A v. Russian Federation

The author of the communication is A, a citizen of the Russian Federation born in 1991. She claims that the Russian Federation has violated her rights under articles 2 (f) and (g) and 12 of the Convention. The Optional Protocol entered into force for the State party on 28 October 2004. The author is represented by counsel.

The author is 28 years of age and the mother of two children, an 8-year-old boy and an infant born in late 2017. The author alleges that she suffers from a drug dependence and tested positive for HIV in 2016 or 2017, although her drug dependence was not diagnosed or medically supported by evidence during the period in question. Her drug use began in response to her frequent mood swings, which she began having at 13 or 14 years of age, and it affected her performance in school, as a result of which she had dropped out.¹ In early October 2016, the author was convicted of helping two of her acquaintances to purchase synthetic cannabinoids. On 24 April 2017, she was sentenced to 200 hours of mandatory labour. In early May 2017, the author learned that she was pregnant. As a result of her pregnancy, she had periods of anxiety followed by depression, and she began to regularly use cannabinoids.

1. According to documents in the file. ↩

On 28 June 2017, the author was stopped by police near her apartment and tested for drug use. On this first occasion, she tested positive for drug use and was given an administrative sanction. On 3 July 2017, she was stopped again near her residence and the police found 0.53 grams of a substance known to be a synthetic cannabinoid. The properties and effects of the seized drug, as well as the real amount of the actual forbidden substance according to the law, were not established by the police at the scene, nor later at the court hearings. The author was nevertheless charged with possessing illegal drugs in a “large amount”, under article 228 (2) of the Criminal Code of the Russian Federation, a crime punishable by from 3 to 10 years’ imprisonment.

The author maintains that neither her substance use issues nor her psychiatric health were assessed by the State party authorities. In July 2017, she was asked by the investigator in her case whether she needed drug dependency treatment. According to the author, she was afraid to lose custody of her child, so she said that she was not dependent on drugs. The investigator researched official sources with regard to her drug dependency but did not find any registration or evidence thereof. According to the author’s counsel, the investigator should have ordered such an evaluation anyway, as required under article 196. (3.2) of the Criminal Procedural Code of the Russian Federation, given that there were reasons to suspect that she was a person who was addicted to drugs.²

2. The investigator filed a request with the State organization for drug addiction treatment to confirm whether the author was registered as a drug user and whether she needed treatment. The organization informed the investigator that the author was not registered as a person addicted to drugs. ↩

On 15 August 2017, the author sought support for her possible dependence on drugs for the first time and visited a local peer support group. On 18 August 2017, the author went to a regional drug dependence centre. She informed a doctor there of her drug dependence and pregnancy, but she was refused treatment, with no reasons provided.³ There are no gender-sensitive drug dependence treatment clinics in the Russian Federation, including in the author’s city of Yekaterinburg, and there are no clinics to treat drug dependency among pregnant women or women with children. The author maintains that this may be the reason that the health authorities did not respond. The author did not further appeal the lack of response by the Ministry of Health.

3. The author filed two complaints with the Ministry of Health, to no avail. ↩

On 21 August 2017,⁴ after a short trial, the author was sentenced to three years’ imprisonment. Defence counsel argued that the author needed drug dependency treatment in a gender-sensitive setting, taking into account her pregnancy of 20 weeks’ gestation at the time. Counsel asked for a non-custodial sentence and a suspended sentence under article 82 of the Criminal Code. The judge instead emphasized that the author had been convicted repeatedly for drug offences and that she could not be sentenced to a non-custodial sentence. There was no evidence or admission of dependency by the author at this hearing either. She was taken into custody immediately.

4. There was no evidence of the author’s pregnancy, which she announced for the first time during the court hearing on 21 August 2017. ↩

During the author’s time in remand prison, she was not given access to the antiretroviral treatment drugs needed to suppress HIV, from 18 to 21 September 2017. She lodged a complaint about the denial of treatment with the Ministry of Health. No further appeal was undertaken. She was in a state of continuous stress and depression and therefore gave birth early, at 6.5 months’ gestation, to a child who was with her in prison at the time of the submission of the communication.

The author submits that she has exhausted all available domestic remedies. On an unspecified date, the author filed an appeal with the Sverdlovsky regional court. On 18 October 2017, the court refused to grant an appeal or to address the author’s complaint. In the appeal, the author did not complain that article 196 (3.2) of the Criminal Procedural Code had not been applied by the investigating authorities or the court. In addition, the author said that all documents concerning her dependency and health conditions were included in the materials of the first instance court and that she had not asked for additional facts to be taken into account.

