Refusal to grant methadone treatment to drug addicts did not violate their right to privacy

JUDGMENT

Abdyusheva and others v. Russia  26/11/2019  (no. 58502/11),

see here

SUMMARY

Public health and state protection.

The opioid addicts have sought to replace the treatment they received in public hospitals with methadone and buprenorphine. The Russian state has refused because of the danger of the indicated treatment for their health, considering it inappropriate. The Court found that the two applicants were in recession and dismissed their action as inadmissible.

For the third applicant, the court ruled by six votes to one that there was no violation of Article 8 because the treatment she proposed was dangerous, and because the authorities responsible for the life and health of each individual under their jurisdiction  could not ignore those dangers.

Nor did it find any prohibited discrimination and infringement of Article 14 because there was no difference in treatment between them and the other patients as these substances were prohibited in each case.

It also did not unanimously find a violation of Article 34 because the applicants were not prevented from reporting and finally ruled by 5 votes to two that there was no discrimination between persons suffering from drug addiction compared to those suffering from other diseases and their social status. an exclusion due to drug dependence is not attributable to the State therefore there has been no violation of Article 3 in conjunction with Article 14. The complaints have been rejected as unfounded.

PROVISIONS

Article 3,

Article 8,

Article 14,

Article 34

PRINCIPAL FACTS

The applicants, Mr Aleksey Vladimirovich Kurmanayevskiy, Ms Irina Nikolayevna Abdyusheva and Mr
Ivan Vasilyevich Anoshkin, are three Russian nationals, born in 1981, 1966 and 1980 respectively and
living in Kazan, Kaliningrad and Tolyatti.

The applicants, who had been heroin addicts for a long period, were treated by doctors in State
hospitals who specialised in treating drug addicts. The applicants, who were dissatisfied with the
treatment provided in those hospitals, submitted judicial applications requesting that replacement
therapy with methadone and buprenorphine, which they considered more effective, be prescribed.
Their requests were dismissed on the grounds that federal legislation prohibited the use of
methadone and buprenorphine for the purpose of treating drug addiction.

According to information supplied by the Government, which the applicants did not dispute, Mr
Kurmanayevskiy and Mr Anoshkin stopped using heroin in 2014.

Ms Abdyusheva has been using opioids since 1984. She submitted a report by a medical commission,
made up of two toxicologists and a psychiatrist from a non-governmental organisation, the
Ukrainian Institute for Public-health Research. The doctors indicated that the patient needed
replacement therapy of the kind requested. In response, the Government submitted a medical
certificate issued by a panel of Russian toxicologists, employed by the toxicology hospital which
treated Ms Abdyusheva. This certificate specified that replacement therapy by methadone and
buprenorphine did not remove the opioid addiction or result in remission. The doctors
recommended that the applicant follow a treatment programme based on medical and social
rehabilitation methods, which could give effective results regardless of the stage of addiction.

Mr Anoshkin has taken opioids since 1994. In April 2012 he submitted the same request as the other
two applicants to the Ministry of Health of the Samara Region. The Ministry informed him that the
substances in question were prohibited by law and suggested that he follow the conventional
treatment. Mr Anoshkin appealed to the courts but his case was dismissed on the same grounds.

THE DECISION OF THE COURT

Article 8

The Court noted that Mr Kurmanayevskiy and Mr Anoshkin had not demonstrated the need for any
medical treatment at all and especially for replacement therapy in order to overcome their opioid addiction. Indeed, according to the medical documents provided by the Government, they were
both in a state of remission, and had been for four years and one year respectively. The applicants did not dispute this. Their complaints were therefore ill-founded and thus inadmissible.

With regard to Ms Abdyusheva, according to the information submitted by both parties she was not
in remission, and the Court declared her complaint admissible.

With regard to the medical aspect, the Court was attentive to the arguments of both parties.
On the one hand, the Court noted that the Government considered replacement therapy not as a
treatment for drug addiction, but as capitulation to it. The Court noted that, according to the
Government, far from providing a solution to the problem, the substances in question presented
serious dangers for public health, such as poly-drug use, that is, the risk of concurrent use of
methadone with other opioids, such as heroin, resulting in exposure to the risk of an overdose and,
consequently, a high risk of death. The Government stated that the two substances in question were
opioids and that, far from ensuring recovery, they could in themselves merely lead to a new form of
dependency. They emphasised that the authorities, who were responsible for the life and health of
every person under their jurisdiction, could not ignore these risks. Lastly, the Government submitted
that medical treatment ought to be entrusted to health professionals rather than to patients or
lawyers, who did not have the necessary medical skills.

On the other hand, the Court noted that the applicant based her arguments on a wide European
consensus concerning access to replacement therapy; on Russia’s obligation to introduce this
treatment, resulting, in her view, from the international conventions signed by that State; and, lastly,
on the treatment’s usefulness in preventing HIV.

