Violence in school premises
RELEVANT LEGAL FRAMEWORK 40. Article 118 of the Criminal Code provides that beating or other violent actions that have not generated the consequences envisaged by Article 117 (intentional infliction of bodily harm which causes short-term deterioration of health) are punishable by a fine, the maximum amount of which is one hundred times the fixed minimum wage, or a maximum of two months’ detention. 41. Section 22(1) of the Public Education Act of 10 July 2009 provides that, for the purpose of the implementation of the educational programme, the educational institution must ensure, inter alia, safe and secure conditions, normal work routines, medical assistance and the necessary conditions for the physical development and maintenance of the health of the pupils. 42. The Order of 26 December 2009 of the Minister of Education and Science on establishing the model contract for the provision of free schooling services between a State school and the parent of a pupil provides an example of the contract to be signed between State schools and the parents (or legal representatives) of pupils educated in State schools. Part 3 of the model contract sets out the rights and responsibilities of the parties, including those of the school principal. Point 1(8) states that the school principal must ensure the necessary conditions for, inter alia, the maintenance of the pupils’ health. Point 1(9) states that the school principal must secure the life and safety of the pupils by implementing legitimate actions to protect them from any interference with their interests and by taking preventive measures and keeping them away from narcotic substances, explosives, begging, vagrancy and other criminal and unlawful activities. Part 6 provides that the parties bear responsibility under the law for the failure to perform their obligations in relation to, inter alia, securing the life and safety of a pupil. THE LAW ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 43. The applicants complained that Derenik G. had died as a result of the failure of the school’s administration and the teaching staff to properly perform their duty to protect his life and safety while he was under their supervision. They further complained that the authorities had failed to conduct an effective investigation into his death. They relied on Articles 2, 6 and 8 of the Convention. 44. The Court, as master of the characterisation to be given in law to the facts of the case (see, among many other authorities, Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 114, 20 March 2018), considers that it is appropriate to examine the applicant’s complaints solely under Article 2 of the Convention, the relevant part of which reads as follows: “1. Everyone’s right to life shall be protected by law. ...” Admissibility 45. The Court notes that these complaints are neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions 46. The applicants maintained that the State had failed to protect the right to life of Derenik G. The incident had occurred inside the school building and during the time when the children had been entrusted to the school’s supervision. In their view, by leaving the children unattended in the classroom and not ensuring proper medical aid and assistance on the day of the incident, the school’s authorities had failed in their duties to ensure the safety and security of the children while they were under their control. They submitted that it had been the primary duty of the school’s authorities, including S.K. as the form teacher, to ensure the proper supervision of the pupils in order to protect them from any violence to which they might be subjected during the period while they were under their supervision. However, the school’s authorities had failed to properly fulfil that duty. Furthermore, no physician or nurse had been available at the school to provide medical assistance to Derenik G. after the incident. The applicants further maintained that the authorities had failed to conduct an effective investigation into the circumstances of Derenik G.’s death. They argued, inter alia, that the investigation had not been accessible to them. 47. The Government argued that the school’s authorities, including the principal of the school and the form teacher, S.K., had been unaware of Derenik G.’s health issues. In that respect they referred to the second applicant’s statement to the investigator to the effect that she had never drawn the attention of Derenik G.’s teachers to his health (see paragraph 17 above). Hence, they had not known and could not have known of the existence of a real and immediate risk to his life and could not have been expected to take special measures to prevent such a risk. The Government submitted that S.K. had been absent from the classroom for only a few minutes and she could not have supposed that a fight would happen during her absence and that, moreover, such a fight could lead to the pupil’s death on account of his diseases. The Government pointed out that immediately after the incident the teachers and other members of the school personnel had done everything possible to help Derenik G. regain consciousness. When