On an unspecified date, the author filed a cassation request with the Presidium of the Sverdlovsky regional court. On 11 January 2018, the court rejected the request. Only in the cassation complaint was it mentioned that the court should have ordered an expert assessment of author’s dependence on drugs.

On an unspecified date, the author filed a cassation request with the Supreme Court of the Russian Federation. On 26 March 2018, the Supreme Court rejected the cassation request.

The author submits that supervisory review by the Supreme Court is an extraordinary remedy.

Article 12 of the Convention requires States parties to take all measures to eliminate discrimination against women in access to health-care services. In the present case, the State party did not provide adequate medical services or give due consideration to the comprehensive health-care needs of a drug-dependent pregnant woman.

Article 2 (f) and (g), read in conjunction with article 12, of the Convention requires that States parties take all appropriate measures to abolish practices that discriminate against women. In the present case, the State party failed to take appropriate legal and policy measures to address discrimination against women by: (a) failing to provide support to ensure access for women with children and pregnant women to gender-sensitive drug dependence diagnostic assessment and treatment; (b) maintaining chronic drug dependence as the sole legal basis for the deprivation of parental rights; (c) maintaining criminal and administrative laws that subject women to custodial criminal sanctions for activities related to drug use; and (d) failing to establish facts related to the author’s health and taking them into consideration when sentencing her as a person whose behaviour suggests drug dependence and/or mental health problems.

The author claims that her rights under article 2 (f) were violated because she was refused treatment by a doctor when she informed him about her pregnancy. She claims that the main reason for that was the State party’s lack of gender-sensitive protocols for providing drug dependence and other services for pregnant women who use drugs. The majority of drug dependence treatment programmes in the Russian Federation do not accept pregnant women or women with children. Moreover, regulations and clinical protocols list the majority of medicines approved for drug treatment as contraindicated in pregnant women.⁵ Doctors are reluctant to admit pregnant women for treatment. The treatment services are offered on a uniform basis designed around the clinical and other needs of men. There are few, if any, gender-sensitive drug dependence treatment or rehabilitation centres, including centres for mothers with young children.

5. Ministry of Health of the Russian Federation, Order of 28 April 1998 No. 140 on approving standards (model protocols) for diagnostics and treatment of drug-dependent patients. ↩

The author claims that her rights under article 2 (f) were further violated because the State party has undertaken no legal measures to ensure that women with children are not discriminated against on the basis of article 69 of the Family Code, which authorizes the deprivation of parental rights based solely on the fact that a parent uses drugs.

The author claims that her rights under article 2 (g) were violated because the State party maintains national penal provisions that constitute discrimination against women on the basis of the health condition of drug dependence. The State party failed to apply national legal provisions that could have helped the courts to establish facts related to the author’s health and to take them into consideration, in order to impose the most lenient, non-custodial punishment.⁶ The State party hypocritically penalized the author for behaviour related to drug use.

6. E/C.12/RUS/CO/6, paras. 50–51; and CRPD/C/RUS/CO/1, para. 52. ↩

In a note verbale dated 6 December 2019, the State party submitted its observations on the admissibility and the merits of the communication.

The State party recalls the facts of the case, including the circumstances of the criminal case against the author.

The State party submits that, on 8 May 2019, the author filed an appeal with the Sverdlovsky regional court. On 9 July 2019, the court replaced the unserved part of the sentence of imprisonment (one year, one month and 21 days) with the restriction of freedom for the same period.

The State party submits that, during the arrest and imprisonment, the author filed two applications to the penitentiary medical institution and received responses. During that time, the author filed no complaint with the court in relation to improper medical services.

The State party submits that the author was diagnosed with pregnancy when she was placed in a pretrial detention facility. She was provided with the necessary HIV treatment. The author had a consultation with a psychiatrist who did not find any indications for the treatment of drug addiction. The court did not order any compulsory medical treatment for the author.

The State party submits that, on 14 June 2018, the author refused in writing antiretroviral treatment, in spite of regular conversations about the importance of such treatment. Health care was provided to the author in accordance with national law. No complaint with regard to lack of qualified medical assistance was lodged with the court or prosecutors by the author or her representatives.

The State party submits that the author was criminally charged for assisting in the illegal acquisition of drugs in a significant amount. The court did not have information that the author consumed drugs. During the investigation, including the outpatient forensic psychiatric examination, the author stated that she was not a drug-addicted person and that she did not consume drugs. The author claimed the same at the court hearings. The investigative authorities therefore did not have reason to assume that the author was a drug-addicted person such that they would need to order an expert opinion. At the court hearing, neither the author nor her representative requested the opinion of a forensic expert as to the state of health of the author.

