Communicated on 23 September 2020 Published on 12 October 2020

FIRST SECTION

Application no. 54684/19 Gagik KHACHATRYAN against Armenia lodged on 18 October 2019

STATEMENT OF FACTS

The applicant, Mr Gagik Khachatryan, is an Armenian national who was born in 1955 and lives in Yerevan. He is represented before the Court by Mr A. Ghazaryan and Mr W. Bourdon, lawyers practising in Yerevan and Paris respectively.

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

The applicant is a former high-ranking Government official. In particular, from 2008 to 2014 the applicant was head of the State Revenue Committee and from 2014 to 2016 he was Minister of Finance. He suffers, inter alia , from spinal stenosis, myelopathy, radiculopathy and hypertension.

According to the applicant, between 2015 and 2018 he was diagnosed with several serious disorders, including cervical spinal stenosis with myelopathy and lumbar spinal stenosis.

It appears that from 2015 the applicant was regularly treated at Ortho Centrum Hamburg, a specialist orthopaedic clinic in Hamburg, Germany (hereafter - the Hamburg clinic).

It further appears that in April 2015 the applicant underwent knee arthroscopy at the Hamburg clinic and that in April 2018 he underwent spinal surgery with decompression of the spinal canal and disc replacement at the same clinic. It also appears that until February 2019 the applicant underwent several sessions of mandatory post-surgical rehabilitation treatment, again at the same clinic.

On 1 February 2019 the applicant ’ s treating doctor in Germany, Professor Doctor N.H. (hereafter - doctor N.H.), issued a note stating that the applicant was being treated at the Hamburg clinic and that his next medical check-up was scheduled for the first half of April 2019.

On 2 February 2019 the Investigative Department of the National Security Service (the NSS) instituted criminal proceedings on account of abuse of office by several officials of the State Revenue Committee.

It appears that the applicant, who was in Germany at the time, was summoned to Armenia in relation to those proceedings.

It further appears that on 10 February 2019 the applicant interrupted his treatment and returned to Armenia.

According to the applicant, a number of investigative measures were then carried out with his participation and each time he properly appeared before the investigating authority.

On 13 March 2019 investigator A. of the Special Investigative Service (the SIS) charged the applicant with embezzlement in connection with a different set of criminal proceedings. On the same day A. applied, in respect of the applicant, a written undertaking not to leave the country as a preventive measure.

In a note issued on 8 April 2019 doctor N.H. reminded the applicant of medical examinations scheduled for mid-April in order to plan his further treatment. The doctor stressed the importance of those examinations to avoid irreversible and severe neurological complications.

On 10 April 2019 the applicant, referring to doctor N.H. ’ s above ‑ mentioned note, applied to A. seeking authorisation to leave for Germany from 13 to 27 April 2019 for medical treatment. The outcome of this request is not known.

On 30 May 2019 the applicant made a similar application to A., this time also referring to two further letters from doctor N.H. dated 24 May 2015 and seeking authorisation to leave for Germany from 6 to 16 June 2019.

On 5 June 2019 the Head of the SIS requested the Minister of Health to indicate whether it was possible to organise the applicant ’ s examination and treatment in Armenia, considering the medical evidence available, namely the medical certificates from the Hamburg clinic and the results of the applicant ’ s medical examinations.

On 6 June 2019 A. informed the applicant that the examination of his application of 30 May 2019 had been postponed pending clarification of the circumstances which were essential for the treatment of the application.

On 24 June 2019 the applicant complained to the Prosecutor General about A. ’ s response of 6 June 2019 and requested permission to leave for Germany. The outcome of this request is not clear.

On 3 July 2019 the Minister of Health convened a medical panel consisting of five doctors which was requested to determine the applicant ’ s state of health and to indicate whether his medical examinations and treatment could be provided in Armenia. For that purpose, the applicant was requested to undergo an EMNG examination.

On 4 July 2019 the medical panel which included, inter alia , doctors V.A., the adviser to the Minister of Health in the field of neurosurgery, K.M. and Ka.M ., the head of the spinal pathology department of Erebuni Medical Centre, issued its opinion noting negative dynamics in the applicant ’ s medical condition. The panel concluded that the applicant ’ s medical examinations could be organised in Armenia. As regards the necessary treatment, the panel noted the following;

“... the given clinical condition requires further surgery for the purpose of correction of stenosis and decompression of the spinal cord. However, during the first operation an intervertebral disc endoprosthesis was placed in the patient which requires a relevant set of surgical instruments, unavailable in Armenia, for a further medical intervention... Each intervertebral endoprothesis has its own set of specific instruments which is not applicable for other types of endoprothesis . Such endoprothesis has not been used in Armenia.”

