MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1501/H46-2

13 June 2024

1501st meeting, 11-13 June 2024 (DH) Human rights   H46-2 Ashot Harutyunyan group v. Armenia (Application No. 34334/04) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2023)888, DH-DD(2023)1454, DH-DD(2024)447,CM/Del/Dec(2021)1406/H46-1

 

Application	Case	Judgment of	Final on	Indicator for the classification
34334/04	ASHOT HARUTYUNYAN	15/06/2010	15/09/2010	Complex problem
44765/08+	JHANGIRYAN	18/05/2021	18/05/2021
54547/16	SHIRKHANYAN	22/02/2022	22/05/2022
623/13	VOSKANYAN	24/01/2023	24/01/2023

·  Co-operation project: VC 2400 – Enhancing health care and human rights protection in prisons in Armenia (2019-2022) ·  Co-operation project: VC 3136 – Strengthening the protection of the rights of persons in detention (2023-2024)

Case description

This group of cases concerns mainly the lack of adequate medical treatment and care during detention in the period between 2003 and 2018, which in one case resulted in the death of the applicant’s relative, as well as the lack of effective remedies in this respect (violations of Articles 2, 3 and 13).^[1] 

The Jhangiryan case also concerns the lack of timely and proper medical assistance for the applicant’s ballistic injury while in police custody, lack of adequate conditions for detention in Central Prison Hospital and for transfer to the trial court corresponding to the applicant’s special health needs, as well as the applicant’s participation in the trial despite his poor health condition (violations of Article 3). The Shirkhanyan case also concerns the prolonged refusal of private meetings with his representatives before the Court (violation of Article 34)[2].

Status of execution

The Committee of Ministers last examined this group of cases at its 1406^th meeting (June 2021) (DH).

During its previous examinations, the Committee considered that the question of individual measures had been resolved.

As regards general measures, the Committee:

·         noted with interest the start of the operation of the Centre for Penitentiary Medicine and strongly encouraged the authorities to continue their efforts to ensure the Centre’s effective functioning,

·         welcomed further amendments to the sub-legislation, aimed notably at the approximation of the system of penitentiary medical care to the civilian one, as well as improvement of the policies and procedures for referral of detainees to civilian medical institutions and requested the authorities to provide specific information on the actual impact of these measures,

·         invited the authorities to submit information on the progress in introduction of the new mechanisms for improving medication supply for the prison healthcare system, on the draft amendments foreseeing the revision of the remedies for complaints concerning access to appropriate health care and on the application of the compensatory remedy.

Three new cases have been added to the group after the examination of the group in June 2021. The authorities submitted an action plan on individual measures in the case of Voskanyan on 26 July 2023 (see DH-DD(2023)888), an updated group action plan on 23 November 2023 (see DH-DD(2023)1454), as well as additional information on individual and general measures on 19 April 2024 (see DH-DD(2024)447). They can be summarised as follows: 

Individual measures:

Concerning the individual measures in the cases recently added to this group, in the Jhangiryan case, the applicant did not apply for the reopening of the criminal proceedings on the use of excessive force by the police within the period prescribed by law. At the same time, the General Prosecutor’s Office, after a re-examination of the case materials, decided not to apply for the reopening ex officio considering that an efficient investigation has no prospects at this stage in view of the fact that 13 years have passed since the events. Thus, the authorities invited the Committee to close the supervision of this case.

Considering that the applicant in the Shirkhanyan case did not apply for the reopening of the domestic proceedings within the period prescribed by law, the authorities invited the Committee to close its supervision.

In the Voskanyan case, at the prosecutor’s request, on 1 September 2023 the Court of Cassation reopened the judicial proceedings into the death of Mr Voskanyan.

The just satisfaction awarded by the Court was paid within the time limit in all cases.

