Communicated on 2 November 2015

FIRST SECTION

Application no. 25465/15 Anahit GALSTYAN against Armenia lodged on 16 May 2015

STATEMENT OF FACTS

The applicant, Ms Anahit Galstyan, is an Armenian national who was born in 1959 and lives in Yerevan. She is represented before the Court by Mr T. Safaryan , a lawyer practising in Yerevan.

A. The circumstances of the case

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

On 18 January 2013 the applicant was convicted on two counts of fraud and sentenced to imprisonment for four years and six months.

On 10 June 2013 the applicant was convicted on another count of fraud and sentenced to imprisonment for two years and six months. She received a final punishment of five years and six months ’ imprisonment.

From 22 March 2013 the applicant served her sentence in Abovyan prison. According to the applicant, the prison has only one general practitioner and there are no possibilities or necessary equipment for ensuring specialised medical care.

In the course of serving her prison term the applicant felt unwell and experienced breast change and deformation. In August 2013 she was diagnosed with cancer of the right breast.

On 18 September 2013 the applicant was admitted to the Oncology Centre of the Ministry of Health (the Centre) where she underwent a course of chemotherapy. She was also examined by a rheumatologist.

On 23 October 2013 the applicant was discharged from the Centre, being finally diagnosed with cancer of the right breast T 3b NxM 0 with resultant polymyalgia rheumatica and hypertonic cardiomyopathy. She was advised to undergo another course of chemotherapy in three weeks and medication was prescribed. She was taken back to Abovyan prison.

The applicant was transferred to the Centre on 25 November 2013. She underwent the second course of chemotherapy and was examined by a cardiologist.

On 5 December 2013 the applicant was discharged from the Centre and her next visit was due to take place in three weeks. She was again prescribed some medication.

Thereafter, the applicant was transferred to the Centre on 14 January 2014. She underwent the third course of chemotherapy.

On 22 January 2014 the applicant was discharged. According to the medical report, her discharge diagnosis was cancer of the right breast with resultant illnesses including polymyalgia rheumatica , hypertonic illness and mastopathy . The report advised continuation of the treatment in three weeks ’ time and that the applicant remain under the supervision of an oncologist, cardiologist and rheumatologist. The applicant was taken back to Abovyan prison.

From 11 until 20 February 2014 the applicant underwent her fourth course of chemotherapy at the Centre. On discharge her medical report stated that she was suffering from cancer of the right breast with resultant rheumatic polyneuritis, hypertonic illness and mastopathy . It also stated that the applicant had not received the medication prescribed by the cardiologist and the rheumatologist in October 2013. Furthermore, supervision by an ophthalmologist, oncologist, cardiologist and rheumatologist was recommended and the next visit was due to take place in three weeks.

On 20 February 2014 the applicant returned to Abovyan prison.

On 11 March 2014 the applicant was again admitted to the Centre. She underwent a mastectomy on 25 March 2014.

The applicant was discharged on 1 April 2014. Her final diagnosis, according to the discharge medical report, was cancer of the right breast p T3N2M0, stage 3a, mixed tumour, condition after combination treatment. Colpitis and varicose disease of the lower extremities were mentioned as resultant illnesses. The medical report also stated that it had been agreed that the prison doctor would continue to change surgical bandages at the prison. The doctors recommended a consultation with a chemotherapy specialist and a radiologist in about twenty days.

According to the applicant, she did not receive any post-operative care while in prison. Furthermore, her condition was not supervised by an ophthalmologist, oncologist, cardiologist and rheumatologist because there were no such specialists at the prison. She suffered from severe pain in the chest area but the only medical treatment provided by the prison doctor was the administration of very basic analgesics. Therefore, very often she had to put ice on her chest in the area of the wound to relieve the pain.

It appears that on 27 May 2015 the Abovyan prison warden sent a letter to the Penitentiary Service of the Ministry of Justice with a view to beginning the procedure to secure the applicant ’ s early release on the basis of a grave illness impeding the service of punishment.

On 2 June 2014 the Head of the Medical Service Unit of the Penitentiary Service replied to the above enquiry, stating the following:

“ ... [ the applicant] has been diagnosed with mammae dextrae p T3N2M0, 3a stage, mixed tumour type, condition after combined treatment>.

The gravity of the mentioned illness does not correspond to the list of grave illnesses that impede the service of punishment included in A nnex 2 of Government Decree no. 825-N of 26.05.2006.”

It appears that on 10 June 2014 the Group of Public Observers Conducting Public Monitoring of the Penitentiary Institutions and Entities under the Ministry of Justice (the Monitoring Group) visited the applicant in prison and learned of her situation.