According to the applicant ’ s submission, both he and the investigative body were served with a copy of the panel ’ s conclusion of 4 July 2019 only during the detention hearing at the end of August.

On 9 July 2019 the applicant underwent an MRI scan at Astghik Medical Centre. The results of this examination were provided to the members of the medical panel of 4 July 2019.

Having regard to the fact that the medical panel convened on 3 July 2019 had not included a specialist in diagnostic radiology, the results of the applicant ’ s medical examinations, including those of the MRI scan of 9 July 2019, were forwarded to an expert group of four radiologists for their opinion. Having compared the post-surgical and the most recent examination results, in their opinion of 31 July 2019 the expert group observed the removal of disc hernia and thereby noted a positive dynamic. The doctors concluded that the applicant was not suffering from spinal stenosis, spinal cord compression or atrophy.

On 5 August 2019 the medical panel convened on 3 July 2019 and an EMNG specialist re-examined the applicant ’ s medical data. The panel noted that the observed aggravation of the applicant ’ s medical condition was not based on the objective results of a medical examination but rather on the applicant ’ s health complaints. The panel reaffirmed the need for the applicant to have further surgery to correct the stenosis. The panel restated that, even though the applicant ’ s medical examinations could be carried out locally, as had already been the case, to the best of their knowledge the requisite surgical instruments required for the applicant ’ s further surgery were not used in Armenia.

On 9 August 2019 doctor N.H. addressed a note in German to the Minister of Health of Armenia. According to its Armenian translation provided by the applicant, doctor N.H. would have noted the vital importance for the applicant to be treated by him stating, inter alia , the following:

“When I tried to enquire about the causes for [the applicant] not returning to Germany for reasons not understandable to me ... I found out to my surprise that he is currently undergoing medical examinations in medical institutions in Armenia. The situation is not understandable to me since I have operated on [the applicant] and considering the negative dynamics aggravating the course of his disease I opine that there is a high risk of his disability in the form of weakening of his extremities and dysfunction of pelvic organs. I should also note that the interruption of the [the applicant ’ s] treatment for a long period of time could bring about ... a need for further surgery. The given situation is a real threat to [the applicant ’ s] life”.

According to the translation, Prof. Doctor A.G. from the Hamburg clinic also signed this note.

On the same date the applicant submitted another application to A. seeking permission to leave for Germany, relying in addition on the doctor ’ s note of 9 August 2019.

On 19 August 2019 the applicant lodged a complaint with the Prosecutor General, the Head of the SIS and the Minister of Health arguing that the medical certificates issued by his treating doctors in Germany had not been adequately addressed by the competent authorities. He asked for the results of his medical examinations to be provided immediately and to be allowed to travel to Germany for the time necessary for his medical examinations and treatment.

On 26 August 2019, in response to the applicant ’ s applications of 9 and 19 August 2019, A. stated that those would be addressed after clarification of the relevant circumstances.

On 27 August 2019 the applicant was arrested.

On 28 August 2019 G.M., the NSS investigator in charge of the case instituted on 2 February 2019, charged the applicant with abuse of authority and embezzlement causing grave damage.

It appears that on the same date G.M. applied to court seeking a detention order in respect of the applicant on the grounds that there existed a high risk of his absconding having regard to the nature and gravity of the charges, as well as tampering with witnesses and obstructing the investigation considering that a number of witnesses were his friends, family members and persons connected with his family members. Furthermore, other witnesses who were still to be questioned were also persons connected with the applicant and, considering the latter ’ s authority, there was a risk that he could exert pressure on them .

On 29 August 2019 the applicant was taken to the Court of General Jurisdiction of Yerevan (hereafter, the Yerevan Court) for the examination of his complaint challenging the grounds for his arrest and the investigator ’ s application seeking his detention. According to the applicant, during the hearing he became unwell and, as it was already past midnight, the hearing was interrupted and he was taken back to the detention facility. Thereafter the applicant ’ s treating doctor M.Y., a neurosurgeon at Erebuni Medical Centre, visited him at 2 a.m. and noted that he felt weakness in his limbs and complained of pain in the spine, neck and head as well as of pelvic floor dysfunction. He indicated that the applicant needed an MRI (magnetic resonance imaging) scan, as well as other examinations and warned that undue delay could lead to unpredictable complications, including disability.

