CEDH · CASELAW;COMMUNICATEDCASES;ENG — 1 avril 2021

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s6B505E72 { margin:0pt; padding-left:0pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .sAE6FB95D { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s2044A09A { margin-left:6.51pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-weight:normal; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s94E5961 { margin-top:66pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } Published on 19 April 2021   FOURTH SECTION Application no. 38374/20 Arsen MKRTCHYAN against Armenia lodged on 20 August 2020 communicated on 1 April 2021 STATEMENT OF FACTS The applicant, Mr Arsen Mkrtchyan, is an Armenian national who was born in 1977 and is detained in Yerevan. He is represented before the Court by Mr A. Ghazaryan, Mr H. Sargsyan and Ms V. Elbakyan, lawyers practising in Yerevan. The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant’s current state of health According to a medical certificate from Central Prison Hospital issued on 16 June 2020, the applicant suffers from various illnesses, including sepsis, subacute bacterial endocarditis, tricuspid valve regurgitation, second-degree heart failure, mitral and pulmonary valve regurgitation, hypertrophic cardiomyopathy, pulmonary and arterial hypertension, cardiac syncope (fainting), contraction in the skin of the lower extremities, stasis dermatitis in the lower extremities, osteoarthritis in both knees, atrophy (wasting away of the muscle) of the pelvic floor muscles, ankylosis in the right shoulder joint, deforming arthrosis of the shoulder, gallstone disease, urolithiasis, hepatitis C, pedal oedema (foot and ankle swelling), splenomegaly, fatty liver hepatosis, respiratory failure, arthritis, sensorimotor polyneopathy and diffuse goiter (an enlarged thyroid). The applicant’s state of health prior to detention According to the applicant, as early as 2002 he was diagnosed with several serious diseases including sepsis, bacterial endocarditis and tricuspid valve regurgitation. On 3 April 2017 the applicant was issued with a certificate attesting that he had a first-degree disability (the most severe level of disability), owing to his general state of health. On 5 March 2019 the applicant was admitted to Astghik Medical Centre for inpatient treatment. He complained of heartburn, overall weakness, faintness, muscle pain, irregular heartbeat and heaviness near the heart. On 14 March 2019 the applicant underwent a skin graft operation to his legs. On 30 March 2019 the applicant was discharged from the hospital. According to the discharge record, he was suffering from tricuspid valve regurgitation, subacute bacterial endocarditis, cardiomyopathy, hypertrophic cardiomyopathy, pulmonary hypertension (category III-IV), cardiac syncope (fainting), coronary artery disease and hypertension (category I), pedal oedema (foot and ankle swelling) and respiratory failure, fatty liver hepatosis, gout arthritis of the left knee joint, sensorimotor polyneopathy, diffuse goiter (an enlarged thyroid), euthyroid sick syndrome and vitamin D deficiency. It was indicated that the applicant had burn scars on the anterior surfaces of the thighs as the result of the wound healing process. Furthermore, heart surgery was scheduled, once the wounds on his legs had healed. The doctors in charge of the applicant’s treatment prescribed medication and advised supervision by a microsurgeon, rheumatologist, hepatologist, neurologist, endocrinologist and traumatologist. The applicant was also recommended to limit any physical activity and treatment of respiratory insufficiency (oxygenotherapy) at home was advised. In April 2019 the applicant was again admitted to hospital. Upon discharge he was diagnosed with stasis dermatitis on the right leg, trophic leg ulcers, tricuspid valve regurgitation, subacute bacterial endocarditis, hypertrophic cardiomyopathy, arterial hypertension (category I), pulmonary hypertension, cardiac syncope (fainting) and respiratory failure. It was noted that there were positive dynamics in the applicant’s condition, but outpatient observation was advised. The need for supervision by a cardiologist and vascular surgeon was also noted. In May 2019 the applicant was diagnosed with patellofemoral arthritis of the left knee joint. In July 2019 the applicant underwent further examinations which showed gynaecomastia, cardiomegaly, gallstones, peripheral neuropathy, left kidney cyst, lymphadenopathy and pelvic floor dysfunction. He was then diagnosed with , inter alia , gynecomastia, cardiomegaly and neuropathy. Later the same month the applicant underwent additional examinations of his legs, which resulted in his being diagnosed with atrophy (wasting away of the muscle) of the thigh muscles, fasciitis, gangrene, osteoarthritis in both knees and a fibrous cortical defect on the right distal tibia (shin bone). In November 2019 the applicant was twice admitted to hospital in connection with swelling in the legs and redness and wounds on the surface of the thighs. Upon discharge it was recommended that the applicant receive cardiological treatment, elastic compression of the legs, treatment by a vascular surgeon and that bandages be applied on lacerated wounds present on the applicant’s legs. Furthermore, the external examination of the legs had revealed granulation tissue on both thighs. While the applicant’s condition was considered satisfactory, outpatient supervision was recommended. In February 2020 the applicant was admitted to Nairi Medical Centre complaining of shortness of breath and an irregular heartbeat. He underwent a number of medical examinations and was diagnosed with ankylosis (stiffening) in the left knee and muscular contraction in the right knee joint. The applicant’s discharge note dated 24 March 2020 indicated, inter alia , that his overall medical condition was grave. The applicant’s arrest and detention On 21 May 2020 the applicant was arrested and charged under Article   223.2 § 2 (5) of the Criminal Code (creation or management of criminal syndicates). On the same date the Special Investigative Service investigator