they were unable to do so, they had taken him to the school gates and then to hospital. The Government further argued that the authorities had complied with their obligation to conduct an effective investigation into the circumstances of Derenik G.’s death. They submitted in that connection that the investigation had been prompt, thorough, independent and accessible to the applicants. In particular, the first applicant’s status as the victim’s legal heir in the proceedings had been recognised on 26 July 2010, five days after the criminal proceedings had been initiated. Furthermore, on the day of the incident the police had ordered a forensic medical examination. The investigator had then questioned Derenik G.’s classmates, S.K. and other teachers. Other investigative measures had also been carried out, such as an examination of the scene of the incident and the questioning of witnesses. The Government provided copies of the written statements ( բացատրություն ) of two teachers of the school, dated 12 June 2010 (see paragraph 12 above). The Court’s assessment (a) General principles 48. The basic principles concerning a State’s positive obligation to protect the right to life under Article 2 were set out by the Grand Chamber in Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania ([GC], no. 47848/08, §§ 130-31, ECHR 2014) and most recently in Kurt v. Austria ([GC], no. 62903/15, §§ 157-160, 15 June 2021). 49. The State’s positive obligation under Article 2 has been found to be engaged in the context of public education. Thus, the Court has found that school authorities have an obligation to protect the health and well-being of pupils, in particular young children, who are especially vulnerable and are under their exclusive control (see Ilbeyi Kemaloğlu and Meriye Kemaloğlu v. Turkey, no. 19986/06, § 35, 10 April 2012, and Kayak v. Turkey, no. 60444/08, § 59, 10 July 2012). 50. Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Not every claimed risk to life, therefore, can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For this positive obligation to arise, it must be established that the authorities knew or ought to have known at the relevant time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (the so-called “ Osman test” – see Osman v. the United Kingdom, 28 October 1998, § 116, Reports of Judgments and Decisions 1998 ‑ VIII) (see Kurt, cited above, § 158). Furthermore, the assessment of the nature and level of risk constitutes an integral part of the duty to take preventive operational measures where the presence of a risk so requires. Thus, an examination of the State’s compliance with this duty under Article 2 must comprise an analysis of both the adequacy of the assessment of risk conducted by the domestic authorities and, where a relevant risk triggering the duty to act was or ought to have been identified, the adequacy of the preventive measures taken (ibid., § 159). 51. The Court reiterates in this connection that the choice of means for ensuring the positive obligations under Article 2 is in principle a matter that falls within the Contracting State’s margin of appreciation. There are different avenues to ensure Convention rights, and even if the State has failed to apply one particular measure provided for by domestic law, it may still fulfil its positive duty by other means (see Ilbeyi Kemaloğlu and Meriye Kemaloğlu, cited above, § 37). 52. Furthermore, the Court has considered that the State’s duty to safeguard the right to life also requires, in the event of serious injury or death, to have in place an effective independent judicial system securing the availability of legal means capable of promptly establishing the facts, holding accountable those at fault and providing appropriate redress to the victim. This obligation does not necessarily require the provision of a criminal ‑ law remedy in every case. Where negligence has been shown, for example, the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts. However, Article 2 of the Convention will not be satisfied if the protection afforded by domestic law exists only in theory: above all, it must also operate effectively in practice (see, among other authorities, Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, §§ 132-33). (b) Application of those principles to the present case (i) Alleged failure of the school’s authorities to safeguard Derenik G.’s right to life 53. In the present case, Derenik G., aged 10 at the material time, lost his life in the aftermath of a fight in the classroom during which he was beaten by two of his classmates while the class teacher had left the room (see paragraph 8 above). As was subsequently established, the cause of his 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 (see paragraph 31 above). 54. The Court notes that two forensic medical examinations were ordered to determine the cause of Derenik G.’s death and related issues (see paragraphs 11 and 30 above), both of which confirmed that there had been pathological changes to his internal organs which had possibly progressed during the epileptic seizure and thereafter (see paragraphs 13 and 31). 