According to the applicant, in the following morning, namely 30 August 2019, his lawyer requested that the prescribed medical examinations be carried out, but instead he was taken back to the Yerevan Court to continue with the detention hearing. During the hearing the applicant felt severe pain in his limbs and a doctor was invited to the courtroom at his request. According to the doctor ’ s report, dysfunction of amplitude in the applicant ’ s hands as well as an unsteady gait were observed. He indicated that the applicant should undergo a new MRI examination as soon as possible.

According to the applicant ’ s submission, he then requested permission from the court to undergo the required MRI scan, but it was considered that this could be done after the determination of the applications at issue. Once the time-limit of the applicant ’ s arrest expired, he left the courtroom while the court was still deliberating and went to Astghik Medical Centre for an MRI scan. Based on the results which showed, inter alia , that the applicant had suffered an ischaemic stroke within the preceding two weeks, the doctors, including M.Y., indicated that the applicant needed a carotid artery duplex scan , EMNG (electromyoneurography) of all limbs and, if necessary, a cranial CT (computed tomography) scan. According to the doctors, at that point there was no reason for the applicant ’ s urgent hospitalisation and it would be possible to reach a definite conclusion based on the results of those examinations.

On the same date the NSS ordered a forensic medical examination by a commission of experts to determine whether the applicant suffered from a disease and, if so, whether it was compatible with detention.

On the same date doctors N. H. and A.G. issued a medical statement in English which was signed by doctor N.H. That statement read, inter alia , as follows:

“[The applicant] has been treated in our institution for many years. Most recently in April 2018 spine surgery was urgently scheduled and necessary because of rapid progressive clinical deterioration, with spinal ataxia due to significant cervical and lumbar spinal stenosis. We agreed on a staged procedure and a minimised surgical intervention. We also agreed that this procedure might be followed by a more complex surgery following constant clinical follow up visits – until February 2019 this constant supervision and control has been performed... [The applicant] has been scheduled for complex cervical and thoracolumbar treatment including invasive interventions ... which is urgently needed for preventing severe and irreversible spinal cord damage.

... I was quite surprised to learn that he is now under medical management in Armenia. It is a simple medical rule to continue treatment in a specialised institution to its end, not only because of medical files, implants etc. ... but also to guarantee best medical outcome – which is one of the most important human rights worldwide.

We will have to restart medical surveillance of the spinal columns, the hip, knee and shoulder ... Interventions should be scheduled as fast as possible to prevent permanent damage including complex spine surgery and pain interventions.”

By a decision of the same date the Yerevan Court acknowledged the unlawfulness of the applicant ’ s arrest on the grounds that he had been arrested in the absence of the purposes and grounds set out by law. At the same time, it allowed the applicant ’ s detention for a period of two months and refused the applicant ’ s request to be released on bail. It found, in particular, that the materials provided by the investigating authority, specifically the statements of seven witnesses and the documentary and forensic evidence submitted were sufficient to conclude that there existed a reasonable suspicion that the applicant had committed the crimes with which he had been charged. As for the grounds for the applicant ’ s detention the Yerevan Court stated, in particular, that the material submitted was sufficient to conclude that the applicant, if at large, could demonstrate unlawful behaviour. It found that the applicant could be placed in detention considering the nature and degree of dangerousness of the offences imputed to him as well as the gravity of the potential punishment and the existence of the reasonable suspicion that he had committed those offences.

On 31 August 2019 the applicant was admitted to Yerevan- Kentron detention facility.

On 9 September 2019 the applicant lodged an appeal against the decision of 30 August 2019 arguing, inter alia , that the Yerevan Court had failed to address the issue of his worsening state of health.

On 30 September 2019 the Criminal Court of Appeal (hereafter, the Court of Appeal) upheld the Yerevan Court ’ s decision of 30 August 2019.

On 17 October 2019 the applicant ’ s charges were supplemented by additional episodes of abuse of authority and embezzlement.

On the same date the head of the investigative group submitted an application to the Yerevan Court seeking an extension of the applicant ’ s detention until 27 December 2019. According to this application a number of other circumstances, including commission of other crimes, legalisation of illegally obtained property, the origins of various pieces of property owned by the applicant and his affiliates were still to be clarified. Against that background, it was considered that there was a high risk that the applicant, if at large, could obstruct the investigation by putting pressure on the other participants in the proceedings, including persons who had not yet been questioned. It was also stated that the gravity of the charges, the fact that, as found out during the investigation, the applicant and his family members owned property abroad, including a flat, and his family members were abroad, raised the risk that he could abscond. Furthermore, the offences imputed to the applicant involved public officials as well as employees of private companies who had personal, functional and material dependency on the applicant who, if at large, could use his personal connections and financial resources to put pressure on them. Lastly, it was considered that the applicant could obstruct the investigation by concealing and falsifying materials which were yet to be seized from state institutions where the applicant still had authority and where persons who had been involved in the offences already imputed or to be imputed to the applicant still held public positions.