The State party submits that the author went to a regional drug dependence centre and to a peer support group just several days before the criminal trial, which means that the author did not consider herself to be a drug-addicted person. She went there because she was obliged by the administrative sentence to undergo a diagnostic assessment and, if necessary, treatment.

The State party submits that the issue of the deprivation of the author’s parental rights was never raised.

The State party submits that the author was sentenced to the minimum possible sentence envisaged in the law for the crime that she had committed.

The State party therefore concludes that the author’s claims of violations of articles 2 (f) and (g) and 12 of the Convention have not been substantiated.

On 20 March 2020, the author submitted comments on the State party’s observations on admissibility and the merits.

The author submits that the State party either confirmed or did not deny all facts of the complaint concerning how the author was prosecuted, convicted and sentenced. The author therefore maintains that she was discriminated against because the State party authorities subjected her to harsh criminal and administrative punishment, without taking into account her drug dependence, pregnancy and possible mental health disorder and without any attempt to provide her with evidence-based, gender-sensitive drug dependence diagnostic assessment and treatment.

The author submits that a social worker with the peer support group informed the judge that a place had been negotiated for the author at a private drug rehabilitation facility. The judge did not give any consideration to that fact. The author submits that the State party’s health-care system did not help a person whose behaviour manifested drug use, which was especially relevant given the author’s pregnancy.

The author submits that access to the antiretroviral and drug dependence treatment in prison was not the core subject matter of the complaint. The core subject matter is how the author was treated during the prosecution, conviction and sentencing. The author informs the Committee that she refused the antiretroviral treatment not because she did not want it, but because she had very strong adverse side effects as a result of the treatment, and she could not be provided with other medications to alleviate those effects. She did not request the drug dependence treatment, because she was afraid of the negative effects of doing so on her early conditional release.

The author reiterates that she has exhausted all available domestic remedies. Domestic legislation and practice do not allow for the possibility of bringing complaints such as the present case to court, however, which results in the violation of her right to effective domestic remedy. In addition, there are no effective drug dependence treatment programmes in prisons in the Russian Federation.

In accordance with rule 64 of its rules of procedure, the Committee must decide whether the communication is admissible under the Optional Protocol. Pursuant to rule 66, the Committee may examine the admissibility of the communication separately from the merits.

In accordance with article 4 (2) (a) of the Optional Protocol, the Committee is satisfied that the same matter has not been and is not being examined under another procedure of international investigation or settlement.

In accordance with article 4 (1) of the Optional Protocol, the Committee shall not consider a communication unless it has ascertained that all available domestic remedies have been exhausted, unless the application of such remedies is unreasonably prolonged or unlikely to bring effective relief. The Committee notes that the author submits that she has exhausted the domestic remedies available to her. The Committee notes, first, that on 21 August 2017, the author was sentenced to three years’ imprisonment. During the author’s time in remand prison, she was not given access to the antiretroviral treatment drugs needed to suppress HIV, from 18 to 21 September 2017. She lodged a complaint about the denial of treatment with the Ministry of Health but did not appeal it further. The Committee further notes that, on an unspecified date, the author filed an appeal with the Sverdlovsky regional court, which was refused by the court. On an unspecified date, the author filed a cassation request with the Presidium of the Sverdlovsky regional court, which was rejected. Finally, the Committee notes that, on an unspecified date, the author filed a cassation request with the Supreme Court of the Russian Federation. On 26 March 2018, the Supreme Court rejected the cassation request. The Committee notes that the State party has not contested the assertion that the domestic remedies have been exhausted.

The Committee refers to its jurisprudence, according to which an author must have raised in substance at the national level the claim that he or she wishes to bring before the Committee so as to enable the national authorities or courts to have an opportunity to deal with such a claim.⁷ The Committee notes that, in the appeal complaint, the author did not raise the issue that article 196 (3.2) of the Criminal Procedural Code had not been applied by the investigating authorities or by the courts. In addition, the author said that all documents about her dependency and diseases were in the materials of the first instance court, and that she had not asked for additional facts to be taken into account. The Committee also notes that the author had only mentioned in the cassation request that the court should have ordered an expert assessment of her dependence on drugs. Finally, the Committee noted that the other claims, including alleged violations of articles 2 (f) and (g) and 12 of the Convention, had not been raised in substance at the national level.

7. Kayhan v. Turkey (CEDAW/C/34/D/8/2005), para. 7.7; and N.S.F. v. United Kingdom of Great Britain and Northern Ireland (CEDAW/C/38/D/10/2005), para. 7.3. ↩

In the light of these considerations, the Committee considers that it is precluded from examining the present communication because the author has not exhausted the available domestic remedies.

The Committee therefore decides: (a) That the communication is inadmissible under article 4 (1) of the Optional Protocol;