Communicated on 20 March 2017
FIRST SECTION
Application no 5213/17
Hovhannes HARUTYUNYAN
against Armenia
lodged on 16 December 2016
STATEMENT OF FACTS
On 26 July 2016 the applicant sustained several gunshot wounds to his right leg as a result of an exchange of gunfire with law-enforcement officers. Shortly after this incident he was taken to a civilian hospital, where several bullet fragments were removed from his leg. He was then arrested and taken to a prison hospital.
On the same day the applicant was charged with a number of criminal offences: taking over a police station with an organised armed group, and taking hostages and demanding the release of certain prisoners.
On the same day, following an application by an investigator, the Kentron and Nork-Marash District Court of Yerevan (“the District Court”) decided to detain the applicant for a period of two months. The District Court referred to the nature and seriousness of the charges against the applicant, and concluded that, if at large, he could obstruct the investigation by exerting unlawful influence on the people involved in the criminal proceedings, and by concealing or falsifying material significant for the case.
The applicant appealed against that decision.
On 10 August 2016 the Criminal Court of Appeal rejected the applicant’s appeal and upheld the District Court’s decision.
The applicant lodged an appeal on points of law against that decision.
On 24 August 2016 the applicant underwent an X-ray examination, and doctors recommended that surgery be performed after he recovered from his injuries.
On 20 September 2016, on the basis of the applicant’s medical file, a doctor from the Netherlands hired by the applicant provided a written opinion on his treatment. The Dutch doctor stated, in particular, that in such situations surgery was almost always needed for long-term results, as it would maximise a joint’s stability and minimise the risk of arthritis. The doctor recommended rehabilitation and treatment with antibacterial medication to prevent infection. Lastly, she also recommended additional radiological examination of the applicant’s injured leg.
On 8 November 2016 the applicant was examined in a civilian hospital.
On 9 November 2016 the doctors examining him concluded that no surgery was required. They also concluded that the muscles of his leg had atrophied due to immobilisation, and that intensive rehabilitation treatment of the quadriceps muscle, treatment of the symptoms and, if necessary, elimination of the pain, was necessary. The applicant’s lawyer alleges that the doctors refused to provide her with the documents containing the relevant medical examinations, conclusions and X-ray images.
On 10 November 2016 the applicant’s lawyer filed a request with the administration of the prison hospital, seeking that they either provide the X‑ray images of the applicant’s leg or allow her to take a picture of that image, with a view to obtaining an independent alternative medical opinion on the state of the applicant’s leg and the need for surgery and treatment.
On 21 November 2016 the head of the prison hospital responded that there was only one copy of the requested X-ray image, and that the description of the original image had already been provided to the applicant’s lawyer, while the original was being kept in the relevant medical unit. The head of the hospital also mentioned that prison rules prohibited the taking of photos in the facility.
On 13 December 2016 the applicant’s lawyer filed a letter with the Ombudsman, requesting that he visit the applicant and ensure his transfer to a civilian hospital for treatment.
On 16 December 2016 the applicant’s lawyer lodged a request under Rule 39 of the Rules of Court, arguing that the applicant had been deprived of adequate medical care throughout his detention, and seeking that he be provided with such care in a civilian hospital. She made the following submissions as regards the medical assistance provided to the applicant and his conditions of detention:
- the applicant’s wounds required surgery, which had not been carried out;
- during the applicant’s transfer to the prison hospital on 26 July 2016, his wounded leg had not been held in a fixed position as required, which had caused him severe physical pain;
- the applicant was not receiving any medical assistance and was kept alone in a cell not meeting even minimal medical standards, in unsanitary conditions: dirty walls, cockroaches running over his wounds, the presence of rubbish and other insects in the cell;
- there was a lack of fresh air in the applicant’s cell, as the administration did not allow the small window in the cell to be opened;
- the applicant was only able to have a shower if another prisoner helped him;
- painkillers were not given to the applicant promptly;
- the applicant’s bed in the prison hospital was unsuitable, given his injuries.
On 30 December 2016 the applicant was transferred to Nubarashen detention facility from the prison hospital.
On 17 January 2017 the applicant’s lawyer visited him and found out that he had been placed in an isolation (punishment) cell for a three-day period, where there was nothing to sit or sleep on.
