Communicated on 7 July 2020 Published on 27 July 2020

FIRST SECTION

Application no. 43/19 Samvel MAYRAPETYAN against Armenia lodged on 2 January 2019

STATEMENT OF FACTS

The applicant, Mr Samvel Mayrapetyan, is an Armenian national who was born in 1959 and lives in Yerevan. He is represented before the Court by Mr A. Ghazaryan , a lawyer practising in Yerevan, and Ms M. Baghdasaryan , a non-practising lawyer .

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is a well-known businessman, the owner and director of an Armenian television channel. He suffers from, inter alia , chronic pancreatitis. At the time when the applicant lodged his application with the Court, his condition had deteriorated into acute pancreatitis.

On 9 November 2016 the applicant, being in a critical state, was admitted to Yerevan State Medical University Clinic (Yerevan University Clinic) suffering from acute abdomen, pancreatitis and toxic shock. Following a number of examinations, including ultrasound, X-ray and a CT scan, the applicant underwent an urgent operation.

The applicant then experienced post-operative complications. In particular, on the third day after the operation, he suffered respiratory failure as a result of which he was put in a medically-induced coma and put on a ventilator. Having discussed the state of the applicant ’ s health, a panel of medical specialists, including invited specialists from Russia and Germany, decided that the applicant should continue his treatment in Germany.

On 15 November 2016 the applicant was discharged from Yerevan University Clinic. He was transferred to University Clinic Carl Gustav Carus in Dresden (Dresden University Clinic) by a special airplane, where he received inpatient treatment, including in the Intensive Care Unit, for sepsis and acute necrotising pancreatitis with multiple pancreatic abscesses until 17 March 2017.

The applicant then continued outpatient treatment at Dresden University clinic. He returned to Armenia in May 2017 and received a two-month course of rehabilitative treatment for the muscles and neuromuscular system.

According to the statement of doctor M., the applicant ’ s treating doctor at Yerevan University Clinic, the applicant was registered for follow-up treatment in the gastroenterological department of Dresden University Clinic where he received regular check-ups every six months.

On 1 October 2018 the Special Investigative Service of Armenia (the SIS) instituted criminal proceedings in relation to bribery involving several former high-ranking public officials, allegedly committed in 2008.

On 6 October 2018 the applicant was arrested on suspicion of having assisted the relevant former officials in bribe-taking. The applicant noted in the record of his arrest that he had serious health issues which required a specific diet and treatment.

On 8 October the applicant was charged with aiding and abetting bribe-taking. On the same date the investigator applied to the Yerevan Court of General Jurisdiction (the Yerevan Court) seeking the applicant ’ s detention on the grounds, inter alia , that there existed a high risk of his absconding, tampering with witnesses and obstructing the investigation, given the nature and the dangerousness of the offence imputed to him as well as his previously-held position and connections.

The applicant requested that the unlawfulness of his arrest be recognised and that he be released on bail.

On 9 October 2018 the Yerevan Court authorised the applicant ’ s detention for a period of two months and rejected the applicant ’ s requests. It found, in particular, that the materials provided by the investigating authority, specifically the statements of witness S.H. and the record of the confrontation between the applicant and S.H., were sufficient to conclude that there existed a reasonable suspicion of the applicant having committed the crime with which he had been charged. At the same time, the court found the risk of absconding to be substantiated but considered that the investigating authority had failed to justify the existence of the risk that the applicant might obstruct the investigation.

The applicant appealed arguing, inter alia, that the detention was incompatible with his state of health. The Prosecutor General ’ s Office also lodged an appeal.

On 27 October 2018 the Criminal Court of Appeal rejected the applicant ’ s appeal and allowed that of the prosecution finding, inter alia , that the nature and the dangerousness of the imputed offence, along with the applicant ’ s connections with high-ranking officials, rendered the risk of his absconding and obstructing the investigation significantly higher.

On 19 November 2018 the applicant lodged an appeal on points of law with the Court of Cassation.

On 21 November 2018 the applicant applied to the Yerevan Court asking to be released on bail on health grounds.

On 26 November 2018 the SIS applied to the Yerevan Court seeking an extension of the applicant ’ s detention for a further two months.

By decision of 29 November 2018 the Yerevan Court granted the application of the SIS, extending the applicant ’ s detention until 6 February 2019. The applicant ’ s request to be released on bail was refused.

The applicant lodged an appeal against the Yerevan Court ’ s decision of 29 November 2018 which was rejected by the Criminal Court of Appeal by its decision of 27 December 2018.

On 21 December 2018 the applicant submitted another application to the Yerevan Court seeking to be released due to the deterioration of his state of health.