On 23 October 2019 the applicant lodged an appeal on points of law against the Court of Appeal ’ s decision of 30 September 2019.

On 24 October 2019 the Yerevan Court extended the applicant ’ s detention by two months. In doing so, it noted that the offences imputed to the applicant and the factual circumstances concerning his personality stemming from the investigating authority ’ s application, as well as the need for further investigative and procedural measures, the nature and degree of dangerousness of the relevant offences and the gravity of the potential punishment, continued to support the risk that the applicant, if at large, could obstruct the investigation by exerting pressure on the other participants in the criminal proceedings. As for the other grounds for the extension of the applicant ’ s detention relied on by the investigating authority, the court found that those had not been duly substantiated. Lastly, the court noted that the investigating authority had sufficiently demonstrated that it had been diligent in carrying out the relevant investigative measures to avoid unnecessary delays in the investigation. The applicant ’ s request to be released on bail was refused.

On 4 November 2019 the applicant lodged an appeal against the Yerevan Court ’ s decision of 24 October 2019.

On 6 December 2019 the Court of Appeal upheld the Yerevan Court ’ s decision of 24 October 2019. In so far as the applicant ’ s medical condition was concerned, the Court of Appeal noted that it was not per se a ground for release from detention, considering that the applicant had the possibility of being provided with in-patient medical treatment if necessary.

By a decision of 19 December 2019 the Court of Cassation refused to admit for examination the applicant ’ s appeal on points of law against the Court of Appeal ’ s decision of 30 September 2019.

On 25 December 2019 the Yerevan Court extended the applicant ’ s detention for a further two-month period. In doing so, it found that there was a high probability of the applicant being able to exert pressure on the witnesses, if at large, considering that most of the witnesses had had work ‑ related or personal dependence on him while some of them were his friends or family members. At the same time, it found that the risk of absconding and obstructing the investigation by means of concealing or falsifying materials, as claimed by the prosecution, had not been duly substantiated. The applicant ’ s request to be released on bail was again refused.

On 1 January 2020 the applicant lodged an appeal against the Yerevan Court ’ s decision of 25 December 2019 arguing, inter alia , that his measure of constraint should be changed, considering his medical condition.

On 29 January 2020 the applicant lodged an appeal on points of law against the Court of Appeal ’ s decision of 6 December 2019.

By a decision of 6 February 2020 the Court of Appeal refused the applicant ’ s appeal against the Yerevan Court ’ s decision of 25 December 2019.

On 24 February 2020 the applicant lodged an appeal on points of law against the Court of Appeal ’ s decision of 6 February 2020.

On 2 September 2019, with reference to the doctors ’ instructions of 30 August 2019, the applicant requested G.M. and the administration of the detention facility to organise immediately his required medical examinations and treatment.

On 4 September 2019 G.M. replied that the investigating authority had no objection to the request of 2 September and instructed the administration of the detention facility to ensure the applicant ’ s medical examinations as required.

On 6 September 2019 the applicant was examined at Astghik Medical Centre. It was considered that there was no need for a CT scan of the head and neck, while an EMNG of all limbs was recommended.

By his letter of 9 September 2019 the Minister of Health informed the SIS that, following the conclusion of the medical panel of 4 July 2019, the panel had re-examined the applicant ’ s medical file and once again come to the conclusion that the applicant needed to have further spinal surgery abroad for the correction of stenosis and decompensation of the spinal cord. The Minister of Health noted that, in those circumstances, a more precise reply could be obtained within the scope of a forensic examination.

In a letter of 12 September 2019 the applicant ’ s physiotherapist noted that the applicant had been assigned courses of physiotherapy based on the MRI scan results. He further stated that, considering the applicant ’ s diagnosis, his full rehabilitative treatment could not be carried out in an out ‑ patient clinic.

On 27 September 2019 doctor N.H. issued a note in English stating, in particular, the following:

“... if [the applicant] does not immediately return to the Federal Republic of Germany and continue his treatment, there may probably be a necessity for a second surgery, as well as a disability in a form of the weakening of limbs and disorder of the functions of the pelvic organs.

