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(1 of 1) CASE OF VOSKANYAN v. ARMENIA
623/13 | Judgment (Merits and Just Satisfaction) | Court (Fourth Section
Committee) | 24/01/2023
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FOURTH SECTION

CASE OF VOSKANYAN v. ARMENIA

(Application no. 623/13)

JUDGMENT

STRASBOURG

24 January 2023

This judgment is final but it may be subject to editorial revision.

In the case of Voskanyan v. Armenia,

The European Court of Human Rights (Fourth Section), sitting as a Committee
composed of:

Anja Seibert-Fohr, President,
Armen Harutyunyan,
Ana Maria Guerra Martins, judges,
and Valentin Nicolescu, Acting Deputy Section Registrar,

Having regard to:

the application (no. 623/13) 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”) on 20 December 2012 by an Armenian
national, Ms Shushanik Voskanyan, born in 1982 and living in Vanadzor (“the
applicant”) who was represented by Mr K. Tumanyan, a lawyer practising in
Vanadzor;

the decision to give notice of the complaints concerning the death of the
applicant’s husband to the Armenian Government (“the Government”), represented
by their Agent, Mr G. Kostanyan, and subsequently by Mr Y. Kirakosyan,
Representative of the Republic of Armenia on International Legal Matters and to
declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 13 December 2022,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1. On 7 October 2010 the applicant’s husband, S. Voskanyan, was arrested on
suspicion of murder and armed assault. He was then placed in pre‑trial detention
in Vanadzor Detention Facility.

2. On 18 October 2010 S. Voskanyan complained of pain, swelling and hyperaemia
in the left shin stating that he had injected saliva under the skin. Doctor M.
of the detention facility medical unit examined him and prescribed treatment by
medication (antibiotics, analgesics) and bandaging.

3. The next day Doctor M. recorded that crepitation was observed upon palpation
and brown pus with an unpleasant smell (around 10-15 ml) was drained as a result
of an incision (debridement). Doctor M. put a bandage recording that the
previous bandage was missing.

4. On 20 October 2010 Doctor M. noted the same complaints and that there was
brown pus discharge from the wound which had been cleaned and bandaged.

5. On 21 October 2010 Doctor N. of the detention facility medical unit reported
to the chief of the facility about abundant blood and pus discharge from the
wound. That had been cleaned and a sterile bandage was put but, according to the
doctor, those actions were insufficient. Acute pain prompted the doctor to
believe that the infected area was likely to spread. To avoid further
complications, the doctor requested instructions.

6. On the same date a surgeon from a civilian hospital, Doctor A., was invited.
The record of that visit states the following: “I agree with the treatment”.

7. S. Voskanyan, who was still complaining of pain in the left shin and overall
weakness, continued receiving the same treatment on 22 and 23 October 2010.
Medical records mention brown pus discharge from the wound.

8. On 24 October 2010 S. Voskanyan, who was already unable to move without
assistance, was taken by his two cellmates to the medical unit of the detention
facility because of the sharp deterioration of his health. It was decided to
transfer to the Central Prison Hospital for an urgent surgery. He died on the
same day in the detention facility.

9. On the same date the investigator took statements from Doctor M. and S.
Voskanyan’s cellmates, conducted an examination of the scene, the body, seized
his personal and medical files and assigned an autopsy.

10. In his statement Doctor M. submitted that he had reported orally on the
detainee’s medical condition to his superiors, asking for hospital transfer for
in-patient treatment, to no avail.

11. According to the autopsy report of 13 December 2010 S. Voskanyan’s death
had been caused by general intoxication of the body because of necrosis of the
dermis, hypodermis and underlying tissues of the left lower extremity surface
area as a result of an infected wound on the left shin with tissue erosion from
the foot to the upper thigh.

12. On 30 December 2010 criminal proceedings were instituted against Doctor M.
on account of medical negligence.

13. According to the report issued by a panel of forensic medical experts on 31
March 2011, S. Voskanyan’s diagnosis was mainly incorrect; only an infected
wound on the left shin was diagnosed in the event where, already on 19 October
2010, crepitation attested to the existence of a more serious pathology, gas
gangrene. At that point the doctor was obliged to transfer the patient to
hospital. If, starting from that day, S. Voskanyan had received treatment
targeted at the anaerobic infection, transferred to hospital speedily and
received relevant/conservative and surgical treatment, it would have been
possible to prevent the negative outcome.