55. It is not disputed between the parties that the school’s authorities were unaware of Derenik G.’s particular vulnerability due to his health issues. The Court observes in this regard that the parents had sought medical advice following the second instance of Derenik G. having had fainted but he had not been diagnosed as suffering from epileptic seizures and no specific recommendations had been made (see paragraphs 13 and 31 above). In those circumstances, the school authorities had not been requested to pay particular attention to Derenik G. (see paragraph 17 above). 56. The Government argued that, being unaware of Derenik G.’s health problems, the school authorities and staff had not known and could not have known of the existence of a real and immediate risk to his life and could not have been expected to take special measures to prevent such a risk (see paragraph 47 above). 57. The Court reiterates the principle cited above that not every risk to life can entail for the authorities a requirement under the Convention to take operational measures to prevent that risk from materialising (see paragraph 50 above). 58. It is common ground between the parties that the school authorities were unaware of Derenik G.’s particular vulnerability due to his health condition. It is also undisputed that no medical personnel were available in the school on the day of the incident to provide medical assistance to Derenik G. In these circumstances, the questions to be resolved by the Court are the following: firstly, whether the form teacher nevertheless knew or ought to have known that Derenik G. would be exposed to a life-threatening danger during her absence from the classroom which should have prompted her to take the necessary measures to protect his life and, secondly, whether by not ensuring the presence of medical personnel on the school premises on the day of the incident, the domestic authorities failed to take measures which might have avoided a risk to Derenik G.’s life. 59. As regards the first question, in the Court’s opinion, 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. In this connection, the Court reiterates its position expressed in Kayak (cited above, § 60), according to which, while in principle the educational institution is under an obligation to supervise pupils during the period they spend in its care, the members of the teaching staff cannot be expected to ensure the permanent supervision of each pupil in order to respond instantly to any unpredictable behaviour. The Court is fully cognisant of the range of risks to which children may 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 (see, for example, Kayak, cited above). However, there is nothing to suggest that on the day of the incident there existed any factors warranting special attention or measures on the part of the form teacher (compare and contrast Kayak, §§ 61-62, and Ilbeyi Kemaloğlu and Meriye Kemaloğlu, § 41, both cited above) since, as already noted, she was unaware of Derenik G.’s particular vulnerability due to his health condition (see paragraph 55 above). There is likewise nothing to suggest that any incidents of violence among the pupils had previously occurred in Derenik G.’s class. The Court, in these circumstances, considers it 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 of the Convention. 60. As regards the second question, the Court observes that it already concluded that it had not been established in the present case that the school authorities knew or ought to have known at the relevant time of the existence of a real and immediate risk to Derenik G.’s life. There is therefore no call for the Court to assess the second part of the Osman test (see paragraph 50 above), namely whether the school authorities had taken the measures which could reasonably have been expected of them (see Ražnatović v. Montenegro, no. 14742/18, §§ 43-44, 2 September 2021). 61. For these reasons, the Court considers that there are insufficient elements in the evidence before it to conclude that the school’s authorities failed to comply with their obligation under Article 2 of the Convention to provide the requisite standard of protection for Derenik G.’s life. Consequently, there has been no violation of Article 2 of the Convention in its substantive limb. (ii) Alleged ineffectiveness of the judicial response 62. The Court notes at the outset that the applicants have resorted only to criminal-law remedies in connection with Derenik G.’s death. The Court further notes that the Government did not argue that any effective remedies were available to the applicants other than criminal proceedings. The general position in the Court’s case-law is that the form of investigation that will achieve the purposes of Article 2 may vary depending on the circumstances (see Ribcheva and Others v. Bulgaria, nos. 37801/16 and 2 others, § 139, 30 March 2021). The Court considers that, given the circumstances of the present case, an effective criminal investigation was in principle appropriate to satisfy the requirements of Article 2 of the Convention. To be seen as effective such an investigation must display the characteristics of independence, promptness, reasonable expedition, adequacy, thoroughness, objectivity and sufficient involvement of the next of kin (ibid.). 