applied to the Yerevan Court of General Jurisdiction (hereafter, the Yerevan Court) seeking the applicant’s detention on the grounds that, inter alia , there existed a high risk of his absconding, having regard to the nature and gravity of the charge, as well as obstructing the investigation by exerting unlawful influence on those involved in the proceedings. The applicant requested that the unlawfulness of his arrest be recognised and that he be released, considering his state of health. In particular, he submitted that he suffered from a number of illnesses and that his very poor state of health was incompatible with detention. In that connection, the applicant pointed out his first-degree disability status. Furthermore, he stated that he needed urgent heart surgery. The applicant also highlighted the risks associated with the spread of the Covid-19 virus in detention facilities. On 22 May 2020 the Yerevan Court authorised the applicant’s detention for a period of two months, without addressing the applicant’s arguments concerning the incompatibility of detention with his state of health. On the same date the applicant was admitted to Yerevan-Kentron detention facility. On 27 May 2020 the applicant lodged an appeal against the decision of 22 May 2020 arguing, inter alia , that he was seriously ill and that detention was incompatible with his state of health. In particular, he argued that his illnesses were listed in Governmental Decree no. 825-N of 26 May 2006 which sets out grave illnesses impeding the detention of a suspect. On the same date the applicant’s counsel made an application to the Human Rights Defender requesting that he examine the situation regarding the applicant’s health and the authorities’ reluctance to release him from detention. The outcome of that application is unknown. On 10 June 2020 the applicant filed an application with the investigator seeking the assignment of a forensic medical examination by a commission of experts to determine whether his medical condition was compatible with detention. On the same date the applicant applied to the General Prosecutor asking to be released on bail on health grounds. He reiterated his request for a forensic medical examination by a commission of experts. By decision of 12 June 2020 the General Prosecutor refused the applicant’s application, finding that the nature and the dangerousness of the imputed offence and the particular circumstances of the case gave sufficient reasons to believe that the applicant could obstruct the investigation. As regards the applicant’s submissions, according to which detention was incompatible with his state of health, the General Prosecutor stated that a forensic medical examination by a commission of experts was required to determine whether the applicant’s medical condition was in fact incompatible with detention. On an unspecified date the investigator ordered a forensic medical examination to determine the applicant’s state of health and whether it was compatible with detention. On 24 June 2020 the Criminal Court of Appeal (hereafter, the Court of Appeal) upheld the Yerevan Court’s decision of 22 May 2020. As regards the applicant’s complaint that detention was incompatible with his state of health, it held that the applicant would be transferred to a specialist medical institution if required, while a forensic medical examination by a commission of experts had already been ordered to determine his medical condition. On 5 August 2020 the applicant lodged an appeal on points of law with the Court of Cassation. The outcome of this appeal is unknown. It appears that, at some point during the investigation, the investigator made a decision to prohibit the applicant’s visits and telephone calls on the grounds that there was a risk that the accused might hinder the proper conduct of the investigation. On 29 June 2020 the applicant lodged an application with the investigator whereby he sought to be granted a conjugal visit. He argued, in particular, that he required daily care which might be afforded by his family members. On 2 July 2020 the investigator rejected the applicant’s application as unsubstantiated. On 10 July 2020 the investigator applied to the Yerevan Court seeking an extension of the applicant’s detention for a further two months on the same grounds as before. The applicant objected and maintained that his state of health was incompatible with detention. By decision of 20 July 2020 the Yerevan Court granted the investigator’s application, extending the applicant’s detention by two months until 21   September 2020. As to the issue of compatibility of the applicant’s detention with his state of health, the court considered that this could be decided only upon receipt of the results of the forensic medical examination by a commission of experts, which had already been ordered by the investigator. Consequently, if the diseases from which the applicant suffered were included in the list of diseases exonerating from detention, as established by Government decree No. 825-N of 26 May 2006, he would be released immediately. Furthermore, the court held that the investigator had acted with due diligence, since he had informed the supervising prosecutor of the applicant’s serious health condition in due time. The applicant lodged an appeal arguing that his detention was incompatible with his state of health. In substantiation of his appeal, the applicant submitted a number of medical certificates, as well as extracts from his medical history, which stated that in view of his medical condition he needed constant care and specific care arrangements in a specialist medical institution, which could not be ensured in a detention facility. It appears that by decision of 6 August 2020 the Court of Appeal rejected the applicant’s appeal. According to the applicant’s submissions, at the date of lodging the present application he had not yet received the decision of the Court of Appeal. The applicant’s state of health during detention Upon admission to the facility for holding arrested persons on 21 May 2020, a medical record was drawn up which indicated that the applicant suffered