By: Rachel H Sanders
Journal of Global Rights and Organizations, Senior Articles Editor
STRASBOURG, France – Armenia was found guilty of right-to-life violations under Article 2 of the European Convention on Human Rights for the 2009 death of an Armenian national conscript. This decision was the result of a protracted legal fight after the complainant brought a case for his son, 22-year-old Ashot Malkhasyan who was found to have been put unjustifiably in danger through compulsory military service leading to his death.
The unjustifiable danger was predicated by Malkhasyan’s diagnoses of: (i) cardial incompetence; (ii) reflux oesophagitis; (iii) laceration of the mucous membrane of the cardia; (iv) Mallory-Weiss syndrome; (v) superficial gastritis and established bleeding; (vi) hiatal hernia; and (vii) Gilbert’s syndrome. Despite numerous submissions of Malkhasyan’s medical records, each highlighting the severity of these diseases, the Arabkir military commissar, A.U., initially refused to allow Malkhasyan a thorough medical examination. In fact, the A.U. stated that Malkhasyan would be found fit for conscription even with an exam.
This A.U.’s assertion was proven true when the Erebuni Medical Centre delivered its final diagnosis of gastrointestinal motility disorders induced by psychological stress; a diagnosis which did not acknowledge any of the previous diagnoses nor the results of medical tests carried out that week by the center. Additionally, the A.U. ordered the removal of several documents from Malkhasyan’s medical records. The day after this diagnosis, Malkhasyan was sent to military service with no recourse. As a result, after approximately ten days, on July 5th, 2009, Malkhasyan died from his diseases which were later reconfirmed at autopsy.
Malkhasyan’s father brought a claim post-mortem to the European Court of Human Rights (hereafter “the Court”) after the charges he had filed against the Head of the Conscript Assembly Point Medical Commission and two members of the Central Medical Commission were dismissed as being time-barred effectively ending all criminal proceedings into the matter. An initial investigation ordered by the Minister of Defense found that, had the A.U. and the Central Medical Commission properly examined Malkhasyan’s medical records, he would not have been found fit for conscription. Despite this, as of July 2014, the investigator had discontinued all proceedings forcing the applicant to submit multiple complaints as well as appeals to the Armenian courts. It took until June 2015 for the Court of Cassation to issue an order quashing the decision to terminate the case, which resumed in in November 2015. However, by July 2017, the investigator fully ended all proceedings without indictments despite finding that the A.U. had overstepped his public authority.
The complainant submitted the case to the Court claiming violations of Articles 2 (right to life) and 13 (right to an effective remedy). The Court held that military authorities and medical professionals involved in Malkhasyan’s conscription disregarded his medical history which led to the decision that he was fit for military service. Additionally, the Court found that the lengthy and ineffective eight-year investigation did not satisfy the procedural obligation imposed by Article 2. The Court concluded that Armenia violated both the substantive and procedural limbs of Article 2 of the Convention and required the country to pay the applicant 35,000 euros (EUR) in non-pecuniary damages and EUR 2,500 in costs and expenses.
For further information, please see:
ECHR – Military authorities put conscript’s life in danger by finding him fit to perform military service despite serious health issues – 11 Nov. 2022
