CEDH · CASELAW;COMMUNICATEDCASES;ENG — 1 avril 2025

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } Published on 22 April 2025   FIFTH SECTION Application no. 43565/21 Anzhelika MOSIYAN against Armenia lodged on 7 August 2021 communicated on 1 April 2025 SUBJECT MATTER OF THE CASE The applicant is the mother of S. Mosiyan, who died at the age of 19 during his compulsory military service as a result of a pre-existing cardiovascular disease. In March 2015 S. Mosiyan underwent mandatory medical examinations with a view to determining whether he was fit for military service. An electrocardiogram performed on 4 March 2015 in a local policlinic showed “sinus arrhythmia, tachycardia (110 beats per minute), right ventricular hypertrophy”. In July 2015 S. Mosiyan was found fit for military service and drafted into the Armenian army. He was assigned to a military unit in the “Republic of Nagorno-Karabakh” (the “NKR”). Further to the state of alert issued on 2 April 2016 (the first day of the military clashes in early April 2016 (sometimes referred to as the “Four-Day War”)), S.   Mosiyan was put on military duty at the control centre of the artillery unit. Between 9.30 and 10 p.m. on 29 May 2016, while on duty there, S. Mosiyan’s health drastically declined. He died on the way to the military hospital. On 31   May 2016 the Second Garrison Investigative Division of the Military Investigations Principal Department of the Investigative Committee of Armenia (Hadrut, Nagorno-Karabakh) instituted criminal proceedings into the matter. The autopsy carried out during the investigation found that the cause of S. Mosiyan’s death had been acute heart failure, pulmonary edema (buildup of fluid in the lungs) linked to idiopathic cardiomyopathy, moderate cardiosclerosis, endocardial fibrosis, cardiac steatosis (excess pericardial fat), hepatosplenomegaly (enlargement of liver and spleen), microvascular dysfunction of inner organs, grave cardiac atrophy, which had existed while he was still alive. A number of light bodily injuries were also discovered on the body, mainly on the face, which were found not to be linked to the death. It was also established that during his military service S. Mosiyan had been hospitalised twice  for the first time from 7 to 12 November with an initial diagnosis of “enuresis” (urinary incontinence) and for the second time from 5 to 9 December 2015 with an initial diagnosis of “acute respiratory disease”. In August 2017 S.T., a cardiologist, was charged with aggravated official negligence (Article 315 § 2 of the former Criminal Code (in force from 1   August 2003 until 1 July 2022)) for having failed to send S. Mosiyan for further medical examinations and issuing a conclusion, on the basis of her own (inaccurate) examination of him, that he was fit for military service. According to the description of the charges, S.T. had been a member of the local conscription commission as an expert-cardiologist during S. Mosiyan’s conscription and had failed to carry out her official duties properly which had negligently caused his death. More than 2 years after the trial had started, the prosecution motioned to drop the charges against S.T. on the grounds that the latter had not acted as an “official” for the purposes of Article 315 § 2 of the former Criminal Code since she had only been a member of the medical commission of the military commissariat as opposed to the local conscription commission, which had the ultimate authority to make a final decision to draft on the basis of the conclusion (whether or not the person was fit for military service) issued by the former commission. By its judgment of 20 April 2020 the Ararat and Vayots-Dzor Regional Court (“the Regional Court”) acquitted S.T. The applicant was unsuccessful in her appeals against that judgment (final decision in this set of proceedings was taken by the Court of Cassation on 21 February 2021). In the meantime, in June 2019 another set of criminal proceedings was instituted in relation to S. Mosiyan’s death. Within the framework of those proceedings, in April 2020 A.G. (an expert-cardiologist who had been a member of the local conscription commission) was charged with official negligence under Article 315 § 2 of the former Criminal Code for having found S. Mosiyan fit for military service by having failed to properly examine the results of the latter’s medical examinations and send him for more detailed medical checks by relevant specialists. By its decision of 23 May 2022 the Regional Court granted A.G.’s application to discontinue his prosecution for having become time-barred and terminated his prosecution. Further to the applicant’s appeals against that decision, the Court of Appeal upheld it while the Court of Cassation refused to grant her leave for appeal. The applicant complains under Article 2 of the Convention that the domestic authorities failed to comply with their positive obligation to protect her son’s right to life as a result of their failure to identify (in a timely manner) that he suffered from a medical condition incompatible with military service. She complains under the same provision that the domestic authorities failed to conduct an effective investigation into the matter. She argues that the investigation was unreasonably lengthy, failed to hold those responsible to account and that she had no possibility to claim compensation. QUESTIONS TO THE PARTIES 1.     Having regard to the applicant’s arguments raised in her domestic appeals and currently before the Court, did the domestic authorities comply with their obligation to protect S. Mosiyan’s right to life, ensured by Article   2 of the Convention?   2.     Having regard to the procedural protection of the right to life, was the investigation by the domestic authorities in the present case in breach of the guarantees of Article 2 of the Convention, including, among others, the requirement of reasonable expedition?   3.     Did the applicant have at her disposal an effective domestic remedy for her complaint under Article 2 of the Convention, as required by Article 13 of the Convention? In particular, was there available to her a legal mechanism to claim compensation for non ‑ pecuniary damage flowing from the breach of her son’s rights under Article 2 of the Convention?