aggravating his state of health. ... from a medical point of view, it was necessary to prescribe A. Malkhasyan a special diet, and limited physical and psychological and emotional stress. Although in the present case gastrointestinal diseases were not directly linked to the death, they could have ... contributed to the cause of death. ... According to the records of A. Malkhasyan’s examinations at Erebuni Medical Centre, erosive gastritis and superficial duodenitis had been diagnosed but had not been reflected in the conclusion on the state of health ... If A. Malkhasyan had undergone the relevant examinations ... it would have been possible to diagnose the heart pathology that was the cause of his death as well as his other diseases ... if this had been diagnosed and relevant treatment administered ... it would have been possible to avoid the further deterioration of his health and also his death.” 36.     On 24 June 2010 the investigator brought charges under Article   315   §   2 of the Criminal Code (see paragraph 57 below) against T.G., a therapist, who at the relevant time was a member of the Central Medical Commission. The investigator’s decision stated, in particular, that T.G. was being charged for failing to undertake the necessary measures in order to ensure A. Malkhasyan’s complete medical examination and unlawfully recognising him fit for military service when he had not been. 37.     On 16 July 2010 the investigator charged A.K. with aggravated negligent attitude to service under Article 376 § 1 of the Criminal Code (see paragraph 59 below). The investigator’s decision stated, in particular, that A.K. was being charged for failing to take into account the information concerning A. Malkhasyan’s state of health indicated in the medical documents submitted by him and to send him for additional examinations, as a result of which the latter, who had not been fit for service, had been drafted into the army unlawfully. 38.     On 30 August 2010 the investigator brought charges under Article   315   §   2 of the Criminal Code (see paragraph 57 below) against G.H., a neurologist, who was a member of the Central Medical Commission at the relevant time. The investigator’s decision stated, in particular, that G.H. was being charged for failing to undertake the necessary measures to ensure A.   Malkhasyan’s complete medical examination and recognising him fit for military service as a result of which the latter, who had not been fit for service, had been drafted into the army unlawfully. 39.     On 2 November 2010 the investigator ordered a combined forensic medical and military medical examination on the grounds that such an examination was the only possible way to clarify a number of discrepancies which had arisen during the investigation. 40.     On 12 November 2010 a commission of experts was formed, based on the relevant order of the Minister of Health for the purpose of conducting the combined forensic examination. 41 .     On 17 September 2011 the commission delivered its report, according to which the sharp deterioration of A. Malkhasyan’s health on 4 July 2009 and his subsequent death could possibly have been linked to acute gastrointestinal bleeding (“Mallory-Weiss syndrome”) associated with covert pathological changes affecting the heart (coronary sclerosis, cardiosclerosis) and the resultant cardiac arrest and swelling in the brain as a result of the necessary resuscitation measures. Apart from his gastrointestinal disorders, A.   Malkhasyan had suffered from coronaritis and cardiosclerosis, which had been asymptomatic and without functional changes since he had not made any complaints in this regard. A. Malkhasyan’s additional treatment and the postponement of his conscription could possibly have prevented the fatal outcome. Also, it could not be ruled out that the accumulation of such pathological conditions might have led to the same outcome in civilian life. 42 .     On 17 July 2014 the investigator decided to discontinue the prosecution of T.G., A.K. and G.H. for lack of corpus delicti and to terminate the criminal proceedings on the grounds that A. Malkhasyan’s death had resulted from asymptomatic heart diseases, the symptoms of which could not have been felt but which later, as a result of a change of lifestyle and routine, had led to the aggravation of asymptomatic pathologies resulting in heart failure. The diseases in question had not been detected and could not have been detected even prior to conscription, either at the clinics where A.   Malkhasyan had previously been examined, or subsequently by the doctors who had examined him during the conscription process. In respect of this point, the investigator referred, in particular, to the expert report of 17   September 2011. applicant’s appeals 43.     The applicant disputed the investigator’s decision of 17 July 2014 before the Military Prosecutor, who dismissed his complaint. 44 .     On 13 August 2014 the applicant requested a judicial review of the above-mentioned decisions of the investigator and prosecutor. 45.     By a decision of 11 November 2014 the Arabkir and Kanaker-Zeytun District Court of Yerevan (“the District Court”) dismissed the applicant’s complaint and fully upheld the decisions in question. 