CEDH · CASELAW;COMMUNICATEDCASES;ENG — 22 octobre 2015

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s76CF415B { page-break-before:always; clear:both }     Communicated on 22 October 2015   THIRD SECTION Application no. 2324/12 Serob NERSISYAN against Armenia lodged on 16 December 2011 STATEMENT OF FACTS The applicant, Mr Serob Nersisyan, is an Armenian national who was born in 1959 and lives in Garni Village. He is represented before the Court by Mr M. Ghazaryan, a lawyer practising in Haykashen. The applicant is the father of the late Mr Arbak Nersisyan. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 6 June 2010 Arbak Nersisyan was bitten on the leg by a venomous snake in the garden of their house in Garni and was immediately taken to Garni hospital by his brother. It appears that on that day two nurses and the ambulance driver were on duty in the casualty department of the hospital. At the hospital Arbak Nersisyan was not examined by a doctor. Nurse   L.S. provided first aid. In particular, she made cuts in the area of the snakebite wound, disinfected the wound with peroxide, gave injections in the area of the wound, including a diuretic, and installed a drip with sodium chloride, Dexamethasone and Cardiamin. Shortly after this, on the same day, the applicant took Arbak Nersisyan to St Grigor Lusavorich medical centre in Yerevan. On 13 June 2010 Arbak Nersisyan died in that hospital. On 16 June 2010 the applicant reported to Kotayk Police Division that on 6 June 2010 the medical staff of the Garni hospital had not provided adequate medical assistance to his son after he was bitten by a snake. In particular, no antivenom was injected. On 21 June 2010 a criminal case was initiated under Article 130   § 2 of the Criminal Code on account of medical negligence. On an unspecified date the opinion of a panel of forensic medical experts was received, according to which Arbak Nersisyan had not been provided with the necessary first aid following his admission to Garni hospital. They stated, inter alia , that Arbak Nersisyan had not been examined by a doctor who could determine the degree of severity of the snakebite to provide necessary and adequate medical assistance or to secure his transfer to a specialised medical institution. Moreover, medical treatment had been provided to Arbak Nersisyan by nurses, the injured lower extremity as well as the latter’s body had not been immobilised so as to prevent the spread of the snake venom, no antivenom had been injected at all and no proper medical record had been drawn up. It was further stated that in Garni hospital, cuts in the area of the snakebite wounds had been made, which in such cases is contra-indicated and should not be carried out by a nurse who is not authorised to perform such a medical intervention, especially in the absence of any authorisation by a doctor. The panel of experts concluded that as a result of those omissions and deficiencies, the snake venom had spread relatively faster and more easily, bringing about a number of complications typical in such a case and eventually resulting in death. It was further stated that a nurse, including the emergency nurse, has the right to give an injection of antivenom upon the relevant instruction from a doctor and under the latter’s supervision. The injection can also be made by the doctor. In such a situation, before proceeding with any action, a nurse should call a doctor or consult one. The injection of antivenom is most effective within one hour after the snakebite and its effectiveness is subsequently diminished. On 28 December 2010 nurse L.S. was officially charged with negligent homicide under Article 109 § 1 of the Criminal Code. It appears that at some point in the final stage of the investigation, the applicant complained about the requalification of the offence in respect of L.S. On 17 January 2011 Judge Y.B. of the Kotayk Regional Court took over the case to be examined on the merits. On 19 January 2011 Prosecutor V.H. of the Prosecutor General’s Office informed the applicant that the results of the panel forensic medical examination had shown that nurse L.S. had committed a number of errors while providing first aid to Arbak Nersisyan which had resulted in the snake venom spreading faster and more easily, eventually leading to his death. However, according to the same opinion, the nurse did not have the authority to provide such medical treatment and should have followed instructions issued by a doctor. Taking into account the fact that L.S. had acted alone, without the knowledge of the doctor thus performing actions which she was not authorised to perform and given that Article 130 of the Criminal Code set out criminal responsibility in respect of persons providing medical assistance or service for failure to perform their professional duties properly, the offence committed by L.S. was qualified under Article 109 of the Criminal Code which set out general responsibility for causing death unintentionally. On 31 January 2011 Judge Y.B. decided to return the case to the prosecution. On 10 February 2011 the case was again sent to the court to be examined on the merits. The applicant alleges that the prosecution did not make any modifications to the bill of indictment. By decision of 25 February 2011 the case was set for trial. In the course of the proceedings the applicant submitted a civil claim in the amount of two million Armenian drams (approximately EUR 3,750 at the material time) for pecuniary damage incurred as a result of medical and funeral expenses. At some point during the proceedings the applicant supplemented his civil claim with additional claims for non-pecuniary damages in the amount of six million Armenian drams (approximately EUR   11,250 at the material time). During the trial the applicant testified, inter alia , that in Garni hospital L.S. had informed him that there was no antivenom injection available for his son. G.G., the former head of Garni hospital who no longer worked there at the time of the trial, testified that on Sunday 6 June 2010 he was the doctor on duty and that he was at home. He had been informed of the snakebite only four days after the incident and submitted that L.S. should have contacted him or the two other doctors who lived in Garni village to receive necessary instructions. He further submitted that the antivenom was stored in the refrigerator located in the maternity section and that the medical staff were aware of this. However, no injection could be given without the presence and relevant instruction of a doctor. He admitted that, in this case, the snakebite area should have been immobilised and the patient should have been immediately transferred to the Republican hospital. Regarding the existence of antivenom in the hospital, L.S. submitted that she had not been aware of this and that no instructions had been given as to its storage in the maternity section. E.N., the second nurse who had been on duty on the day of the events, similarly submitted that she had