By decision of 27 December 2018 the Yerevan Court granted the applicant ’ s request and released the applicant on bail finding, inter alia , that in view of his medical condition he needed a special diet, constant care and care arrangements in a specialist medical institution which could not be ensured in a detention facility.

On the same date the applicant, who was at that time undergoing medical examinations in a civilian hospital, was released from detention.

On 16 October 2018 the applicant ’ s lawyer sent copies of medical documents attesting the applicant ’ s state of health to the head of Armavir detention facility, where the applicant had been placed after being transferred from the medical unit of Nubarashen detention facility. He requested that the applicant be provided with requisite assistance in accordance with the medical data contained therein.

On an unspecified date in the second half of October 2018 doctor M. visited the applicant in Armavir detention facility. He noted that the applicant ’ s state of health had deteriorated to some extent while in detention and requested that certain medical examinations be carried out. He also noted that the applicant had been prescribed a specific diet plan and an eating regimen with a frequent intake of small amounts of food, as well as specific medication.

It appears that the applicant ’ s family members sent him food corresponding to his dietary requirements regularly, twice a day, during his stay in Armavir detention facility while dietary food was provided by the facility once a day for breakfast. It further appears that the applicant was not allowed to receive food deliveries from his family at weekends and holidays or other non-working days. The applicant submitted that the detention facility did not provide him with the necessary medication and it was due to his relatives ’ efforts that he continued to take the prescribed medication.

The applicant underwent an ultrasound examination at Yerevan University Clinic on 31 October 2018 which showed, inter alia , the presence of a 2.26 cm stone in the gallbladder as well as a stone with a diameter of 1.2 cm in the inferior pole calyx of the kidney.

On 14 November 2018 the investigator ordered a forensic medical examination to determine the applicant ’ s state of health and whether it was compatible with detention.

On 20 November 2018 the applicant submitted an application to the investigator requesting that the medical professionals specified therein be included in the panel of experts. The applicant also requested that additional questions, as suggested by him, be put to the experts.

By decision of 23 November 2018 the investigator rejected the applicant ’ s request in so far as the request to put additional questions to the experts was concerned, while he postponed the examination of the applicant ’ s request concerning the involvement of medical professionals indicated by him. According to the applicant, the investigator never returned to the latter issue.

It appears that on 25 December 2018 the applicant was admitted to the surgical department of Astghik Medical Centre where he underwent a number of medical examinations.

By letter of 27 December 2018 a panel of medical specialists of Astghik Medical Centre informed the forensic medical experts assigned with delivering an expert opinion about the applicant ’ s medical condition regarding the results of the applicant ’ s examinations, his diagnosis and recommended treatment. Hence, based on the results of the applicant ’ s medical examinations performed during his stay at Astghik Medical Centre, his medical condition was described as follows:

“Condition associated with laparotomy because of acute pancreatitis, transluminal drainage of peripancreatic abscesses from the duodenum and stomach, ERCP, EPST (endoscopic papillosphincterotomy), removal of gallstones; gallstone disease, chronic cholecystitis , choledocholithiasis, chronic pancreatitis with acute peripancreatic fluid collection, glucose tolerance disorder, portal hypertension, erosive antral gastritis, HP (Helicobacter pylori) negative.

Concomitant diseases and symptoms: kidney cysts ... excessive local tissue growth on the left adrenal gland.

... it is advised to perform urgently a further [ERCP], [EPST]: removal of stones, cholecystectomy, requisite treatment by medication and diet, constant supervision by an endocrinologist and nutritionist.”

It appears that on 28 December 2018 the applicant was discharged from Astghik Medical Centre.

On the same date a panel of medical professionals in the field of surgery issued a joint opinion, which was signed by the head physician of Astghik Medical Centre, according to which the applicant suffered from gallstone disease, chronic cholecystitis with gallstones, choledocholithiasis (presence of gallstones in the bile duct) and chronic pancreatitis with acute peripancreatic fluid collection. Considering the results of the applicant ’ s latest examinations, the members of the panel concluded that the stone in the gallbladder had migrated into the common bile duct which had resulted in repeated acute pancreatitis and doctors advised that the gallstone be removed from the common bile duct via ERCP (endoscopic retrograde cholangiopancreatography) as a first stage. However, considering the applicant ’ s past pancreatic necrosis and the complications associated with the previous ERCP and the past necessity of performing transluminal drainage of peripancreatic abscesses, another endoscopic intervention risked bringing about an aggravation of the pancreatitis with its follow-up complications. The panel therefore advised that the applicant receive treatment at the same foreign clinic as before, taking into account that the relevant treatment techniques comprising transluminal drainage were not practised in Armenia.

