Communicated on 7 September 2018
FIRST SECTION
Application no. 59687/17
Suren KHACHATUROV
against Armenia
lodged on 18 August 2017
STATEMENT OF FACTS
The applicant, Mr Suren Khachaturov, is a Russian national who was born in 1974 and lives in Yerevan. He is represented before the Court by Mr V. Grigoryan and Mr N. Baghdasaryan, lawyers practising in London and Yerevan, respectively.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Extradition proceedings and the applicant’s state of health
On an unspecified date in June 2015 the applicant arrived in Armenia from Russia.
On 10 June 2015 the Russian authorities charged the applicant with corruption-related offences.
On 16 June and 8 July 2015 the Russian authorities initiated a search for the applicant.
On 14 July 2015 the Savelevskiy District Court of Moscow, pursuant to the application of the investigator, decided to detain the applicant in absentia.
On 11 April 2017 the applicant was arrested in Armenia. He was later detained pending determination of the question of his extradition to Russia.
On 11 May 2017 the Prosecutor General of Russia filed a letter with the Prosecutor General of Armenia seeking the applicant’s extradition in accordance with the provisions of the 1993 Minsk Convention on Legal Aid and Legal Relations in Civil, Family and Criminal Cases. That letter also stated that the applicant would not be subjected to torture, inhuman and degrading treatment or punishment.
On 14 May 2017 the Prosecutor General of Armenia filed an application with the Kentron and Nork-Marash District Court of Yerevan (“the District Court”) seeking to detain the applicant for two months pending determination of the question of his extradition to Russia.
On 23 June 2017 the Prosecutor General of Armenia decided to grant the extradition request. He also instructed the Police and the detention facility to ensure the applicant’s extradition to Russia after the extradition decision of 23 June 2017 had become final.
On 3 July 2017 the deputy head of the Central Prison Hospital, where the applicant was detained, provided a statement about the applicant’s health. According to that statement the applicant was suffering from the consequences of a stroke accompanied by severe vestibulopathy and eye‑movement impairment; remnants of the stroke in the area of the left medium artery of the brain accompanied by right-sided reflector hemiparesis; hemiparesis obstruction of walking; 2nd degree atherosclerotic encephalopathy; 1st degree arterial hypertension accompanied with cardio‑vascular complications in accordance with the “SKOR” scale, indicating a 5% risk of developing cardio-vascular disease.
On 6 July 2017 the applicant appealed against the extradition decision of 23 June 2017 before the Criminal Court of Appeal, which is a first instance court for such appeals. The applicant argued that, considering his state of health, his transfer to Russia could cause irreparable harm to his health or put his life in danger. In support of his appeal, the applicant relied on the medical conclusion of 3 July 2017.
On 12 July 2017 the Chief Neurologist of the Ministry of Health of Armenia issued a medical certificate, which stated that the applicant was suffering from the consequences of an ischaemic stroke. These consequences, in particular, included: serious vestibulopathy and eye‑movement impairment; remnants of the stroke in the area of the left medium artery of the brain accompanied with right-sided reflector hemiparesis; hemiparesis obstruction of walking; 2nd degree atherosclerotic encephalopathy; 1st degree arterial hypertension accompanied with cardio‑vascular complications in accordance with the “SKOR” scale indicating a 15% risk of developing cardio-vascular disease. Furthermore, those conditions were indications of the most serious diagnoses of the cardio‑vascular and neurological systems. Taking into account those conditions and risks, he concluded that it was not possible to authorise the applicant’s transfer to Russia either by air or land, as he would risk suffering a heart attack or another stroke.
On the same date the Prosecutor General of Russia sent a letter to the Prosecutor General of Armenia assuring him that during the applicant’s detention and, in case of conviction, during the serving of his sentence, staff of the Armenian consulate in Russia would have the opportunity to visit him. In addition, during the same periods, in case of necessity, the applicant would be provided requisite medical assistance.
On 14 July 2017 the Prosecutor General of Russia sent a letter to the Prosecutor General of Armenia assuring him that a specialist doctor would travel with the special convoy accompanying the applicant during his transfer, to provide him with medical assistance if necessary.
On 19 July 2017 the Criminal Court of Appeal rejected the applicant’s appeal. It relied on the assurances provided by the Prosecutor General of Russia concerning the presence of a medical specialist during the applicant’s transfer to Russia, as well as during his detention and, if convicted, while serving his sentence.