14. After the applicant joined the proceedings in April 2011, in June 2011 the
investigator assigned an additional forensic medical examination by a panel of
experts on the grounds that there were discrepancies between the expert reports
with regard to the presence of ethyl alcohol in the blood and urine samples.
According to the ensuing expert report, no certain conclusion could be drawn on
the issue of alcohol intoxication. The report continued that it could not be
definitely stated whether it would have been possible to save S. Voskanyan’s
life had he received full, targeted out-patient or in-patient treatment. In case
of such a grave infection even in-patient treatment could sometimes be
ineffective, especially when the patient had regularly pulled the bandage, which
had worsened the infection. In order to prevent the illness and improve the
healing process it was necessary to transfer the patient to hospital since the
necessary treatment was mainly of a surgical nature.

15. On 30 August 2011 the investigator decided to terminate the criminal
proceedings and stop Doctor M.’s prosecution for absence of corpus delicti. The
relevant decision stated, inter alia, that the infected wound had been caused
and aggravated by self-harm and there was no sufficient evidence substantiating
that S. Voskanyan had died because of Doctor M.’s failure to carry out his
professional duties properly.

16. The Regional Court and the Criminal Court of Appeal rejected applicant’s
appeals against that decision stating that her rights were not breached. Her
further appeal was dismissed in the final instance on 22 June 2012 by the Court
of Cassation.

17. Relying on Article 2 of the Convention, the applicant complained that her
husband had died as a result of the failure of the domestic authorities to
provide him proper and timely medical care and that they failed to conduct an
effective investigation into the matter.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

18. The Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other
grounds. It must therefore be declared admissible.

19. The applicable general principles concerning the State’s responsibility for
the death of a detainee as a result of a health problem and the obligation to
conduct an effective investigation thereto have been summarised in the Court’s
judgments in Slimani v. France (no. 57671/00, §§ 27 and 29-30, ECHR 2004-IX
(extracts)), and Makharadze and Sikharulidze v. Georgia (no. 35254/07, §§ 71-73,
22 November 2011).

20. Since 7 October 2010 until his death on 24 October 2010 S. Voskanyan was in
detention and, accordingly, under the control of the Armenian authorities. It is
not disputed between the parties that the infection which led to his death
resulted from his self-injection of saliva under the skin. Regardless,
considering that S. Voskanyan was under the control of the domestic authorities
at the time, the Court is called to examine whether the authorities did
everything reasonably possible, in good faith and in a timely manner, to try to
avert the fatal outcome (see Makharadze and Sikharulidze, cited above, § 74).

21. According to S. Voskanyan’s medical file, he requested medical assistance
for the first time on 18 October 2010 (see paragraph 2 above). However, it was
not until 24 October 2010 that a decision was reached to transfer him to
hospital but it was already too late to save his life (see paragraph 8 above).

22. It appears from the medical records that on 21 October 2010 Doctor N.
alerted the administration of the detention facility about S. Voskanyan’s
worsening state of health and that the same day a surgeon, Doctor A., was
invited from a civilian hospital (see paragraphs 5 and 6 above). However, in
contrast to the other medical notes in S. Voskanyan’s medical file, which
contain a detailed account of the complaints, objective examination and
prescribed treatment, the record concerning Doctor A.’s visit contains no such
description whatsoever which raises doubts as to whether he actually examined S.
Voskanyan during that visit. Such doubts are reinforced by the fact that it was
subsequently established by all forensic experts that the required treatment was
mainly of surgical nature and transfer to the hospital should have appeared as a
necessity even to a general practitioner given S. Voskanyan’s clinical situation
(see paragraphs 13 and 14 above), therefore even more so to a surgeon. It cannot
therefore be considered that the absence of S. Voskanyan’s transfer to hospital
in view of necessary surgical treatment was compensated by this visit arranged
by the administration in the detention facility (contrast, mutatis mutandis,
Goginashvili v. Georgia, no. 47729/08, § 76, 4 October 2011).

23. It was established during the investigation that already on 19 October 2010
there were apparent signs of a more serious pathology, gas gangrene, which
called for an urgent hospitalisation in order to treat the infection, which
would have made possible to prevent the negative outcome of the illness (see
paragraph 13 above).

24. Although a further expert report indicated that it could not be definitely
stated whether it would have been possible to save S. Voskanyan’s life had he
received the required treatment, the second expert panel equally found that S.
Voskanyan’s medical condition had required hospitalisation and surgical
treatment (see paragraph 14 above). In any event, the validity of the report of
the previous expert panel as regards its findings concerning the adequacy of S.
Voskanyan’s treatment while in detention was never questioned. In fact, the
reason for assigning an additional forensic examination was merely to clarify
the discrepancies with regard to the presence of ethyl alcohol in the samples
taken from the deceased’s body (see paragraphs 11, 13 and 14 above).