been unaware that antivenom was available in the hospital and that it was stored in the maternity section. According to the pre-trial statement of expert A.H., read in evidence, in the absence of a doctor Arbak Nersisyan’s real condition could not have been correctly assessed. In general he reiterated the conclusions of the panel of experts and submitted that, after having made an assessment of the patient’s condition, the doctor should take a decision as to the necessity of giving an antivenom injection, and its quantity, and only after that could instructions be issued for a nurse to proceed with the injection under a doctor’s supervision, since there can be immediate complications following an antivenom injection. One of the witnesses, S.H., stated before the court that after G.G. was appointed director of Garni hospital the hospital did not function well, he had applied to the Ministry a number of times informing them of deaths occurring in the hospital and that the director was failing in his duties. He further submitted that the hospital did not have any antivenom available and that, from outside conversations, he had been informed that the antivenom had been sold. On 24 June 2011 the Kotayk Regional Court found L.S. guilty as charged and sentenced her to two years’ imprisonment. In doing so, the Regional Court relied on the witness statements, including the pre-trial statement of expert A.H. and the results of forensic examinations. It found, inter alia , that, as the nurse on duty, L.S. did not secure Arbak Nersisyan’s examination by a specialist doctor and, without having the relevant permission, had undertaken several contra-indicated actions which had resulted in negligence causing death. The Regional Court partially granted the applicant’s civil claims as regards medical expenses and costs of funeral services and rejected the applicant’s claims for non-pecuniary damages on the ground that they were not subject to examination in court. At the same time the Regional Court decided to grant amnesty and to release L.S. from serving her sentence. The applicant and L.S. lodged appeals against the judgment of the Regional Court. In his appeal the applicant argued that, instead of being punished for medical negligence under Article 130 of the Criminal Code, L.S. had been found guilty of negligent homicide under Article 109 like any other ordinary person although she was a nurse and therefore a member of the medical profession. He complained in this regard that in the circumstances where the court did not have the power to requalify the charges and had remitted the case to the Prosecutor to eliminate the flaws in the bill of indictment, the case had been returned without any changes. He also argued that the investigation of the case had been flawed and that, apart from other omissions, the deficiencies on the part of the director of Garni hospital were not adequately addressed. The applicant further argued that in a situation where the offence committed by L.S. fully corresponded to the elements of Article 130 § 2 of the Criminal Code, her conviction under Article 109 § 1 could become a precedent whereby cases of gross negligence by doctors or other members of the medical profession would be qualified under this provision. He finally complained about the fact that his claim for non-pecuniary damages was unlawfully not examined by the Regional Court. On 18 August 2011 the Criminal Court of Appeal rejected both appeals and upheld the judgment of the Regional Court. In relation to the applicant’s appeal the Court of Appeal stated that, by decision of 31 January 2011, the Regional Court had remitted the case to the Prosecutor with a view to requalifying the offence committed by L.S. under Article 130 § 2 of the Criminal Code, given that the legal qualification of the offence did not correspond to its description and the evidence. However, the Prosecutor had returned the case with the same legal qualification of the offence on the ground that no procedure for escalating the charges already brought against a person was envisaged under the law in case of remittal of the case to the prosecution under Article 296 of the Code of Criminal Procedure. The applicant lodged an appeal on points of law raising similar arguments. On 3 November 2011 the Court of Cassation declared the applicant’s appeal on points of law 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 130 § 2 provides that failure to perform or improper performance of professional duties by medical and support personnel as a result of negligence or bad faith which has negligently caused the death of the patient undergoing treatment shall be punishable by imprisonment from two to six years, with or without deprivation of the right to hold certain positions or practise certain activities for a maximum of three years. 2.     The Code of Criminal Procedure (in force since 12 January 1999) Article 296 § 1 provides that the judge decides to return the case to the Prosecutor if the bill of indictment does not comply with the requirements of the present code or the legal qualification of the offence does not correspond to the description of the offence or is inconsistent with the evidence in the case. According to Article 309 § 1 the case is examined in the court only in respect of the accused and only within the limits of the charges brought against him. In the course of judicial proceedings the charges can be modified, if that does not complicate the situation of the accused and does not violate the accused’s right of defence. Escalation of charges is allowed only in cases and in the manner provided for by this code (Article 309 § 2). Article 309 1 § 3 provides that the Prosecutor can make modifications to the charges including as regards their escalation before the court retires to the deliberation room, if the evidence examined in the course of judicial proceedings incontestably shows that the accused has committed a different offence than the one he is charged with. COMPLAINTS The applicant complains that the authorities failed to conduct an adequate and effective investigation into his son’s death. QUESTIONS TO THE PARTIES 1.     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 Article 2 of the Convention?   The Government are requested to clarify whether, apart from the criminal proceedings, there were any civil remedies available to the applicant in the domestic legal system and the type of relief they could provide to the applicant. The Government are further requested, if possible, to provide copies of relevant court decisions.   2.     Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 2 of the Convention, as required by Article   13 of the Convention? In particular, was the fact that no compensation for non ‑ pecuniary damage was available to the applicant compatible with the requirements of that Article?   The Government are requested to provide a copy of the decision of the Kotayk Regional Court of 31 January 2011 by which it returned the case to the prosecution.