The ECHR Recorded a Violation of the Conventional Right by the case Botoyan v. Armenia

The European Court of Human Right (herein referred as the ECHR) confirmed the violation of Article 8 of the European Convention on Human Rights and Fundamental Freedoms (Convention) by the decision adopted on February 8 of 2022.

In 2008, the Applicant underwent a foot surgery through installment of metal implant, which was carried out inappropriately and led to the disability of the Applicant.

The Application was filed to the ECHR back in 2016 on the ground that the state failed to provide relevant medical services to the patients and on the ground that the lack of medical care and treatment of the applicant led to deterioration of health conditions of the patient causing disability. Moreover, the Applicant did not properly inform about the process of the providing medical care and its possible risks. By the application filed to the ECHR, an issue whether there are relevant mechanisms in the Republic of Armenia enabling compensation of damage was raised.

Having examined the submitted application, the ECHR recorded, that there is an issue of the violation of the conventional rights of the Applicant. The Court also recorded that the states have positive obligations in terms of defining regulatory grounds for defining effective medical services.

The ECHR, accepting the presented facts and circumstance, considered that the surgeries carried out in Artik medical center were performed by a specialist, who did not have relevant specialization of performing the given surgery; moreover, the installed metal implant was not acquired officially.

The ECHR also confirmed that the facts presented by the Applicant on the appropriateness of the provided medical care were serious circumstances. Similarly, the lack of compensation for the damage caused in the outcomes of the surgery was also problematic.

The Court stated, that the Republic of Armenia legislative regulations were sufficient for informed consent, however, according to the findings of the Court, the concrete issues raised by the Applicant about his/her informed consent were not made a subject for proper investigation during the examination of the criminal cases making the later inefficient.

At the same time, the Court made a reference to other protection means for medical error available in the Republic of Armenia firstly mentioning that the possibility for compensation of moral damage, disciplinary sanctioning against doctor, as well as the possibility to appeal the consultation of the RA Ministry of Healthcare, which were reviewed by the RA Government, are inefficient and inapplicable.

Therefore, the ECHR confirmed, that the above mentioned led to the violation of Applicant’s right to private and family life under Article 8 of the Convention.

Araks Melkonyan, the President of the Protection of Rights without Border NGO, Haykuhi Harutyunyan and Ani Aghagulyan, previous lawyers of the Organizaiton, represented the interests of M. Botoyan at the European Court of Human Rights.