from tricuspid valve regurgitation. The presence of erysipelothrix rhusiopathiae bacteria on the applicant’s hands and feet was noted. Moreover, it was observed that the applicant suffered from walking impairment and that he used a walking stick. It was also noted that he needed to undergo surgery for open wounds on his hands. On 22 May 2020, when the applicant was admitted to the detention facility, another medical record was drawn up which indicated that the applicant was suffering from chronic heart failure and ulcers. According to the applicant’s medical file, kept at the detention facility, he constantly complained of pain in the legs which caused difficulties walking. It was noted that, on 1 June 2020, the applicant was examined by a traumatologist and a vascular surgeon at two different specialist clinics who concluded that the applicant’s medical condition required inpatient treatment for his leg ulcers. Treatment and supervision by a microsurgeon were also recommended, for the purposes of scheduling surgery on his left knee joint. According to the medical certificate issued by Nairi Medical Centre on 25 May 2020, the applicant was suffering from sepsis, subacute bacterial endocarditis, tricuspid valve regurgitation (category III-IV), mitral and pulmonary valve regurgitation (category I-II), second-degree heart failure, skin contractures following burn deformities to the lower extremities, stasis dermatitis, osteoarthritis in both knees and muscular atrophy. The presence of erysipelothrix rhusiopathiae bacteria on the applicant’s hands and feet was also noted. It was observed that the applicant required constant medication and supervision by a cardiologist, surgeon, plastic surgeon and a traumatologist. Once the inflammatory condition of the applicant’s legs improved, the question related to the performance of the tricuspid valve replacement surgery was to be discussed. It appears that on 4 June 2020, due to the deterioration of his state of health, the applicant was admitted to Central Prison Hospital. It further appears that on 12 June 2020 the applicant’s counsel sent a set of written questions about the applicant’s state of health and medical treatment to the head of Central Prison Hospital. On 18 June 2020 the head of the therapeutic department of Central Prison Hospital replied that the applicant was under constant supervision by medical staff and that he was receiving appropriate medication. However, abrupt deteriorations in the applicant’s health were frequently observed (respiratory arrest, hemoptysis, acute pain in the chest and abdomen, a sudden increase in blood pressure (hypertension), shortness of breath, swelling in the lower extremities). In that connection, on numerous occasions an ambulance had been called and the applicant had been transferred to a civilian hospital for medical examinations and treatment. Each time, after receiving the relevant medical care, the applicant returned to Central Prison Hospital. It was also noted that the applicant’s medical condition was grave. He therefore needed to undergo a comprehensive medical examination as well as heart and knee surgery. It appears that on 17 June 2020 the applicant was admitted to Nairi Medical Centre for inpatient treatment. Relevant domestic law The Law on Conditions for Holding Arrested and Detained Persons («Ձերբակալված և կալանավորված անձանց պահելու մասին» ՀՀ օրենք) According to Article 13 a detainee has the right, inter alia , to healthcare, including sufficient food and urgent medical assistance. Government Decree no. 825-N of 26 May 2006 approving the procedure for organisation of the health and sanitary care and the preventive healthcare of detained and convicted persons, use of healthcare institutions and involvement of their medical personnel with that purpose (Կալանավորված անձանց և դատապարտյալների բուժսանիտարական և բուժկանխարգելիչ օգնությունը կազմակերպելու, առողջապահական մարմինների բուժական հիմնարկներից օգտվելու և այդ նպատակով դրանց բժշկական անձնակազմին ներգրավելու կարգը հաստատելու մասին) This Decree regulates the procedure for authorising and performing the medical examination of a detainee to determine whether he or she is suffering from a serious illness preventing his or her detention. Annex 2 of this Decree contains a list of such serious illnesses. COMPLAINTS The applicant complains under Article 3 of the Convention that his state of health is incompatible with the conditions of his detention. He further complains under the same provision that his already poor health deteriorated into a severe condition as a result of his detention and due to the absence of adequate medical treatment and care as required by his state of health. QUESTIONS TO THE PARTIES Has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention? In particular:   - Has he been provided with adequate medical assistance in detention, in accordance with his state of health (see Kudła v. Poland [GC], no.   30210/96, §§ 92-94, ECHR 2000‑XI; Blokhin v. Russia [GC], no.   47152/06, §§ 136-37, 23 March 2016)?   - Having regard to the nature and severity of the applicant’s health problems, is the detention itself compatible with his state of health (see Mouisel v. France , no. 67266/01, §§ 38-42, ECHR 2002‑IX; Khudobin v.   Russia , no. 59696/00, § 92, ECHR 2006 XII (extracts); and Dorneanu v.   Romania , no. 55089/13, §§ 75-80, 28 November 2017)?   - Is the applicant adequately assisted by the medical or other personnel of the detention facility?   The Government are requested to provide copies of relevant medical documents with regard to the applicant’s state of health and the medical care provided to him while in detention. They are further requested to provide the results of the forensic medical examination carried out in June 2020 to determine the compatibility of the applicant’s detention with his state of health. The Government are also requested to inform the Court of the manner in which the applicant is assisted in meeting his daily needs (for instance, going to the toilet, bathing, getting dressed, moving within the cell, going for a walk, and so on) and to provide copies of any relevant documents.