The Court reiterated its earlier finding that replacement therapy with methadone and
buprenorphine to treat opioid addiction, although widespread in the member States, was
nonetheless controversial (see Wenner v. Germany, 1 September 2016, § 61). In assessing the
parties’ arguments the Court noted that it was competent only to apply the Convention, and that it
was not its task to interpret or to review compliance with other international instruments.

Moreover, Ms Abdyusheva did not refer to any legally binding instrument which would
unequivocally oblige Russia to put in place a treatment for drug addiction using methadone or
buprenorphine. As to the prevention of HIV, the Court was considering the specific case before it.
From this perspective, the measure in question would not be such as to prevent the applicant, who
already carried this virus, from contracting it. Lastly, with regard to the European consensus in this
area, the Court held that this was indeed an important factor in analysing proportionality, but that it
was not decisive.

The Court was of the view that the public-health risks raised by the Government – and undisputed
by the applicant –, namely the dangerous nature of the substances in question, poly-drug use and
the attendant increased risk of death, were sufficiently serious. The Russian authorities, inspired by
the concern to safeguard the health of everyone under their jurisdiction, were therefore wellfounded
in introducing measures that were occasionally as drastic as the prohibition of certain
opioids.

In the light of the Russian authorities’ wide margin of appreciation in the area of public health, the
Court considered that they were better placed than it to define policy in an area as sensitive as the
fight against drug trafficking, regulation of the drug market and the medical treatment to be given to
drug addicts.

In addition, the Court noted that the applicant had not been deprived of the possibility of following
conventional treatment in Russian hospitals. It reiterated that its role was not to take the place of
health professionals or to judge the effectiveness of addiction therapy methods.

Taking into account both the public-health risks of replacement therapy and the individual situation
of Ms Abdyusheva, who was receiving medical attention, the Court considered that the Russian
authorities had not overstepped their margin of appreciation and had not interfered with the
applicant’s right to respect for her private life. There had been no violation of Article 8.

Article 14 taken together with Article 8

The applicants compared their situation to that of other persons suffering from chronic and
recurring illnesses such as diabetes, asthma or heart disease. However, according to the
Government, in Russia the substances requested by the applicants as substitutes for opioids, namely
methadone and buprenorphine, were banned from use in medical treatment of all patients.

The Court considered that, even assuming that the illnesses referred to by the applicants could be
compared to opioid addiction, there had been no difference in treatment between them and the
patients cited as examples, given that the substances in question were prohibited in every case.
The complaint was ill-founded and had to be dismissed.

Article 34

During her arrest and in the course of the ensuing administrative formalities at the police station,
Ms Abdyusheva was neither asked about her application to the Court nor encouraged, directly or
indirectly, to withdraw it. The police officers had simply indicated that she should go to the
prosecutor’s office for a meeting, a usual practice in gathering information. She attended the
meeting of her own free will, accompanied by her lawyer, who was at liberty, if he had noted any
potential abuse by the prosecutor, to bring it to the Court’s attention. However, there was nothing
in the documents submitted to the Court by Ms Abdyusheva and her lawyer implying an objection as
to how the meeting was conducted or the prosecutor’s behaviour. Thus, there was nothing to
indicate that the interview in question had been intended to induce Ms Abdyusheva to withdraw or
amend her application to the Court.

The Court was unable, on the basis of mere suspicions, to establish a link between the fire-safety
checks carried out in the premises of Mr Anoshkin’s employer and the application lodged by him
before the Court.

The Court concluded that the State authorities could not be held to have hindered Ms Abdyusheva
and Mr Anoshkin in the exercise of their right of individual petition. The respondent State had not
breached its obligations under Article 34.

Article 3, taken alone and with Article 14

The Court held that the refusal to grant access to the medicines requested by the applicants was not
in breach of Article 3 of the Convention.

A person undergoing withdrawal did indeed experience intense suffering, but this was not caused by
State action and was only a consequence of the opioid addiction. Medical support for withdrawal –
which the applicants had received – was available in Russian hospitals. The Court noted that the
applicants did not specify instances when they had been refused such medical assistance or when it
had been manifestly insufficient and had caused them suffering which reached the level of severity
set out in Article 3.

Lastly, the Court considered that society’s contempt for drug addicts, from which the applicants
claim to have suffered, was hardly attributable to the State. There was no evidence that the State
had humiliated the applicants. Nor had the applicants explained how authorisation to use
methadone could change society’s attitude towards them or inspire greater respect.

The Court noted that there were no allegations that suffering had been inflicted by State agents; the other complaints alleging treatment contrary to Article 3 were unsubstantiated. The Court found that there had not been a difference in treatment between persons suffering from drug addiction compared with persons suffering from other illnesses.

The applicants’ complaints were ill-founded and had to be dismissed.

Separate opinions

Judges Dedov and Keller expressed separate opinions, which are annexed to the judgment.

 

echrcaselaw.com).


ECHRCaseLaw

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