General measures:

a)     Reform of and improvements to the prison healthcare

In April 2023 the Centre for Penitentiary Medicine (the Centre) was transferred from the responsibility of the Ministry of Justice to the Ministry of Health. This transfer aimed at securing the institutional independence of prison healthcare and its full integration into the national healthcare system. In 2024 the Centre was provided access to the ArMed general medical e-system. Medical units in prisons will be also gradually provided access to this e-system. Continuous renovation works are being carried out in the prison medical units. First, it is planned to fully renovate and equip the Armavir unit, for which 90 million Armenian drams (about EUR 212,264) were allocated in addition to the yearly budget.

b)     Budgetary allocations, healthcare staff and supply of medication 

The authorities presented information on the budgetary claims and the sums allocated for the Centre in the period between 2018 and 2020[3], which were based on the quantitative index and detainees’ needs. Taking into account a considerable drop in prison population in recent years, the resources needed for medicines and medical supplies diminished. Thus, as of 1 January 2018, 3,536 persons were held in penitentiaries, while on 1 January 2023 this number dropped to 1,408 persons. After the transfer of the prison medical system to the Ministry of Health, the budgetary allocations were maintained at the same level in 2023 and 2024.

As of September 2023, 194 vacancies in the Centre were filled and only four positions remained vacant. The authorities provided extensive information on professional training of the middle and senior medical staff of the Centre starting from 2020.

The acquisition of medicines is done through public procurement based on requests received from 12 units of the Centre. When necessary, medicines must be received urgently, the Centre may apply the mechanism of urgent procurement. The authorities submitted that there is no shortage in medication supply.

c)     Medical assistance and treatment

With the assistance of the CoE projects “Enhancing health care and human rights protection in prisons in Armenia” and “Strengthening the protection of the rights of persons in detention”, the authorities introduced telemedicine into the penitentiary healthcare. This new system will reduce the risk of delays in providing medical assistance and will cover for the possible shortage of specialists.

Regarding the initial medical screening and regular and comprehensive medical check-ups, the authorities noted that upon entering a penitentiary institution, a detainee undergoes a primary medical examination, rapid screening test and a psychiatrist’s consultation. Once a year detainees undergo preventive screening and twice a year screening for tuberculosis.

Implementation of improved procedures for referral of detainees to civil medical institutions ensures timely transfers to specialised medical institutions. Detainees are attached to nearby medical facilities and the necessary medical care is provided in specialised medical institutions or multi-profile hospitals. In 2022, 3,431 detainees were transferred to civilian medical institutions. Out of them 2,393 were transferred with a referral from a prison doctor and 1,038 transferred at their own expense.

d)     Medical assistance to persons detained in police establishments (Jhangiryan case)

Medical assistance by ambulance paramedics is provided to apprehended persons with bodily injuries at the Police Holding Facilities. If necessary, the apprehended person is transferred to a civilian medical institution․

e)     Participation in court hearings and conditions of transportation in case of health issues (Jhangiryan case)

The new Criminal Procedure Code provides that criminal proceedings can be suspended in case the accused is suffering from a severe illness and cannot participate in the proceedings for a lengthy period of time. In such cases, the court adopts a decision on postponing the hearing for a reasonable time, taking into consideration the circumstances hindering the continuation of the proceedings and the nature of the measures taken to eliminate them. Furthermore, the Code prescribes a special procedure for questioning by video conferencing, including in cases when the presence of the person in court is not possible on health grounds.

The National Human Rights Strategy and its Action Plan for 2023-2025 aim at improving conditions of transportation of detainees, including persons with disabilities. Some 10 special vehicles were recently acquired, which allow stretcher transportation of one to four detainees. Procurement of 22 vehicles is envisaged for the second half of 2024. In the meantime, when the person needs special equipment for transportation due to health conditions, the transfer is carried out by an ambulance.

f)      Detention in case of health issues (Voskanyan and Jhangiryan cases)

In 2017 the list of diseases preventing detention on remand and execution of imprisonment sentence was aligned with the International Classification of Diseases. Subsequently, in 2021 further amendments were introduced transforming the exhaustive list into guidelines, which now allows the medical commission to issue a conclusion based on the person’s health situation that prevents him from serving the detention or punishment chosen.

g)     Preventive and compensatory remedies

As regards the preventive remedy, the authorities submitted that the new Penitentiary Code which entered into force on 1 July 2022 establishes a procedure for contesting actions, omissions or decisions of penitentiary administration. Complaints are examined by a court in the shortest possible time, but no later than 10 days after it was launched (with a 10-day extension possibility), considering the urgency of each complaint and the vulnerability of persons deprived of liberty.