46.     The applicant lodged an appeal, which was dismissed by the Criminal Court of Appeal on 27 December 2014. 47.     The applicant lodged an appeal on points of law whereby he requested that the lower courts’ decisions be quashed and the case be remitted for fresh examination. His appeal was admitted for examination by the Court of Cassation. 48 .     By a decision of 5 June 2015 the Court of Cassation partly allowed the applicant’s appeal. It quashed the first-instance and appellate decisions of 11 November and 27 December 2014 respectively and adopted a new decision ordering the investigating authority to remedy the violations of the applicant’s rights arising from the criminal proceedings concerning the death of his son. The relevant parts of that decision read as follows: “ ... Turning to the circumstances of the present case, the Court of Cassation notes that there is ample evidence in the case file showing that the conscript [A. Malkhasyan] suffered from a number of illnesses ... Nevertheless, after examination by the Arabkir military commissariat medical commission, Erebuni Medical Centre and then the Central Military Medical Commission, [A. Malkhasyan] was found fit for military service and drafted into the army ... The Court of Cassation finds it necessary to note that it is clear from the content of the combined forensic examination report [delivered on 17 September 2011] that only the coronaritis and cardiosclerosis were asymptomatic, a finding which was based on the absence of complaints by [A. Malkhasyan] while alive ... This finding does not mean that the absence of a person’s complaints rules out the objective possibility of diagnosing the above-mentioned coronary diseases via the relevant examinations ... Therefore, the Court of Cassation finds that the investigator’s conclusion that [A.   Malkhasyan’s] coronary diseases could not have been detected by medical professionals is unsubstantiated ... Moreover, in circumstances where there were two forensic medical examinations, [the autopsy] and [by a commission of forensic medical experts] ... it is not clear from the investigator’s decision to appoint a combined forensic medical and military medical examination ... whether it is additional or repeated ... the above-mentioned circumstances may cast serious doubts on the results and credibility of the forensic examination in question. ... the investigative authorities have failed to duly consider ... the following facts: 1) there is a significant body of evidence in the case file ... establishing that the results of [A. Malkhasyan’s] examinations by the medical commission of Erebuni Medical Centre have not been fully reflected in the conclusion submitted to the Central Medical Commission ... In particular: - the gastroenterologist’s diagnosis of ‘erosive gastritis, superficial duodenitis, gastrointestinal motility [and a] hiatus hernia’ has not been reflected in the conclusion on the state of health, the neurological diagnosis ‘vegetative vascular dystonia with crises’ was not correctly formulated.   ... the Court of Cassation notes that the case file contains ample evidence that [A.   Malkhasyan] was not fit for military service due to his state of health ... Whereas his state of health was not objectively and fully assessed by the doctors and (or) reflected in the conclusion concerning his state of health. ... the investigator has failed to establish the reasons for not carrying out the relevant medical examinations and for not objectively and completely reflecting the results of the examinations that had been carried out in the ... conclusion ... ... the investigator has failed to make a proper legal assessment ... of [A.U.’s] actions ... [A.U.] stated that he had ordered the removal of ten documents from [A.   Malkhasyan’s] file ... However, the investigator has failed to clarify the purpose for which A.U. had ordered the removal of the documents from [A.   Malkhasyan’s file], especially documents that could have been crucial in determining whether he was fit for military service. Also, the investigator has not established whether [A.U.] was authorised to make such an order. ... the investigator has failed to establish whether the Arabkir Military Commissariat interfered with the professional activity of the doctors of Erebuni Medical Centre by sending [its person M.S.] there ... ... the Court of Cassation notes that the reasonable time-limits for investigation have been grossly violated in the present case ...” further investigation 49 .     On 5 November 2015 the criminal proceedings were resumed and the case was sent to the Department for the Investigation of Cases of Special Importance of the Investigative Committee for further investigation. 50 .     A number of witness interviews were conducted, including with medical personnel of Erebuni Medical Centre and members and staff of the military medical commissions involved in A. Malkhasyan’s conscription. 51 .     