On 19 January 2017 the applicant’s lawyer visited him again. She submits that the applicant was still in the isolation cell, where there was no heating and it was freezing. He had not eaten for several days, was in severe pain, had not had a shower for a long period of time, and had no clean clothes. According to the lawyer, as the applicant was unable to walk, he had to urinate in a plastic bottle in the cell. Allegedly, his urine contained blood. The lawyer submitted a written request to the administration of the facility, asking it to ensure the applicant’s medical care. She alleges that later that day the applicant’s condition deteriorated and she again requested medical assistance for him. The facility’s administration responded that the medical personnel had finished work and had left the facility.
On 21 January 2017 the lawyer visited the applicant again. She alleges that his injured leg was thin and had changed colour.
On 2 February 2017 the Court decided to adjourn the examination of the applicant’s request under Rule 39 and ask the Government for factual information.
On 15 February 2017 the Government submitted factual information. In particular, as regards the applicant’s state of health at that time and in relation to his injured leg, the Government submitted that the applicant had been examined by various doctors, who had concluded that the quadriceps muscle of his injured leg had atrophied. The doctors had prescribed inpatient exercise therapy. The Government also stated that the applicant had been visited by representatives of the Department for the Prevention of Torture and Ill-treatment of the Ombudsman’s Office, who had established that there was no documented evidence in the applicant’s medical file to indicate the need for surgery on his leg or treatment in a civilian hospital. The Government also submitted that the applicant had generally refused to comply with medical instructions during the whole period of his detention, which had contributed to the deterioration of his state of health.
The applicant’s medical files from the prison hospital and the Nubarashen detention facility filed by the Government, which were partly illegible, show that on various days the applicant was visited by doctors who made notes in his medical file stating that he was under close observation. Some of the notes show that the applicant complained of pain and high temperature, while others show that he had no complaints.
On 2 March 2017 the applicant’s lawyer filed her observations in reply. In particular, as regards his state of health, she stated that the conditions of the applicant’s detention had been incompatible with his injuries from the start of his detention. The close observation mentioned in his medical file was of a perfunctory and formal nature. Most of the notes made by the prison doctors in the file did not contain information about the applicant’s leg, but referred to his blood pressure and temperature. Painkillers prescribed by the doctors were not given to the applicant.
On 23 February 2017 the applicant asked the detention facility’s management to allow doctors hired abroad to visit and examine him.
On 28 February and 1, 2, 8 and 10 March 2017 the Dutch doctor hired by the applicant visited him at the Nubarashen detention facility. On 2 March 2017 that doctor provided written observations on the Government’s submissions of 15 February 2017 about the state of the applicant’s health, and made general recommendations about necessary examinations and treatment. She stated, in particular, that there was no information about whether or not the applicant had been advised how to do exercises, or whether there were adequate conditions in the facility for him to do exercises himself correctly, with a view to targeting the correct group of muscles. She also concluded that various additional examinations were necessary, as previous examinations, such as X-ray images, were outdated.
In March 2017 a physical therapist hired by the applicant in the United States of America was denied access to the applicant to assess his state of health and rehabilitation needs. The authorities expressed doubts about the therapist’s qualifications and motives for visiting the applicant.
On 10 March 2017 the Dutch doctor produced written observations stating that:
- On 28 February 2017 serous fluid discharge from a small opening on the anterior portion of the applicant’s right leg below the knee had been observed;
- The applicant was complaining of pain in his right leg, right knee joint and right kidney area, discomfort and pain during urination, retention of urine, and interrupted urination. The skin on the affected leg was still a different colour. The upper thigh had been measured for evidence of atrophy, and there was a 1.4 cm difference in diameter between the right thigh and the left thigh.
- Assessment by a physical therapist of the applicant’s rehabilitation needs and possibilities in the facility was required.
COMPLAINTS
1. The applicant complains that the conditions of his detention and the lack of adequate medical assistance in detention are incompatible with the requirements of Article 3 of the Convention.
2. The applicant complains under Article 5 § 3 of the Convention that the courts failed to provide relevant and sufficient reasons for his detention
QUESTIONs
1. Has the applicant been subjected to treatment contrary to Article 3 of the Convention? In particular, is he receiving the requisite medical care in detention, as required by that Article? Are the conditions of the applicant’s detention compatible with the requirements of that Article?
2. Did the courts provide “relevant and sufficient” reasons for the applicant’s detention, as required by Article 5 § 3 of the Convention (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 84 et seq., 5 July 2016, and Ara Harutyunyan v. Armenia, no. 629/11, §§ 48 et seq., 20 October 2016)?
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