Complaints related to the adequacy of healthcare in prisons can be lodged with the Centre’s Head, the Minister of Health or the court. Some 370 complaints were lodged to the Head of the Centre in 2021 and 430 in 2022. The authorities presented examples of domestic courts’ case-law when applying preventive remedy which, however, are not related to healthcare issues.

As regards the compensatory remedy, the authorities carried out an examination of the domestic judicial practice for the period between 2019 and 2023 regarding the application of provisions of the Civil Code on compensatory remedy for non-pecuniary damage. The study revealed that out of 50 claims only four were rejected. In 23 cases the compensation awarded ranged from 1 to 2 million Armenian drams (about EUR 2,290 – 4,580) and in one case the award amounted to 10 million Armenian drams (about EUR 22,910). A case concerned alleged violations of Article 3 of the Convention, in which the court awarded 2 million Armenian drams for non-pecuniary damage stating that conditions of detention amounted to inhuman treatment.

h)     Private meetings with the representatives before the Court (violation of Article 34)

The new Penitentiary Code establishes the right of lawyers to freely meet their clients in prisons or detention facilities without requiring special permission for access. The meetings are confidential. Detainees can request meetings with their lawyers without limitations on frequency or duration including non-working days and holidays, as well as through online platforms. The authorities submitted that there have been no complaints regarding access of lawyers to prisons in recent years and that no such cases have been communicated by the Court.

Communication under Rule 9:

On 9 January 2023 the Human Rights Defender of Armenia submitted a communication related to the Shirkhanyan case raising issues regarding general measures, in particular organisation of medical examinations, the necessary medical assistance in prisons and provision of care to detainees with mobility impairments, including bathing and outdoor exercise. The authorities replied on 25 January 2023, recalling a range of measures adopted in response to the mentioned shortcomings and noting that the communication made rather general remarks concerning the penitentiary system not specifying the period of time to which the observations referred (see DH-DD(2023)103-rev).

Analysis of the Secretariat

Individual measures:

Recalling that the question of individual measures has already been resolved in the case of Ashot Harutyunyan[4] and noting the important progress achieved on general measures (see below), the Committee might wish to close the examination of this case and to pursue the examination of the outstanding questions regarding individual and general measures within the framework of the Shirkhanyan group.

Considering that in the cases of Jhangiryan and Shirkhanyan the applicants were released from detention,[5] as well as noting that they did not apply for the reopening of domestic proceedings, no other individual measures appear necessary.

As regards the Voskanyan cases, the Committee might wish to invite the authorities to rapidly complete the pending investigation and inform the Committee on its progress and outcome.

General measures:

I.              Reform of the prison healthcare system and overall situation

At the outset, it should be recalled that during its previous examinations the Committee has already noted a range of important reforms undertaken by the authorities to address the deficiencies in the penitentiary healthcare system. These included the establishment of the Centre for Penitentiary Medicine, measures adopted to meet its staffing needs, strengthening quality control of healthcare in prisons and its approximation to the system of the civil healthcare.

The progress made has continued through a number of further recent changes, notably the transfer of the prison healthcare to the responsibility of the Ministry of Health which was welcomed by the CPT in its preliminary observations on the visit to Armenia in September 2023. This measure appears capable of ensuring the professional independence of medical staff working in prisons and further integration of the prison healthcare into the national healthcare system. Regular training for medical staff, improvement of access to specialised civil medical institutions and to primary health care in prisons, regular screenings, the introduction of the telemedicine and increasing number of detainees which receive medical assistance in civil medical institutions are noted with interest.

However, it should be noted that a number of challenges remain. Thus, as noted by the CPT following the transfer of the prison healthcare under the Ministry of Health, some important issues concern:

·         professional status and salaries of health-care staff,

·         rights of access to and movement within prisons,

·         ensuring confidentiality of medical consultations,

·         securing convoys for outside consultations and hospitalisations.^[6]

Similar organisational issues were highlighted in the annual report of the Human Rights Defender of Armenia as National Preventive Mechanism of 2023.^[7] Thus, the authorities are invited to inform the Committee on the measures taken to tackle these problems and keep it updated on the functioning of the Centre.