On 12 June 2014 the Monitoring Group filed a report concerning the applicant with the Minister of Justice. According to the applicant, the Monitoring Group drew the Minister ’ s attention to the fact that the applicant ’ s diagnosis fell within the category of illnesses that impede the service of punishment listed in Annex 2 of Government Decree no. 825-N and that the Head of the Medical Unit of the Penitentiary Service had no power to decide single-handedly whether the gravity of the applicant ’ s illness allowed her to be exempted from serving the remainder of her sentence.

By letter of 8 July 2014 the Monitoring Group was informed by the Ministry of Justice that, inter alia , the Penitentiary Service had ordered the applicant ’ s transfer to the Centre in order to clarify her diagnosis and obtain a specialist conclusion.

According to the applicant, despite the above order of the Penitentiary Service, she was never transferred to the Centre for further examinations.

It appears that on 11 December 2014 an inter-institutional medical commission (the Commission) delivered a conclusion concerning the applicant ’ s state of health, which stated that she was suffering from cancer of the right breast, condition after combination treatment, pT3N2M0 st age 3a.

On 12 December 2014 the Abovyan prison warden lodged a motion with the Kotayk Regional Court seeking the applicant ’ s early release on the basis of the Commission ’ s opinion of 11 December 2014.

On 16 December 2014 the Regional Court examined the above motion and granted it. The relevant parts of this decision read as follows:

“ ... taking into account the nature and the gravity of the offence committed by [the applicant], her personality, her serious health condition which is incompatible with further service of the punishment, the motion lodged by the administration of the Abovyan prison, the Court finds that [the applicant] should be exempted from serving the rest of her sentence because she is suffering from a serious illness which is incompatible with serving the punishment.

... the motion is well-founded, complies with the texts of Article 432 of the Code of Criminal Procedure and Government Decree no. 825-N of 26.05.2006, it should therefore be granted.”

B. Relevant domestic law

1. The Criminal Code (in force from 1 August 2003)

Article 79 § 2 provides that if, after having committed an offence or having been convicted, a person develops a grave illness (other than a mental disorder as provided in the first paragraph of this provision) which impedes serving the punishment, the court may exempt him from serving the punishment, taking into account the gravity of the offence, the personality of the convict, the nature of the illness and other circumstances.

2. The Code of Criminal Procedure (in force from 12 January 1999)

According to Article 432 § 1 if, while serving his punishment, a person sentenced to imprisonment develops a chronic mental or other grave illness which hinders serving the sentence, the court has the right to make a decision to exempt him from further serving the sentence on the basis of a motion lodged by the administration of the institution in charge of the execution of the punishment which should be supported by a conclusion of a medical commission.

3. The penitentiary code (in force from 10 February 2005)

Article 112 § 1 sets out a list of grounds for exemption from serving punishment which includes a grave illness impeding the serving of punishment.

Article 113 § 7 sets out the procedure for exemption from serving punishment on the basis of a grave illness and states that the motion seeking exemption from serving punishment is submitted to the court by the chief of the institution which executes the punishment. A relevant conclusion by a medical commission and the convict ’ s personal file should be submitted along with the motion.

4. 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.

Article 21 provides that the administration of a detention facility shall ensure the sanitary, hygienic and anti-epidemic conditions necessary for the preservation of health of detained persons. At least one general practitioner shall work at the detention facility. A detainee in need of specialised medical assistance must be transferred to a specialised or civilian medical institution.

5. 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 sets out detailed regulations concerning the healthcare of detained and convicted persons, including their in-patient and out-patient treatment. Annex 2 of this Decree provides a list of illnesses impeding the serving of punishment which includes third grade tumours (independently of their location) in accordance with the international TNM classification (Point 6 of Annex 2).

COMPLAINTS

The applicant complains under Article 3 of the Convention that medical treatment provided to her in prison was not adequate. In particular, although she received four courses of chemotherapy after she was diagnosed with cancer, she was not provided with the medication prescribed by the doctors and her transfer to hospital for chemotherapy courses was delayed. Moreover, she was not provided with any of the post-operative care recommended by doctors after she underwent a mastectomy.

The applicant complains under Article 5 § 1 of the Convention that as early as March 2014 the authorities became aware of her illness but failed to secure her speedier release from serving her sentence, as a result of which she was released only on 16 December 2014. Therefore, her detention from March until December 2014 was arbitrary.

QUESTION TO THE PARTIES

Has the applicant been subjected to inhuman or degrading punishment, in breach of Article 3 of the Convention? In particular, were the medical care provided to the applicant while in prison, and the manner in which the procedure for her early release was conducted, compatible with the requirements of this Article?

The Government are requested to provide a copy of the conclusion of the medical commission of 11 December 2014.