On 26 July 2017 the applicant filed an appeal on points of law against the decision of 19 July 2017, with similar arguments to those of 6 July 2017.
In the certificate of 28 July 2017 the head of the neurological department of a medical institution confirmed the applicant’s state of health as described in the certificate of 12 July 2017. It was further noted that the applicant had evidently developed cephalic syndrome accompanied by photophobia and phonophobia, which required treatment under the supervision of a neurologist. On the basis of those conditions and risk factors, the neurologist concluded that the applicant must not be transferred by air or land, as this might cause further heart and brain problems.
Between 14 August and 1 September 2017 the applicant underwent in‑patient medical examination and treatment in a civilian clinic. His discharge diagnosis stated the following:
“Arterial hypertension, state of crisis, high risk. Hypertonic cerebral crisis with insufficiency of blood circulation in vertebra-basilar pool, and frequent transient ischaemic attacks in vertebra-basilar pool and the pool of the left-middle cerebral artery. Discirculatory angio-encephalopathy of 3rd degree with ischaemic strokes in the vertebra-basilar pool and the pool of the left-middle cerebral artery accompanied with post-stroke cysts in the midbrain, the bridge and the brainstem; with leukoaraiosis with stable residual phenomena in the form of the right–sided moderate hemiparesis; vestibulopathy; moderate disorder of walking function; hypertensive syndrome manifested with frequent cephalgia.”
On 21 August 2017 the Court of Cassation quashed the contested decision and remitted the case for new examination on the ground that the Criminal Court of Appeal had failed to ensure that the applicant had understood the language of the proceedings and that he had been aware of his rights.
On 13 September 2017, the head of the cardio-neurology department of a medical institution issued a statement on the seriousness of the applicant’s state of health. The conclusion stated, in particular, the following: “the applicant’s diagnosis is serious and unpredictable, considering the tendency to hypertonic crisis in the form of transient ischaemic attacks and the two previous ischaemic strokes in the vertebra-basilar pool and the pool of the left-middle cerebral artery. A person suffering from those conditions cannot participate in court proceedings, because any emotional tension might lead to the development of new potential complications.”
On 25 October 2017, during the fresh examination of the applicant’s appeal against his extradition decision, his lawyer lodged an application with the Criminal Court of Appeal seeking to order the applicant’s forensic medical examination by an expert, with a view to assessing his state of health. The prosecutor participating in the hearing objected to the application, stating that there were insufficient grounds to conclude that the applicant’s transfer to Russia would pose any risks to his health or life. She reasoned that, during the examination of the Prosecutor General of Russia’s application for the applicant’s extradition, the Prosecutor General of Armenia had not been in possession of any medical documents about the applicant’s health. Moreover, the prosecutor expressed doubts about the applicant’s medical condition, referring to a letter from the detention facility dated 13 July 2017 stating that he was fit to participate in court proceedings.
On the same date the Criminal Court of Appeal rejected the appeal and affirmed the decision of the Prosecutor General of Armenia on extraditing the applicant to Russia, relying on the assurances of the Russian authorities that the applicant’s medical supervision during and after his transfer to Russia would be ensured. In the meantime, it also rejected the applicant’s application for a forensic medical examination on the ground that the assignment of a forensic medical examination during extradition proceedings was not prescribed under domestic law.
The applicant filed an appeal on points of law against the decision of 25 October 2017.
On 23 November 2017 the Court of Cassation declared the appeal inadmissible for lack of merit.
On the same date the decision of the Prosecutor General of Armenia to extradite the applicant to Russia became final.
On 30 November 2017 the decision of 23 November 2017 was served on the applicant’s lawyer.
On 11 December 2017 the applicant was released from detention on the ground that the maximum time-period of detention pending extradition had expired.
On the same date he was admitted to the neurology department of a civilian medical centre for examination and treatment.