Currently studying the [medical opinions of 4 July and 5 August 2019] ..., it is obvious that my worries are real now, and as a result of not receiving a mandatory post-surgical rehabilitation treatment a necessity may emerge for the secondary surgery ... The mentioned surgery cannot be performed in [Armenia]...

The delay of the adequate therapy puts the patient into a high risk candidate for irreversible damage to the myelon which forces him into a wheel chair...

... the mentioned surgery can be performed at [the Hamburg clinic] ... where the similar first surgery was performed for [the applicant].”

On the same date doctors N.H. and A.G. issued a joint medical opinion. The relevant parts of the English translation of their opinion read as follows:

“... the now-described findings of the [Armenian] colleagues show a clear negative dynamic in the sense of a recurrence of cervical myelopathy with now-existing grip and gait uncertainty. This may be due, on the one hand, to the non-regular rehabilitation measures. However, there is also an image of morphological progression of myelopathy ...

[Doctor N.H]: I think this is the mixed picture of the previously known cervical and lumbar problems... an additional evaluation of the lumbar spine should be carried out. This would certainly be considered in addition to the inevitable surgical relief of the cervical spine... the clinical and radiological findings described by Armenian colleagues represent a significant progression of myelopathy ...

It is expected that cervical revision surgery and extension will become necessary ... This should be done promptly ...

... an operative team of neurosurgery and orthopaedic specialists of the spinal column [is necessary]... post-operative rehabilitative measures must also be taken into account... In addition to the revision of the existing implants, the decision as to whether the implant must be left or revised and then expanded ... is required... The appropriate instrumentation for implantation and explanation must be available ...

The thoracolumbar instrumentation and decompression ... is a complicated spine operation that can now be offered by a few institutions...the techniques and implants used [in the Hamburg clinic] are very innovative and generally inaccessible. Since [doctor N.H.] is involved in this international development and consulting group, he is able to gain access to these innovative implants.

... It is also known that ... gliosis, as described by colleagues from Armenia, is a very serious situation, namely that it is already irreversible structurally-established spinal cord damage ... A timely and extensive action is a condition sine qua non to avoid lasting damage ...”

On 2 October 2019 the administration of the detention facility issued a medical certificate according to which the applicant, who complained of pain in the same area, was under constant medical supervision by the medical personnel. In addition, the applicant was being provided with pain relief while no surgery could be performed at the detention facility and, if necessary, the detainees were transferred to relevant medical institutions.

From 10 to 14 October 2019 the applicant underwent medical examinations at Surb Grigor Lusavorich Medical Centre, a public hospital, for the purposes of the forensic medical examination ordered on 30 August 2019.

On 18 October 2019 the applicant submitted a request under Rule 39 of the Rules of Court requesting that the Court indicate to the respondent Government to authorise his travel to Germany for urgent medical treatment.

On 24 October 2019 the Court (duty judge) decided to request factual information from the Government concerning the applicant ’ s state of health. In particular, the Government were requested to answer the following questions:

“1. What type of medical treatment does the applicant need to receive in view of his current state of health (post-surgical rehabilitation, further surgery etc.)?

2. Is the type of medical treatment required by the applicant ’ s current health condition available in Armenia and, if not, is it possible to organise the given treatment there?

The Government are requested to provide copies of the results of the applicant ’ s most recent medical examinations (medical reports, the conclusions of medical panels which were referred to in the letter of the Minister of Health of 9 September 2019, results of forensic medical examinations, if available, and other relevant medical evidence).”

On 24 October 2019 a commission of three experts delivered its report within the framework of the forensic medical examination ordered on 30 August 2019. The experts, all of them representing the Centre for Criminal Executive Medicine under the Ministry of Health, including G.H., the head of its Department for complex forensic examinations, found that the applicant suffered from, inter alia , the following: right vertebral artery hypoplasia with decreased blood flow velocity in the vertebrobasilar pool; degenerative-dystrophic changes in the cervical and lumbar areas of the spine, spinal stenosis at C 5- C 6 level (cervical vertebrae), myelopathy, radiculopathy C 5- C 6 with moderate neuromuscular pain syndrome. The experts noted that the diseases reflected in the above-mentioned diagnosis were not included in the list of diseases exonerating from detention. At the same time, they stated that the compatibility of the applicant ’ s detention with his state of health should be determined by an inter-agency medical commission.

