Last Updated on June 24, 2021 by LawEuro
Information Note on the Court’s case-law 252
June 2021
Khachaturov v. Armenia – 59687/17
Judgment 24.6.2021 [Section I]
Article 3
Extradition
Decision to extradite applicant unfit for travel, even with medical supervision, due to severe health condition: extradition without proper assessment of transfer risks would entail a breach
Facts – The applicant, a Russian national of Armenian origin, faced extradition from the Armenian authorities to Russia where criminal proceedings for attempted bribe-taking were pending against him. The applicant unsuccessfully challenged the extradition decision which became final on 30 November 2017. On that date the Court granted his request for an interim measure under Rule 39 of the Rules of Court and, after considering the parties’ submissions on the issue, on 6 February 2018, decided to maintain the measure. Relying on Articles 2 and 3 of the Convention, the applicant claimed that his medical condition did not render him fit for being transferred either by air or land.
Law – Article 3: The core issue in the present case was whether the transfer for the purpose of extradition of the applicant, who was seriously ill, might, in itself, have resulted in a real risk of his being subjected to treatment contrary to Article 3. Indeed, the transfer of an individual whose state of health was particularly poor might, in itself, result in such a risk. However, the assessment of the transfer’s impact required a case-by-case assessment of the individual’s medical condition as well as the specific medical risks relied upon and substantiated by specific medical evidence, in the light of the conditions of that particular transfer. This assessment had to be made in relation to the person’s medical condition at a particular point in time, considering that the specific risks substantiated at a certain moment could, depending on whether they were of a temporary or permanent nature, be eliminated with the passage of time in view of developments in that person’s state of health.
Taking into account the above, the Court observed as follows as to the present case:
As to the applicant’s actual medical condition and medical risks – the applicant had provided detailed medical information obtained from different doctors, including the chief neurologist of Armenia, attesting to severe disorders of cardiovascular and nervous systems and the associated risks if he were to travel. Specifically, he had suffered from the effects of a past stroke and a further stroke or a heart attack had been considered as a possible development should he travel by air or land. This diagnosis, and the potential travel risks had been subsequently confirmed by the head of the neurological department of a hospital in Yerevan. Following a later hospitalisation and a diagnosis with additional conditions, his unfitness for travel had been further confirmed. No evidence had been put forward to doubt the credibility of this information. The authorities, albeit expressing doubts as to the applicant’s medical condition and the claimed risks, had not, inter alia, initiated their own assessment of his state of health, questioned the reliability of the medical certificates submitted or the credibility of the medical professionals who had issued them. The Court found it therefore established that the applicant suffered from serious cardiovascular and neurological disorders with associated conditions as described therein.
As to the specific medical risks his transfer could entail – there had been no indication that the Prosecutor General had had any medical documents on the applicant’s state of health when taking his decision, although by then the applicant had already been transferred to the Central Prison Hospital due to the deterioration of his health. Notwithstanding, the applicant had submitted the relevant medical evidence before the Court of Appeal but his arguments concerning the risks of his transfer had been rejected with reliance on the assurances provided by the Russian authorities concerning availability of medical supervision during and after his transfer rather than as a result of a careful scrutiny of his medical condition and the alleged transfer risks. Notably, that court had refused his request for an appointment of a forensic medical expert to examine his state of health. In fact, the Government had admitted that the domestic courts had upheld the Prosecutor General’s decision without having had in their possession an impartial and unbiased medical opinion concerning the potential risks of the applicant’s transfer provided that constant medical supervision was ensured. Thus, despite objective medical evidence by the applicant showing the particular seriousness of his state of health and the possible significant and irreversible consequences to which his transfer might lead, the domestic courts had failed to properly assess the risks that such consequences could occur.
As to the subsequent factual information submitted by the parties, that had not been available at the time of the final extradition decision, about his medical condition and the risks of its deterioration if transferred – this had confirmed the applicant’s unsuitableness for travel. Amongst other things, a medical panel convened by the Minister of Health had expressed the opinion that the high risks associated with the applicant’s transfer by air or land were linked to his chronic diseases and their possible unpredictable aggravation whereas the presence of an accompanying doctor could not eliminate those risks since emergency medical care in a specialist medical institution might become necessary should his health sharply deteriorate. In connection to the latter, the Court noted that the Government’s position with regard to the enforcement of the extradition decision in view of that panel’s conclusion remained unclear, in particular as to whether or not its findings would have an impact on their decision to proceed with the applicant’s extradition.
The Court also observed that the Government had not substantiated their claims of an “established practice” that an extradition decision would be executed only upon confirmation of the Central Prison Hospital that the person concerned was medically fit for travel; or that the extradition decision would only become final once the accompanying doctor of the receiving state had examined the applicant and confirmed that he was fit to travel. Further, in so far as the Government relied on the assurances by the Russian authorities, given that these seemed to have been limited merely to the availability of medical supervision during the applicant’s transfer, they alone could not provide a sufficient basis for the Court to conclude that the anticipated conditions of the transfer would remove the existing risk of a significant deterioration in the applicant’s health if his removal from Armenia were to be effected while his state of health was as indicated by the latest information before it.
In several previous cases concerning the enforcement of removal orders in respect of individuals who could be exposed to risk during transfer, the Court had underlined the importance of the existence of a relevant domestic legal framework and procedure whereby the implementation of a removal order would depend on the assessment of the medical condition of the individual concerned. However, in the present case no such legal safeguards or procedure had been shown to exist. The Court was not convinced that such an assessment by the Russian authorities immediately before the transfer, even if carried out, would be capable of adequately addressing the risks to which the applicant could be exposed in the absence of any indication of the extent of such an assessment and – in the absence of any legal regulation of the matter – its effect on the binding nature of the final extradition decision.
Accordingly, as matters stood at the time of the finalisation of the parties’ observations exchange, there had been sufficient information to conclude that, in view of the applicant’s particularly poor state of health, his transfer, even in the presence of an accompanying doctor, would result in a real risk of him being subjected to treatment contrary to Article 3. In reaching this finding, the Court was mindful of the particular context of extradition and the importance of not undermining its foundations; in particular, the presence of third-party rights required that in the examination of whether there existed a concrete and individualised risk of ill-treatment, negating the requested State’s ability to surrender a person, the requested State had to rely on a solid factual basis to support a finding that the required threshold of risk was met.
The Court concluded that there would be a violation of Article 3 of the Convention if the applicant was extradited to Russia without the Armenian authorities having assessed the risk faced by him during his transfer in view of the information as to his state of health.
Conclusion: violation in event of extradition without assessment of risk to health (unanimously)
The Court also found that there was no need to examine the complaint under Article 2.
Article 41: finding of violation sufficient in respect of non-pecuniary damage.
The interim measure indicated under Rule 39 would remain in force until the present judgment became final, unless the Court were to take a further decision in this connection.
(See also Soering v. the United Kingdom, 14038/88, 7 July 1989; Karim v. Sweden (dec.), 24171/05, 4 July 2006; Al-Zawatia v. Sweden (dec.), 50068/08, 22 June 2010; Imamovic v. Sweden (dec.), 57633/10, 13 November 2012; Paposhvili v. Belgium [GC], 41738/10, 13 December 2016, Legal Summary; Romeo Castaño v. Belgium, 8351/17, 9 July 2019, Legal Summary)
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