Further, in its latest annual report, the Human Rights Defender noted that:

·         the staffing issue continued in 2023,^[8]

·         a number of complaints were lodged regarding the insufficient amount and limited range of medicines available, the procurement of medicines is time consuming and can take up to a month,^[9]

·         some medical units are supplied with equipment and instruments which are mostly not used due to the lack of the necessary materials or working conditions,^[10] and

·         the number of vehicles and accompanying penitentiary officers to transfer detainees to medical institutions was not sufficient.[11]

Some of these findings by the Human Rights Defender were confirmed by the CPT, which noted in particular problems with the supply of some of the prescribed medication, poor equipment for health-care units and limited access to specialists such as dentists, psychiatrists and clinical psychologists.^[12]

Thus, the authorities should be strongly encouraged to continue with further improvements in the penitentiary healthcare system, including by providing for systemic and needs-based professional development of the medical staff, allocating sufficient budget for the Centre’s needs, providing adequate staffing, as well as necessary equipment and medication for it. Updated information is awaited on these issues, as well as on the measures adopted to ensure medical care during detention (requisite assistance in performing daily tasks, maintaining personal hygiene and outdoor exercise), as well as the lack of basic facilities in Central Prison Hospital.[13] 

II.            Medical assistance to persons detained in police establishments

In view of the information provided and given that the relevant events in the Jhangiryan case date back to 2008, that this issue is not raised neither in recent cases communicated by the European Court nor by the CPT and the Human Rights Defender, the Committee might wish to close the examination of this aspect with the understanding that the issues related to medical examinations in police custody as a safeguard against ill-treatment are examined in the Virabyan group.

III.           Detention, participation in court hearings and conditions of transportation in case of health issues

Adoption of a non-exhaustive list of serious diseases, which can serve as ground for release from detention, is noted with interest. Information is awaited on the applicable procedures and deadlines for consideration of such requests.

The legislative measures allowing the criminal proceedings to be suspended and the possibility of questioning by video conferencing in case the accused is suffering from a severe illness seem sufficient to address the issues raised by the Court in the Jhangiryan case. Therefore, this aspect can be closed.

While noting with interest the procurement of 10 vehicles for transportation of detainees with special needs, updated information is awaited on further measures adopted.

IV.         Preventive and compensatory remedies

It is recalled that in the case of Shirkhanyan, the Court noted that no example of domestic case-law was provided in which compensation for non-pecuniary damage was awarded with respect to complaints concerning lack of adequate medical treatment and quality of care for seriously-ill detainees.^[14] The examples of judicial practice on the application of preventive remedy provided by the authorities are not related to healthcare in prisons. The authorities presented only one example of the domestic case-law in which the court awarded non-pecuniary damage for an Article 3 violation (for inadequate conditions of detention). These examples are not sufficient to assess the effectiveness of the remedy. Therefore, the authorities are invited to provide statistical data on the number of complaints regarding medical assistance in prisons (both to administrative bodies and courts) and examples of judicial practice in the application of preventive and compensatory remedies in such cases.

V.          Private meetings with the representatives before the Court (violation of Article 34)

The right to unlimited and confidential meetings with an advocate enshrined in the new Penitentiary Code, as well as absence of complaints in this regard is noted with interest. However, given that the violation of Article 34 in the Shirkhanyan case concerned specifically refusal for private meetings with the applicant’s lawyers before the Court, including the one which was not licensed in Armenia,^[15] clarifications are awaited on whether the current legislation and practice allows private visits to a detainee on the part of a lawyer representing him before the Court, including if this lawyer is not licensed in Armenia.

VI.           Overall conclusion

Given the significant measures taken and progress achieved so far on general measures, it is proposed to close the precedent case of Ashot Harutyunyan and continue the examination of the remaining individual and general measures in the framework of the Shirkhanyan group. At the same time, the authorities are strongly encouraged to continue their efforts to address fully the remaining concerns, invited to keep the Committee informed on further progress and submit updated information specified above.

Financing assured: YES