On 14 December 2017 the Prosecutor General of Russia filed a letter with the Prosecutor General of Armenia referring to the letter of the Russian Federal Service for Execution of Sentences, which stated that the special convoy accompanying the applicant’s transfer would include a medical specialist ready to provide medical assistance to the applicant in accordance with his state of health. The letter further affirmed that medication and medical equipment necessary for provision of assistance in case of cardio‑vascular problems would be at the disposal of the doctor accompanying the applicant during his transfer. The letter also stressed that, before signing the applicant’s act of transfer, it would be necessary for the accompanying doctor to examine his medical records with a view to verifying the absence of contraindications for his transfer by air. Finally, it was stated that the applicant would undergo medical examinations and consultations upon arrival at the detention facility with a view to planning in-patient supervision of his chronic illnesses.
On 26 December 2017 the applicant qualified as 3rd degree disabled.
On 28 December 2017 the applicant was discharged from the medical centre. The discharge diagnosis stated the following:
“Arterial hypertension, state of crisis, high risk with chronic insufficiency of blood circulation and frequent transient ischaemic attacks in the vertebra-basilar pool. Third degree discirculatory angio-encephalopathy with ischaemic strokes in the vertebra-basilar pool and the pool of the left-middle cerebral artery with the existence of post‑stroke cysts in the midbrain, the bridge and the brainstem, with leukoaraiosis with stable residual phenomena in the form of the right–sided moderate hemiparesis, vestibulopathy, moderate disorder of walking function, with hypertensive syndrome, and frequent cephalgia. Ischaemic heart disease, tension stenocardia 2nd functional class, heart failure 1st functional class (NYHA). Multi-level degenerative-dystrophic changes of the spine, osteochondrosis of 4th degree, with hernias of C4-C5, C5-C6, C6-C7 levels, hydromyelia.
Recommendation: neurologist’s constant supervision. At the moment, he is not fit to travel. Constant administration of hypotensive and antiplatelet medication.”
On 11 January 2018 a neurologist in the neurology department of another medical centre examined the applicant and confirmed the diagnoses set out in the conclusion of 28 December 2017. In addition, the neurologist affirmed the recommendation in favour of not transferring the applicant in the following terms:
“... at the moment, transfer by air or land is contra-indicative, as any change in pressure (take-off, landing, being in a confined space for a long time, oxygen scarcity, motion sickness, any sudden and quick movements) can worsen the state of the disease, which threatens not only the patient’s health, but also his life.”
2. The applicant’s request under Rule 39 of the Rules of Court
On 18 August 2017 the applicant requested the Court, under Rule 39 of the Rules of the Court, to indicate to the Government to stay his extradition to Russia until the Court has examined the merits of his complaints.
On 21 August 2017 the Court (the duty judge) decided to grant the applicant’s request under Rule 39, provided that the domestic courts reached a final decision on his extradition to Russia, and to indicate to the Government of Armenia to stay the applicant’s extradition until further notice.
On 30 November 2017 the applicant informed the Court that the domestic courts had reached a final decision to extradite him to Russia.
On the same date the Court (the duty judge) decided to indicate to the Government, under Rule 39 of the Rules of Court, that until further notice the applicant should not be extradited. In the meantime, the Court (duty judge) decided, under Rule 54 § 2 (a) of the Rules of Court, to ask the Government to respond to the following questions by 15 December 2017:
“1. What practical steps, if any, have been taken for the applicant’s effective transfer to the Russian Federation?
2. If steps have been taken, when and how will the applicant be transferred (by air, land)?
3. Will the applicant be provided with medical assistance during the journey? If so, please provide details.
4. Is there a medical protocol for handing over the applicant to the Russian authorities upon arrival?”
On 14 and 22 December 2017 the Government submitted their reply. They relied on the letters of 12 and 14 July and 14 December 2017 filed by the Russian authorities, assuring them that the applicant would be provided with requisite medical care during his journey to Russia and, if convicted, while serving his sentence.
On 15 January 2018 the applicant submitted his comments on the Government’s reply. He maintained that the Government’s reliance on the general assurances obtained from Russia was insufficient for discontinuing the measure granted by the Court, considering the seriousness of his illnesses as attested by various medical professionals. He also relied on the medical advice on refraining from transferring him to Russia either by air or land and the potential risks of such transfer indicated by doctors.
COMPLAINTS
The applicant complains that his extradition to Russia would be contrary to the requirements of Articles 2 and 3 of the Convention, considering the medical evidence about the risks of his transfer.
QUESTION TO THE PARTIES
Would the applicant’s extradition to the Russian Federation breach his rights under Articles 2 and 3 of the Convention, considering the medical evidence about the risks entailed by his transfer?
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