25. While the Court takes due note of the Government’s argument, relying in
part on the second expert panel’s opinion, that S. Voskanyan’s self-harm
behaviour and inappropriate wound hygiene may have contributed to the
unpredicted progression of the infection and inefficiency of the treatment
provided, it does not find those circumstances to be decisive for the core issue
of the present case for the following reasons. From the first days when the
infected wound was reported, the prison authorities were made aware in substance
of those aspects (see paragraph 3 in fine above). Furthermore and more
importantly, it appears from the expert reports and the relevant medical records
that as from 19 October 2010 and the following days, S. Voskanyan’s poor
clinical condition should have left no doubts as to the necessity of his
immediate hospitalisation because of a serious and fast-spreading infection, gas
gangrene, which did not respond to the treatment provided. In that respect, the
autopsy report speaks for itself as to the particularly wide-spread and
noticeable infection and tissue damage (see paragraph 11 above).

26. Taking into account the expert panels’ unanimous opinion about the
defective medical treatment administered to S. Voskanyan, the Court considers
that the prison authorities should have been aware of the risk that a delayed
hospital transfer presented to his life in the context of an unmanageable
infection of such extent. The object of the Court’s examination being whether or
not the domestic authorities fulfilled their duty to safeguard the life of the
applicant’s husband by providing him with proper medical treatment in a timely
manner, the foregoing considerations enable the Court to conclude that the
domestic authorities’ behaviour towards a critically ill detainee amounted to a
violation of the State’s obligation to protect the lives of persons in custody
(see Mustafayev v. Azerbaijan, no. 47095/09, §§ 62 in fine and 66, 4 May 2017,
and contrast, Geppa v. Russia, no. 8532/06, § 83, 3 February 2011 where there
was no forensic evidence to show that a positive outcome of a detainee’s illness
depended on timely diagnosis and treatment).

27. It follows that the respondent State failed to protect S. Voskanyan’s life
while in detention.

28. There has accordingly been a violation of Article 2 of the Convention in
its substantive limb.

29. As regards the investigation conducted by the domestic authorities, the
Court notes that the authorities undertook a number of investigative steps in
the aftermath of S. Voskanyan’s death (see paragraph 9 above).

30. However, despite concrete forensic medical evidence suggesting that the
fatal outcome of S. Voskanyan’s illness could have been prevented had he
received adequate treatment and transferred to hospital in time, the
investigation did not go beyond the question of Doctor M.’s individual criminal
responsibility failing to examine the reason why the transfer was not organised
earlier and to identify those responsible especially in the light of Doctor M.’s
statements that he had reported about S. Voskanyan’s alarming state of health to
the administration of the detention facility and his superiors (see paragraphs
10, 13 and 15 above).

31. The Court therefore considers that the investigation’s conclusions were not
based on a thorough and objective analysis of all relevant elements (see
Muradyan v. Armenia, no. 11275/07, § 135, 24 November 2016, and Nana Muradyan v.
Armenia, no. 69517/11, § 126, 5 April 2022). As a result, the investigation
failed to shed full light on all the circumstances surrounding S. Voskanyan’s
death, thereby failing to bring those responsible to account (see, mutatis
mutandis, Tarariyeva v. Russia, no. 4353/03, § 103, ECHR 2006-XV (extracts)).

32. The Court therefore finds that the authorities failed to carry out an
adequate and thorough investigation into S. Voskanyan’s death. It is thus
unnecessary to examine the other aspects of the investigation (see, mutatis
mutandis, Anahit Mkrtchyan v. Armenia, no. 3673/11, § 101, 7 May 2020).

33. Accordingly, there has been a violation of Article 2 of the Convention in
its procedural limb.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

34. The applicant claimed 8,000 euros (EUR) in respect of pecuniary damage,
which constituted the expenses borne by her alone after the death of her husband
to raise their four children. She further claimed EUR 50,000 in respect of
non-pecuniary damage and EUR 4,620 euros in respect of costs and expenses
incurred before the domestic courts before the Court.

35. The Government contested these claims.

36. The applicant failed to submit any evidence to support her claims in
respect of pecuniary damage. Furthermore, S. Voskanyan was under detention in
relation to serious charges. Therefore, the applicant’s claim under this head is
moreover of a speculative nature and the Court rejects it. At the same time, the
Court awards the applicant EUR 20,000 in respect of non‑pecuniary damage, plus
any tax that may be chargeable to her.