On the same date the applicant applied to the investigator with a request to return his passport and allow him to travel to Germany for urgent medical treatment. A note from the applicant ’ s treating doctor at Dresden University Clinic recommending his urgent admission was submitted along with the application.

According to the applicant, one of the SIS investigators verbally informed his lawyer that the above request would not be addressed promptly since the SIS would be closed for the end-of-year holiday as from 29 December 2018.

On 29 December 2018 the applicant submitted an application to the investigator requesting urgent treatment of his application of 28 December 2018 in view of the imminent risk to his life.

According to the applicant, on the same date his lawyer was informed verbally that both applications would be refused and that no formal decision would be taken until the SIS resumed its activity on 8 January 2019.

On 2 January 2019 the applicant submitted a request under Rule 39 of the Rules of Court requesting the Court to indicate to the respondent Government to return his passport and authorise his travel to Germany for life-saving medical treatment.

On 3 January 2019 the Court (the duty judge) decided to suspend the examination of the applicant ’ s request until receipt of information from the respondent Government. In particular, the Court requested the respondent Government to submit, by 11 January 2019, the following information:

“1. Has the applicant ’ s passport been seized by the authorities? If so, what are the legal and the factual grounds of this measure?

2. Is medical treatment required by the applicant ’ s state of health available to him in Armenia?”

On 8 January 2019 the applicant informed the Court that the investigator had returned his passport while at the same time he had objected to the applicant leaving the country, stating that any such action would be viewed as an attempt to flee. The applicant also stated that he was still in hospital under constant medical supervision.

On 11 January 2019 the respondent Government submitted that the applicant ’ s passport had been seized in accordance with the relevant provisions of the Passport Act authorising the seizure of a suspect ’ s or accused ’ s passport in criminal proceedings. In any event, the applicant ’ s passport had been returned to him. As regards the availability in Armenia of the treatment required by the applicant ’ s state of health, the Government gave assurances that the hospitals in Armenia had the necessary medical staff and equipment to perform the required medical intervention, that is ERCP and EPST stone removal. In that respect the Government, relying on the data provided by the Minister of Health, submitted that ERCP and EPST procedures were commonly practised in several medical institutions in Armenia and provided statistics for the years 2017 and 2018 of the number of medical interventions of the same type carried out in several clinics. The Government submitted that the required treatment was therefore accessible and available to the applicant.

On 16 January 2019 the applicant submitted his comments in reply to the information provided by the Government. He argued that the Government had misrepresented the situation with regard to the type of treatment required by the applicant ’ s state of health. In particular, the Government, having described the necessary treatment as merely stone removal surgery via ERCP and EPST, had stated that such treatment was readily available to the applicant in Armenia. However, the Government had failed to address the issue of unavailability of the transluminal drainage procedure required to deal with possible complications similar to those which had occurred after the ERCP performed in 2016. The applicant referred to the findings of the medical panel of 28 December 2018 and another panel of eight medical professionals, which had issued an opinion on the applicant ’ s state of health and required treatment on 9 January 2019, the relevant parts of which read as follows:

“... treatment plan:

I. EPST - endoscopic removal of the stone from the common bile duct;

II. laparoscopic cholecystectomy [gallbladder removal].

... considering the patient ’ s several past endoscopic interventions ... there is a high probability that the performance of the same intervention will result in future complications [such as] perforated intestine, pancreatitis, bleeding, cholangitis with an unpredictable course and result. In those circumstances, all the necessary endoscopic interventions should be carried out in the foreign clinic where the previous interventions were performed, where the expertise and equipment are of a higher level...”

On 17 January 2019 the Court (the duty judge) decided to indicate to the respondent Government, under Rule 39, to ensure urgently that the applicant receives adequate medical care in accordance with his current state of health and the relevant instructions of medical professionals including, when necessary, transluminal drainage procedure. The Government were requested to inform the Court of the measures taken to comply with the indicated interim measure as soon as possible and no later than within fifteen days.

On 18 January 2019 the applicant, referring to the interim measure indicated by the Court, applied to the SIS seeking authorisation to travel to Germany to receive urgent medical treatment.

On 21 January 2019 the applicant, who was in hospital, was served a copy of the forensic expert report of 14 January 2019 delivered by the panel of forensic medical experts as ordered by the investigator on 14 November 2018. The experts ’ conclusions read as follows:

“1. According to the medical documents submitted to the panel and the results of the medical examinations ... [the applicant ’ s] diagnosis was the following: condition associated with laparotomy because of acute pancreatitis, transluminal drainage of peripancreatic abscesses from the duodenum and stomach, ERCP, EPST (endoscopic papillosphincterotomy), removal of gallstones; gallstone disease, chronic cholecystitis, choledocholithiasis, chronic pancreatitis with acute peripancreatic fluid collection, glucose tolerance disorder, portal hypertension, erosive antral gastritis, HP (Helicobacter pylori) negative...