63. The Court observes that on the day of the incident, 5 June 2010, the police ordered a forensic medical examination to determine the cause of Derenik G.’s death (see paragraph 11 above). However, it was not until 21 July 2010 (see paragraph 15 above), a month and a half after the school incident (see paragraphs 6-10 above), that the investigative authorities instituted criminal proceedings. Even then, the criminal proceedings were instituted following the first applicant’s enquiry to the Prosecutor General (see paragraph 14 above), and solely in relation to the beating. In the Court’s opinion, this inevitably narrowed the scope of the investigation, directing it towards the incident of the beating alone without it being required to properly examine the entire chain of events which led to Derenik G.’s death, including the wider issue of the responsibility of the school authorities for the incident. The Court notes in this connection that, although the decisions to terminate the criminal proceedings briefly addressed the issues relating to the possible responsibility of the school authorities, this was done in a rather perfunctory manner and with reference to a simple letter from the Chief of the State Education Inspectorate, a supervisory body acting under the Ministry of Education which is responsible for overseeing compliance by educational establishments with legal provisions in the field of public education (see paragraphs 23, 24 and 32 above). 64. Moreover, there is nothing in the material before the Court to indicate that the investigative authorities collected evidence at the scene and questioned witnesses in a timely manner in order to shed light on the circumstances of Derenik G.’s death. Although the Government argued that the investigator had examined the scene of the incident (see paragraph 47 above), no evidence was produced to support this. Furthermore, the written statements ( բացատրություն ) of the two school staff members (see paragraph 12 above) show that their statements were obtained on 12 June 2010 – one week after the incident. There is likewise nothing to indicate that the investigating authorities carried out any other investigative measures prior to the institution of criminal proceedings. 65. The Court further observes that it was not until Derenik G.’s parents conducted their own private investigation by questioning his classmates that it was revealed that it had been I.H. and V.H. who had beaten him during the fight in the classroom (see paragraph 20 above). Even then, having been provided with the relevant recordings of those statements on 8 October 2010, the investigator asked the State Education Inspectorate to examine the circumstances of the incident almost one month later, on 3 November 2010 (see paragraphs 21 and 22 above). The Court notes in this connection that the investigating authority was subsequently criticised by the Court of Appeal for having referred the matter to the State Education Inspectorate instead of making its own assessment of the actions of the school administration (see paragraph 28 above). Still, the investigation continued with regard to the incident of the beating alone (see paragraph 29 above). As a result, having concluded that I.H. and V.H. were not subject to prosecution, the investigating authority briefly mentioned in the decision of 7 December 2011 that the school administration could not be held liable for the incident since it had been unaware of Derenik G.’s health condition (see paragraph 32 above). 66. However, there is nothing to indicate that the investigating authority ever examined whether the school administration had properly fulfilled its duty to look after the pupils while they were under its supervision and control so as to avoid incidents such as the one during which Derenik G. had been subjected to violence. Neither did the investigation address 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, despite the fact that the Regional Court had twice drawn the investigating authority’s attention to the matter (see paragraphs 27 and 35 above). At the same time, in its decision of 3 April 2012 the Court of Appeal readily accepted the prosecution’s argument submitted in its appeal against the Regional Court’s decision of 22 February 2012 that the school physician had been absent on the day of the incident, having been on duty at another school, without any examination of 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 (see paragraphs 36, 37 and 60 above). In those circumstances, the Court considers that the investigation failed to meet the requirement of thoroughness (see paragraph 62 above). 67. Regard being had to the serious deficiencies and shortcomings discerned above, the Court is of the view that the investigation into the circumstances of the school incident which resulted in the death of Derenik G. fell short of the requirements of Article 2 of the Convention. In view of that conclusion, the Court considers it unnecessary to examine whether the other aspects of the investigation met the requirements of the Convention (see Magnitskiy and Others v. Russia, nos. 32631/09 and 53799/12, § 272, 27 August 2019, and Anahit Mkrtchyan v. Armenia, no. 3673/11, § 101, 7 May 2020). 