On 13 February 2017 the investigator assigned a commission of experts to conduct an additional combined forensic medical and military medical examination, finding that the expert report of 17 September 2011 (see paragraph 41 above) was not sufficiently clear and complete. The relevant parts of the report delivered by the expert commission on 20   March   2017 read as follows: “ ... Question: Should the diagnosis of ‘Mallory-Weiss syndrome, gastrointestinal bleeding’ given by Mikayelyan Hospital ... have been recorded in the conclusion of the surgical department of ‘Erebuni Medical Centre’ concerning [A. Malkhasyan’s] state of health ... ? Answer: Yes ... Question: Which of the diagnoses mentioned ... could have resulted in anaemia and cardiac arrest ...? Answer: Mallory-Weiss syndrome is characterised by gastrointestinal bleeding which can lead to anaemia, while the latter, among other reasons, could have resulted in acute changes in the heart muscle and caused cardiac arrest. Question: Which of the diagnoses mentioned ... specifically caused cardiac arrest ... ? Answer: ... gastrointestinal bleeding linked to Mallory-Weiss syndrome ... could have been the cause of heart affection. Question: If [A. Malkhasyan’s] ... diagnoses were fully and objectively reflected in the conclusion, what decision should the surgeon or neurologist of the [Central Medical Commission] have reached during the session of [25 June 2009] ... and would [A. Malkhasyan] have been found fit for military service? Answer: ... had all the diagnoses been included ... the members of the ... commissions could have possibly reached a different decision ... In that case, most probably, the [Central Medical Commission] would have suspended [A. Malkhasyan’s] conscription for three years ... Question: Did the surgeon of the [Central Medical Commission] reach an incorrect decision ... considering the medical documents [concerning previous diagnoses]...? Answer: In view of the presence of the ... medical documents [concerning previous diagnoses] in the case file ... the surgeon of the [Central Medical Commission] reached an incorrect decision by stating that ‘No surgical pathology has been discovered’ ... ... Question: Is there a link between the actions of the members of the commission of the surgical department of ‘Erebuni Medical Centre’ and the medical specialists of the [Central Medical Commission] and the subsequent deterioration of [A. Malkhasyan’s] health and his death? Answer: [The people referred to in the question] failed to diagnose the diseases and pathological conditions discovered during the autopsy which are directly linked to his death ... ” 52 .     By a decision of 19 July 2017 the investigator terminated the criminal proceedings. He found it established that after A. Malkhasyan had been referred to Erebuni Medical Centre’s surgical department for medical examinations, military commissar A.U. had sent M.S., the surgeon of the Arabkir military commissariat medical commission, there with A.   Malkhasyan, instructing her to attend his medical examinations without A.U. having authority to do so. A.S., the surgeon on duty that day, had taken charge of A. Malkhasyan’s medical examinations and had been involved as a member of the commission carrying out the medical and expert examination of his state of health. The commission had been presided by H.S. while A.A., the head of the surgical department, had been its other member. On 15 June 2009, the first day of the medical examinations, A.   Malkhasyan had submitted his medical documents to A.S., including the diagnosis provided by Mikayelyan Hospital. M.S. had attended A.   Malkhasyan’s medical examinations at Erebuni Medical Centre from 15   to 17 June 2009 and reported their results to A.U. Upon completion of the medical examinations, on 19 June 2009 A.S. had drawn up a conclusion which did not fully and accurately reflect the results. The members of the Erebuni Medical Centre commission, displaying a negligent attitude to service, had signed the incomplete conclusion concerning A. Malkhasyan’s state of health. On 25 June 2009 that conclusion had been submitted to the Central Medical Commission where, despite the presence of medical documents in the file attesting to Mallory-Weiss syndrome, gastrointestinal bleeding and other conditions, surgeon A.Uz. had stated “No surgical pathology has been discovered”, following which A. Malkhasyan had been recognised as fit for combatant service. On 26 June 2009, the day A. Malkhasyan was to be drafted into the army, A.U., without having authority, had instructed the removal of A. Malkhasyan’s medical documents from his file and that he be sent to the Conscript Assembly Point without those documents. However, on the same day, the applicant had provided A.K., the head of the Conscript Assembly Point medical commission, with A. Malkhasyan’s medical documents. A.K. had then had a telephone conversation with A.Uz., who had stated that the diagnoses in the medical documents in question had not been confirmed during the medical examinations carried out at Erebuni Medical Centre. A.K. had accepted the Central Medical Commission’s decision as final, on the basis of which A. Malkhasyan had been drafted into the army the same day. 53 .     