2. [The applicant ’ s] ... condition in general is satisfactory, however the diseases he has been diagnosed with contain a risk of development of life-threatening complications ... It should be noted, however, that it is not possible to make a prediction as to the timing of development of those complications.

3. [The applicant ’ s] current diagnosis ... is not included in ... the list of grave diseases hindering the serving of punishment.

4. [The applicant ’ s] current state of health requires specialist surgical and post ‑ surgical treatment.”

By letter of 23 January 2019, the investigator informed the applicant about the decision of the same date whereby his application of 18 January 2019 had been refused. The investigator urged the applicant to undergo the required medical intervention as soon as possible in one of the leading clinics in Armenia and stated that, in case of development of post-surgical complications and the necessity of transluminal drainage, the latter would be ensured.

On the same date a medical panel appointed on the basis of the order of the Minister of Health of 22 January 2019 provided replies to the specific questions included in that order after having examined the applicant and the medical documents in relation to his state of health. The panel noted, in particular, that transluminal drainage of the pancreas was indicated for the applicant while such medical procedure was not practised in Armenia because of the absence of the relevant equipment and expertise. The panel also noted that in Armenia there were no methods for elimination of peripancreatic abscesses and necrotic tissues that would have a level of efficiency and safety comparable to that of transluminal drainage.

On 24 January 2019 the applicant, referring to the findings of the medical panel of 23 January 2019, submitted another application to the SIS seeking authorisation to leave the country.

By letter of the same date the applicant was informed that the SIS did not object to the applicant ’ s medical treatment in Germany and that his preventive measure (bail) had been replaced by a personal surety.

On 25 January 2019 the applicant informed the Court that he intended to take the earliest possible flight to Dresden.

On 1 February 2019 the Government informed the Court that the applicant had already left for Germany, where he was receiving medical treatment.

By letter of 30 November 2019 the Government informed the Court that, based on the medical certificate of the Dresden University Clinic provided by the applicant ’ s lawyer on 9 August 2019, the Ministry of Health had indicated that after the applicant ’ s intensive recovery, which was intended to last until the end of September 2019, his further medical supervision, if his health were satisfactory, could be organised in Armenia. Hence, the SIS had suggested that the applicant return to Armenia within a period of fifteen days after the completion of his intensive recovery. On 15 October 2019 the applicant ’ s lawyers had informed the SIS that the applicant had intended to return to Armenia on 11 October 2019 but had been unable to reach the airport in Vienna because of deterioration in his health. Lastly, according to the information obtained by the SIS from Interpol, between 2 and 3 September 2019 the applicant had arrived at a hotel in Prague, Czech Republic as a visitor. The SIS therefore considered that there was a reasonable suspicion that the applicant was avoiding prosecution.

COMPLAINTS

1. The applicant complains under Article 2 of the Convention that his health deteriorated into a life-threatening condition because of the authorities ’ decision to place and keep him in detention despite his poor health. The applicant then complains under the same provision that the authorities, being aware of the risk to his life, refused to allow him to leave the country in order to receive urgent life-saving medical treatment, thus putting his life in still more danger.

2. The applicant also complains under Article 3 of the Convention that his health deteriorated as a result of his detention. He further complains under the same provision that the authorities failed to provide him with his prescribed medication and meals compatible with his medically-prescribed diet while in detention. It was only due to the efforts of his family that he received the required medication and was able to follow his diet, while because of the relevant restrictions he was unable to have food delivered during the weekends and non-working days.

QUESTIONS TO THE PARTIES

1. (a) Can the applicant claim to be a victim of a violation of Article 2 of the Convention? In the affirmative, was the deterioration of the applicant ’ s state of health into an acute condition during his detention and the authorities ’ refusal to allow his travel abroad for urgent medical treatment in breach of the applicant ’ s right to life, as guaranteed by Article 2 of the Convention?

(b) Alternatively, do the above facts give rise to a violation of Article 3 of the Convention?

2. Were the applicant ’ s health and well-being adequately secured during his detention at Armavir detention facility as required by Article 3 of the Convention? In particular, was the applicant provided with the medication and special diet prescribed to him by his treating doctors? If not, did this failure cause the applicant ’ s state of health to deteriorate beyond the natural course of his medical condition?