Information Note on the Court’s case-law 234
November 2019
Abdyusheva and Others v. Russia - 62964/10, 58502/11 and 55683/13
Judgment 26.11.2019 [Section III]
Article 8
Article 8-1
Respect for private life
Inability for opioid addicts to obtain methadone or buprenorphine replacement therapy: no violation
Facts – The applicants, opioid addicts, complained about the lack of access to replacement therapy with methadone or buprenorphine. Russian legislation prohibits the use of these two substances in the treatment of drug addiction.
Law – Article 8
(1) Ms Abdyusheva – Taking into account, firstly, the risks of replacement therapy for public health and, secondly, the individual situation of the applicant, who was in receipt of medical assistance, the Court reached the conclusion that the authorities had not overstepped their margin of appreciation. In this connection, it was of little importance whether the case was examined in terms of an interference or in terms of the State’s positive obligations (see also, with regard to a request for access to unauthorised medication, Hristozov and Others v. Bulgaria, 47039/11 and 358/12, 13 November 2012, Information note 157).
(a) On the necessity of replacement treatment for the applicant – The Court was faced in this case with diverging medical opinions, and it was not its role to arbitrate between them:
– on the one hand, Ukrainian experts had given a positive response to the query whether her case met the criteria for putting in place replacement therapy, as previously begun by the applicant;
– on the other hand, Russian experts had considered that replacement therapy was not indicated, given that the patient had not exhausted the conventional treatment options that were available in Russia, in particular the rehabilitation and social reintegration phases.
It remained the case, however, that the country’s medical institutions had solid expertise in this area and provided treatment for opioid addicts. The applicant could have recourse to this if necessary. Her case was to be examined by specialists, who alone were competent to prescribe appropriate treatment.
Moreover, the applicant had not exhausted all of the conventional treatment methods; those methods were still available to her (in contrast to the case of Hristozov and Others, where conventional anti-cancer treatments had already been attempted).
(b) On the wish to be allowed to bypass the steps recommended by conventional medicine – The Court rejected, one by one, the arguments set out below.
(i) Other applicable international instruments – The applicant party did not refer to any legally binding instrument which would unequivocally oblige Russia to introduce a drug-addiction treatment using methadone or buprenorphine.
(ii) Preventing the spread of HIV – The desired treatment would not be capable of preventing infection of the applicant, who already carried the virus. It was not part of the Court’s role to assess its effectiveness for other patients.
(iii) Existence of a European consensus – The fact that numerous States authorised opioid-addiction therapy with methadone and buprenorphine was not a decisive factor. In the Wenner v. Germany judgment (62303/13, 1 September 2016, Information note 199), the Court had noted that, although widely used in the member States of the Council of Europe, the requested replacement therapy remained the subject of controversy.
It transpired from the parties’ observations and the supporting data that the existence of health risks – in particular, the risk of new addiction and of poly-drug use, entailing a high mortality risk – could not be ruled out as an ill-founded allegation. Those risks were also substantiated, indirectly, by the case of the applicant in the Wenner judgment. The purported advantages of the use of replacement products were thus likely to be reduced significantly.
Faced with those risks, the authorities were thus justified in introducing measures, occasionally as drastic as the prohibition of certain opioid products, in order to minimise the real or potential damage. At the very least, the weight attached to the public interest in protecting the population’s health fell within their margin of appreciation (see Hristozov and Others, concerning access to certain medicines for terminally ill patients; this example was all the more valid in the case of the applicant, who was not at the end of her life).
(iv) Possibility of replacing the prohibition by a simple regulation, accompanied by training and awareness-raising campaigns – In the area of public health, the national authorities were to be left a wide margin of appreciation. The Russian authorities were better placed than the Court to define the policy to be implemented in a sensitive area such as the fight against drug trafficking, regulation of the drugs market and medical treatment for opioid addicts. Mindful of the subsidiary nature of its role, the Court could not dictate to them the manner in which this problem was to be resolved, or rule on whether the possible concurrent use of several types of opioid product could realistically be detected by checks.
Furthermore, Russian law did not provide medical treatment against a patient’s will or despite their wishes: they were free to interrupt treatment and to refuse medical follow-up by the drug clinics at any point. To oblige patients to be monitored by doctors, or to investigate compliance with the eligibility requirements for the relevant programme, would amount to infringing the personal autonomy that the applicant was seeking to protect through her application to the Court.
(v) Comparative effectiveness of the treatments – It was not the Court’s role to take the place of health professionals and to assess the effectiveness of methods for treating addiction. In the present case, conventional medical assistance based on scientific developments was available to the applicant in Russian medical institutions.
Conclusion: no violation (six votes to one).
(2) Other applicants – Urine tests had indicated that the two other applicants were in remission; in the absence of an explanation from them of this inconsistency, their need for replacement therapy has therefore not been proved.
Conclusion: inadmissible (manifestly ill-founded).
The Court also dismissed, unanimously, the complaints alleging interference with the right of individual petition (Article 34). It also declared inadmissible (as manifestly ill-founded) the complaints submitted by the applicants under Article 14 taken together with Article 8, and under Article 3, taken alone or with Article 14.
(In addition to the above-cited judgments in Wenner and Hristozov and Others, see also A.M. and A.K. v. Hungary (dec.), 21320/15 and 35837/15, 4 April 2017, concerning the therapeutic use of cannabis; and Durisotto v. Italy (dec.), 62804/13, 6 May 2014, concerning a therapeutic method based on the use of stem cells)
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This summary by the Registry does not bind the Court.
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