68. There has accordingly also been a violation of Article 2 of the Convention under its procedural limb. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 69. The applicants complained that they had no effective domestic remedies at their disposal in respect of the alleged breach of Article 2 of the Convention. They relied on Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 70. The applicants initially complained in their application that the domestic authorities had failed to carry out an effective investigation into the circumstances of Derenik G.’s death. In their observations submitted on 12 February 2016 in reply to those of the Government, they complained, with reference to the same provision, that there had been no legal possibility for them under Armenian law to claim compensation for damage in a situation where no one had been found responsible for the death, despite the fact that Derenik G. had died as a result of an incident which had occurred while he was under the control of the school authorities. 71. The Government contested the applicants’ arguments relating to the ineffectiveness of the investigation. As regards the complaint concerning the lack of legal grounds on which to claim compensation, the Government submitted that the applicants had not raised such a complaint in their initial application to the Court. 72. The Court notes that the applicants’ complaint, in so far as it reiterates their complaint that the domestic authorities had failed to carry out an effective investigation into Derenik G.’s death, is linked to the ones examined above and must therefore likewise be declared admissible. 73. Having regard to the findings relating to the procedural aspect of Article 2 of the Convention (see paragraphs 67 and 68 above), the Court considers that it is not necessary to examine whether, in this case, there has also been a violation of Article 13 of the Convention (see, mutatis mutandis, Muradyan v. Armenia, no. 11275/07, § 161, 24 November 2016, and Anahit Mkrtchyan, cited above, § 105). 74. As regards the applicants’ complaint with regard to the lack of legal grounds under Armenian law on which to claim compensation for damage suffered as a result of the death of a family member, having regard to the applicants’ initial submissions in their application (see paragraph 70 above), the Court considers that it amounts to raising a new and distinct complaint under Article 13 of the Convention (see Radomilja and Others, cited above, § 135). While nothing prevents an applicant from raising a new complaint in the course of the proceedings before the Court, such a complaint must, like any other one, comply with the admissibility requirements (ibid.). 75. The Court notes that the domestic proceedings in the present case ended on 8 June 2012 (see paragraph 39 above). However, as noted above, the applicants raised this complaint as late as in their observations of 12 February 2016 (see paragraph 70 above), that is, outside the period of six months from the final domestic decision. 76. Even though no plea of inadmissibility concerning compliance with the six-month rule was made by the Government in their observations (see paragraph 71 above), the Court reiterates that it is not open to it to set aside the application of the six-month rule solely because the Government have not made a preliminary objection to that effect (see, for example, Sabri Güneş v. Turkey [GC], no. 27396/06, §§ 28-31, 29 June 2012). 77. It follows that the applicants’ complaint under Article 13 of the Convention, in so far as it concerns their new argument that it was impossible to claim compensation for Derenik G.’s death which had occurred while he was under the control of the school’s authorities, is inadmissible under Article 35 § 1 of the Convention for non-compliance with the six-month rule and must therefore be rejected pursuant to Article 35 § 4. APPLICATION OF ARTICLE 41 OF THE CONVENTION 78. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 79. The applicants claimed 50,000 euros (EUR) in respect of non ‑ pecuniary damage. 80. The Government contested their claim. 81. Making its assessment on an equitable basis, and in view of the specific circumstances of the case, the Court awards the applicants jointly EUR 24,000 in respect of non-pecuniary damage. Costs and expenses 82. The applicants were granted legal aid by the Court, and they did not seek to be reimbursed for any additional costs or expenses. Consequently, the Court makes no award under this head. Default interest 83. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been no violation of the substantive limb of Article 2 (right to life) of the Convention, finding that there was insufficient evidence to conclude that the school’s authorities had failed to comply with their obligation under that provision to provide the requisite standard of protection for the boy’s life. It held, however, that there had been a violation of the procedural limb of Article 2, finding that the investigation into the boy’s death had fallen short of the requirements of that provision.