By a decision of the same date the investigator decided not to prosecute H.S., A.A., A.S. and A.Uz. According to the decision, it was established that they had failed to properly fulfil their obligation by displaying a negligent attitude to service as a result of which A. Malkhasyan – despite him suffering from diseases incompatible with military service – had been drafted in to the army, where his diseases had progressed and led to his death within days. The actions of H.S., A.A., A.S. and A.Uz. were thus punishable under Article 315 § 2 of the Criminal Code (see paragraph 57 below). However, their prosecution had become time-barred and they had not objected to their prosecution being discontinued. 54 .     By another decision of the same date the investigator decided not to prosecute A.U. for lack of corpus delicti in his actions. The relevant decision stated, in particular, that A.U., in his capacity as Arabkir military commissar, had had no authority to send M.S. to Erebuni Medical Centre with A.   Malkhasyan and to remove any documents from the latter’s personal file and that by having given such orders he had exceeded his public authority. However, the application of Article 375 § 1 of the Criminal Code (see paragraph 58 below) required the actions in question to have caused grave damage and there to have been a causal link between those actions and such damage. However, M.S. had not interfered with A. Malkhasyan’s medical examinations, and the medical specialists of the Central Assembly Point had been informed about A. Malkhasyan’s previous diagnoses as the applicant had transmitted the relevant documents to the head of its medical commission. In such circumstances, no grave damage had been caused as a result of A.U. exceeding his authority. RELEVANT LEGAL FRAMEWORK relevant domestic law Criminal Code 55 .     Article 19 § 3 of the Criminal Code provides that intentional acts for which the maximum penalty does not exceed five years’ imprisonment and negligent acts for which the maximum penalty does not exceed ten years’ imprisonment are considered “medium gravity offences”. 56 .     Article 75 § 1 (2) provides that a person is exempted from criminal liability if five years have passed since the commission of a “medium gravity offence”. 57 .     Article 315 § 2 provides that failure by an official to carry out or to properly carry out his duties as a result of a negligent attitude to service or bad faith, which has negligently caused a person’s death or other grave consequences, is punishable by a maximum of five years’ imprisonment. 58 .     Article 375 § 1 provides that abuse of authority or public position, exceeding public authority or omission by a superior or public official, if such acts were committed for selfish purposes, personal interests or in the interests of a group and this has resulted in serious harm, is punishable by two to five years’ imprisonment. 59 .     Article 376 § 1 states that a military official’s negligent attitude to service which has caused considerable damage is punishable by temporary exclusion from military service for a maximum period of two years, a maximum of two years’ military confinement or a maximum of three years’ imprisonment. The same offence which has caused grave consequences is punishable by three to six years’ imprisonment (Article 376 § 2). Code of Criminal Procedure 60 .     Article 35 § 1 (6) of the Code of Criminal Procedure provides that if the relevant limitation period has expired, no criminal case may be instituted and no criminal prosecution may be carried out, whereas a criminal case that has already been instituted must be terminated. 61 .     Article 35 § 3 provides that the investigator and the prosecutor must decide whether to terminate the proceedings or discontinue the prosecution if they discover, at any stage of the pre-trial proceedings, circumstances precluding the continuation of the criminal case. 62 .     Article 35 § 6 provides that it is not permissible to terminate the criminal case and discontinue the prosecution on the basis of,   inter alia , Article 35 § 1 (6) of the CCP if the accused objects. In such cases, criminal proceedings will continue under the ordinary procedure. THE LAW ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 63.     The applicant complained under Articles 2 and 13 of the Convention about the death of his son during military service, and that the authorities had failed to carry out an effective investigation into the matter.   Since it is master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia   [GC], nos. 37685/10 and 22768/12, §§   114, 124 and 126, 20 March 2018), the Court finds it appropriate to examine the applicant’s complaints solely under Article 2 of the Convention, the relevant part of which reads as follows: “1.     Everyone’s right to life shall be protected by law.” The Government’s request to strike out the application under Article 37 § 1 of the Convention 64 .     The Government submitted a unilateral declaration   requesting   the Court   to strike the application out of its list of   cases pursuant to Article 37 §   1 of the Convention. The applicant disagreed with the terms of the unilateral declaration. 65 .     