37. Regard being had to its case-law and to the lack of proper substantiation
in the documents in its possession, the Court rejects the claim for costs and
expenses.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;
2. Holds that there has been a violation of Article 2 of the Convention in its
substantive and procedural limbs;
3. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR
20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect
of non-pecuniary damage, to be converted into the currency of the respondent
State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal to the
marginal lending rate of the European Central Bank during the default period
plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 24 January 2023, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.

Valentin Nicolescu Anja Seibert-Fohr
Acting Deputy Registrar President

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https://www.gov.uk/government/world-location-news/the-european-human-rights-database-for-south-east-europe

Netherlands
https://www.government.nl/ministries/ministry-of-justice-and-security

https://njcm.nl/

http://europeancourts.blogspot.fr

North Macedonia
http://biroescp.gov.mk/en/en.html

https://www.gov.uk/government/world-location-news/the-european-human-rights-database-for-south-east-europe

Norway
http://www.lovdata.no/avg/emdn/index.html

Poland
http://www.ms.gov.pl/

http://bip.ms.gov.pl/pl/prawa-czlowieka/europejski-trybunal-praw-czlowieka/orzecznictwo-europejskiego-trybunalu-praw-czlowieka/

http://www.nsa.gov.pl/orzecznictwo-etpc.php

http://trybunal.gov.pl/publikacje/orzeczenia-etpcz/

http://pk.gov.pl/wyroki-etpcz-wobec-innych-panstw-stron/wyroki-etpcz-wobec-innych-panstw-stron.html

http://www.msz.gov.pl/pl/polityka_zagraniczna/europejski_trybunal_praw_czlowieka/wybrane_orzeczenia_eptcz/orzeczenia_inne_panstwa/tlumaczenia_wyrokow_europejskiego_trybunalu_praw_czlowieka_na_jezyk_polski

Portugal
http://direitoshumanos.gddc.pt/4/IVPAG4_3_3_3.htm

Romania
http://www.scj.ro/

http://www.csm1909.ro/PageDetails.aspx?PageId=275&FolderId=3659

http://ier.gov.ro/

Russia
http://www.coe.ru/00sud-cases.htm

http://www.srji.org/resources/search/

https://www.mdx.ac.uk/our-research/centres/ehrac

http://sutyajnik.ru/rus/echr/school/judg_v_all.html

http://jpr-pechr.ru/

http://pytkam.net/v-pomosch-postradvshemu.reshenija-evropeyskogo-suda-po-pravam-cheloveka

http://www.mmdc.ru/praktika_evropejskogo_suda/novoe_v_praktike_evrosuda/

http://genproc.gov.ru/documents/espch/

http://precedent.in.ua/index.php?organ=1&r=1.11.1

http://www.ip-centre.ru/modules.php?name=News&new_topic=2

http://www.refworld.org.ru/

http://minjust.ru/ru/ECJ/precedent

http://www.echr.ru/

Serbia
http://www.coe.int/fr/web/belgrade

http://www.bgcentar.org.rs/

http://www.zastupnik.mpravde.gov.rs/

https://www.gov.uk/government/world-location-news/the-european-human-rights-database-for-south-east-europe

https://e-case.eakademija.com/

Slovakia
http://www.radaeuropy.sk/?43

http://www.justice.gov.sk

Slovenia
http://www.dp-rs.si

http://www2.gov.si/dp-rs/escp.nsf

http://www.sodisce.si/vsrs/

Spain
http://www.icam.es/

http://www.mjusticia.gob.es/cs/Satellite/es/1288776153228/EstructuraOrganica.html

Sweden
https://www.domstol.se/

Switzerland
http://www.bger.ch/index/juridiction/jurisdiction-inherit-template/jurisdiction-recht/jurisdiction-recht-leitentscheide1954.htm

http://www.skmr.ch/de/aktuell/newsletter/index.html

Türkiye
http://www.yargitay.gov.tr

http://www.barobirlik.org.tr

http://www.ankarabarosu.org.tr

http://insanhaklari.gen.tr

http://insanhaklarimerkezi.bilgi.edu.tr/

http://www.inhak.adalet.gov.tr/

Ukraine
https://zakon5.rada.gov.ua/laws

http://www.khpg.org/index.php?r=1.3.5

http://precedent.in.ua/index.php?organ=1&r=1.11.1

https://minjust.gov.ua/cat_9329

http://helsinki.org.ua/index.php?r=a1b8

http://kmp.ua/uk/category/documents/echr-translations/

https://www.echr.com.ua/category_translation/case-law/

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