Last Updated on November 30, 2021 by LawEuro
Information Note on the Court’s case-law 256
November 2021
Derenik Mkrtchyan and Gayane Mkrtchyan v. Armenia – 69736/12
Judgment 30.11.2021 [Section IV]
Article 2
Positive obligations
Article 2-1
Life
State school, unaware of pupil’s health vulnerability, not responsible for his death following unexpected beating, in teacher’s absence, by classmates with no record of violence: no violation
Effective investigation
State school, unaware of pupil’s health vulnerability, not responsible for his death following unexpected beating, in teacher’s absence, by classmates with no record of violence: violation
Facts – The applicants are the grandfather and the mother of Derenik G., who died at the age of 10 following a fight at a State school during which he was beaten by two of his classmates when the class teacher had left the room. No medical personnel had been present at the school on the day of the incident. The applicants complained that Derenik G. had died as a result of the failure of the school’s authorities to properly perform their duty to protect his life while he was under their supervision and that the domestic authorities had failed to carry out an effective investigation into his death.
Law – Article 2
(a) Substantive limb – The cause of Derenik G.’s death had been the development of acute respiratory failure and cardiac function disorder because of an epileptic seizure possibly linked to the beating and to his psychological and emotional state. It had not been disputed that the school’s authorities had been unaware of Derenik G.’s particular vulnerability due to his health issues, namely syncope (fainting). However, he had not been diagnosed as suffering from epileptic seizures and no specific recommendations had been made. In those circumstances, the school authorities had not been requested to pay particular attention to Derenik G.
Given the above, the first question to be answered was whether, under the first part of the Osman test, the form teacher nevertheless had known or ought to have known that Derenik G. would have been exposed to a life-threatening danger during her absence from the classroom which should have prompted her to have taken the necessary measures to protect his life. A particular degree of vulnerability would need to be demonstrated in order to impose on the teacher a stringent requirement not to leave the classroom at any time and under any circumstances. While in principle the educational institution was under an obligation to supervise pupils during the period they spent in its care, the members of the teaching staff could not be expected to ensure the permanent supervision of each pupil in order to respond instantly to any unpredictable behaviour. The Court was fully cognisant of the range of risks to which children might be exposed and the paramount duty of school authorities to take supervisory measures to ensure the security of pupils and protect them from all forms of violence to which they might be subjected while under their supervision. However, there was nothing to suggest that (i) on the day of the incident any factors had existed warranting special attention or measures on the part of the form teacher as she had been unaware of Derenik G.’s particular vulnerability due to his health condition; and (ii) any incidents of violence among the pupils had previously occurred in his class. In view of this, it was difficult to maintain that, by merely leaving the classroom, the form teacher could be said to have compromised Derenik G.’s safety, thereby engaging the responsibility of the school’s authorities under Article 2.
As it had not been established that the school authorities had known or ought to have known at the relevant time of the existence of a real and immediate risk to Derenik G.’s life, there was no call for the Court to assess the second part of the Osman test, namely whether the school authorities had taken the measures which could reasonably have been expected of them.
Consequently, there was insufficient evidence to conclude that the school’s authorities had failed to comply with their obligation under Article 2 to provide the requisite standard of protection for Derenik G.’s life.
Conclusion: no violation (five votes to two)
(b) Procedural limb – There had been serious shortcomings and delays in the investigation into the circumstances of the school incident which had resulted in Derenik G.’s death. The questioning of witnesses, collection of evidence and institution of criminal proceedings had not been done in a timely manner and there had been omissions at the very initial stages, prior to the institution of the criminal proceedings. There had also been a lack of thoroughness. In particular, the criminal proceedings had been limited solely to the beating, inevitably narrowing the scope of the investigation to this issue only. The investigation had failed to properly examine the entire chain of events leading to Derenik G.’s death, including the wider issue of the responsibility of the school authorities for the incident. This remained so despite the investigating authority having been provided with statements from Derenik G.’s classmates – which had been taken in the context of the parents’ own private investigation – revealing who had beaten him. Although the school authorities’ possible responsibility had been addressed in the decisions terminating the criminal proceedings, this had been done in a rather perfunctory manner. Nor had the investigation examined the issue of medical assistance in the school on the day of the incident, including whether the death could have been prevented had medical assistance been provided or the type and the time frame for such assistance, in spite of the fact that the Regional Court had twice drawn the investigating authority’s attention to the matter. The Court of Appeal had also failed to examine whether or not the unavailability of medical assistance on the day of the incident had had the effect of compromising Derenik G.’s health condition.
The investigation had thus fallen short of the requirements of Article 2.
Conclusion: violation (unanimously)
The Court also held, unanimously, that there was no need to examine the complaint under Article 13 in conjunction with Article 2 (procedural aspect).
Article 41: EUR 24,000 to the applicants jointly in respect of non-pecuniary damage.
(See also Osman v. the United Kingdom [GC], 23452/94, 28 October 1998, Legal Summary; Kayak v. Turkey, 60444/08, 10 July 2012, Legal Summary)
Leave a Reply