It may be appropriate in certain circumstances to strike out an application, or part thereof,   under Article   37 §   1 of the Convention on the basis of a   unilateral declaration   by the respondent Government even where the applicant wishes the examination of the case to be continued. Whether this is appropriate in a particular case depends on whether the   unilateral declaration   offers a sufficient basis for finding that respect for human rights as defined in the Convention does not require the Court to continue its examination of the case (Article 37 § 1   in fine ; see, inter alia , Tahsin Acar v.   Turkey (preliminary issue) [GC], no. 26307/95, § 75, ECHR 2003-VI). Relevant factors in this respect include the nature of the complaints made, whether the issues raised are comparable to issues already determined by the Court in previous cases, the nature and scope of any measures taken by the respondent Government in the context of the execution of judgments delivered by the Court in any such previous cases, and the impact of these measures on the case at issue (see Tahsin Acar , cited above, § 76). The present application raises serious issues, which have not already been determined by the Court in previous cases, as regards the assessment of a conscript’s physical health when determining whether the individual in question is fit to undergo military service. The Court therefore considers that the unilateral declaration submitted by the Government   does   not offer a sufficient basis for finding that respect for human rights as defined in the Convention does not require the Court to continue its examination of the case (Article 37 § 1 in fine ).   Hence, the Court rejects the Government’s request to strike the application out and will accordingly pursue its examination of the admissibility and merits of the case. Admissibility Compliance with the six-month rule 66 .     The Government argued that the six-month period in relation to the applicant’s complaint under the substantive limb of Article 2 of the Convention should be calculated from 26 August 2009, the date of the order of the Minister of Defence whereby the persons involved in A. Malkhasyan’s conscription had been reprimanded and a number of shortcomings in the procedure had been established (see paragraph 31 above). They maintained that the criminal proceedings, which had been pending when the Minister of Defence had issued the order, could not have established any more facts as regards the State’s failure to protect A. Malkhasyan’s life. By the order of 26   August 2009 the domestic authorities had acknowledged the breach of his right to life in its substantive aspect. 67.     The applicant submitted that the order of the Minister of Defence of 26 August 2009 (see paragraph 31 above) had been an administrative decision which had not acknowledged the breach of A. Malkhasyan’s right to life. It had merely been aimed at reprimanding those in breach of the relevant internal service regulations. 68.     As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant, and, where the situation is a continuing one, once that situation ends (see, among other authorities, Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 259, ECHR 2014 (extracts)). 69 .     The Government argued that the   applicant’s complaint about the State’s alleged failure to protect A. Malkhasyan’s life during military service had been lodged outside the six-month limit which, according to the Government, should be calculated from 26 August 2009 (see paragraph 66 above). 70.     The Court notes at the outset that it has not been provided with any details or documents in relation to the internal investigation carried out by the Ministry of Defence. Thus, there is no material available before it in relation to the internal investigation, including its dates, duration, the names and positions of the officials who assigned it or those of the officials who conducted it. In any event, it is clear that the internal investigation by the Ministry of Defence was purely internal and that the applicant was neither aware of it nor provided with its material at or around the time of the adoption of the order of the Minister of Defence of 26 August 2009. It is also clear from the content of that order that it was of a purely disciplinary nature and concerned the specific officials who were reprimanded for certain breaches of internal service regulations thereby identified rather than it addressing in any form the question of responsibility of the authorities and the Ministry of Defence for, in particular, failure to protect A. Malkhasyan’s life. 71 .     Against this background, the Court finds that the order of the Minister of Defence of 26 August 2009 cannot be considered a “final decision” within the meaning of Article 35   §   1 of the Convention. It cannot therefore be said that the applicant failed to comply with the six-month rule by not bringing his complaint under the substantive limb of Article 2 of the Convention to the Court within six months of that order. The Court notes that the applicant lodged the present application before the Court on 23 July 2014 while the criminal proceeding