On 29 October 2019 the head of the investigative group ordered an additional forensic medical examination by an inter-agency commission of experts to determine the compatibility of the applicant ’ s detention with his health condition. The investigator also requested the panel to specify the necessary medical acts in view of the applicant ’ s diagnosis and the possibility of providing him with adequate medical care, including inpatient treatment at a civilian hospital, considering the imposed preventive measure.

On 29 October 2019 the applicant ’ s lawyer notified the head of the detention facility about the worsening of the applicant ’ s health and that he had fallen because of weakness in the limbs, requesting information about the applicant ’ s medical treatment.

On 30 October 2019 the administration of the detention facility replied that the applicant was under everyday medical supervision. He constantly complained of numbness and pain in his neck, spine, upper and lower extremities and insomnia. The applicant was provided with relevant medication as prescribed by his doctors. On 28 October 2019 the applicant complained of headache and dizziness. Hemodynamic symptoms were noted without any deviations. On 30 October 2019 the applicant experienced epigastric pain during the night which had been related to food ingestion. The night shift medical staff had provided him with appropriate assistance and he was examined by doctors in the morning. The applicant ’ s state of health was considered to be satisfactory. At the same time, the applicant expressed a wish to be examined by a doctor of his choice.

On 31 October 2019 M.Y. examined the applicant at the detention facility and observed an exacerbation of the applicant ’ s neurological condition which, in his opinion, called for surgical intervention as soon as possible.

On 13 November 2019 doctors N.H. and A.G. issued a joint statement where, relying on M.Y. ’ s medical opinion of 31 October 2019, they warned that failure of the applicant to undergo cervical and thoracolumbar spinal surgery would probably lead to paresis of the limbs as well as impaired pelvic function and bladder control.

On 14 November 2019 the Court (duty judge) decided to request supplementary information from the Government. In particular, the Government were requested to answer the following questions:

“Having regard to the applicant ’ s current state of health, as determined by the relevant medical panels and the forensic medical experts, is there an urgent need for him to undergo a further surgery? If so, is it possible to organise the required surgical intervention in Armenia?

The Government are requested to provide relevant evidence containing conclusive and unequivocal medical data in this respect.

If a further surgery is not required, is there any valid medical evidence certifying that the suitable treatment for the applicant at this stage is non-surgical therapy? If so, the Government are requested to specify whether the requisite therapy is available or could be made available to the applicant in Armenia.”

On 18 November 2019 doctor Ka.M ., who had been on the medical panel of 3 July 2019, issued a note indicating that in general it was important for patients diagnosed with the applicant ’ s disease to undergo further surgery as soon as possible, since constant negative dynamics could lead to irreversible consequences where further surgery could no longer be effective. He further specified that, as previously noted by the applicant ’ s German doctors, in such cases there was a strong possibility that a delay could result in deterioration of fine motor skills, lead to unsteady gait, to transverse myelitis and even disability.

On 19 November 2019 additional questions were put to the inter-agency commission, which in essence reflected the questions specified in the Court ’ s supplementary information request of 14 November 2019.

On the same date the inter-agency commission of experts, composed of G.H., A.K., the deputy head of the Police medical department, A.C., professor at the State Medical University and adviser to the Minister of Health in the field of traumatology and orthopaedic surgery, Gu.H ., professor at the State Medical University and practising neurologist at Surb Grigor Lusavorich Medical Centre and D.P., a neurosurgeon practising at a private hospital, delivered its report. The commission found, in particular, that the applicant ’ s medical condition as well as his medical and objective examination results indicated that his current state of health (diagnosed diseases) was compatible with his detention. Accordingly, while in detention, the applicant could receive appropriate medical care being under medical supervision and undergoing only symptomatic treatment (painkillers upon prescription). If necessary, the applicant could also be transferred to civilian hospitals for medical examinations and treatment. In response to the supplementary questions, the commission stated, in particular, the following:

“ the [applicant] in his current state of health (according to the medical documents and examination results) does not need surgical intervention. The [applicant ’ s] current state of health does not call for surgical treatment, but he needs, if necessary, symptomatic treatment which it is possible to organise both in the medical facilities of the detention centres and in the civilian hospitals of Armenia”.

On the same date doctor V.A., who had been a member of the medical panel of 3 July 2019, issued a note stating that the applicant ’ s further surgery should be performed as soon as possible and any delay might lead to dangerous and irreversible consequences for his health.

On 30 November 2019, upon the applicant ’ s request, doctor N.H. strongly recommended that extension of the neck, as well as chest and lumbar alignment, correction and improvement of the spine be performed as soon as possible. He noted that the applicant ’ s state of health required surgical intervention since the endoprosthesis in place needed to be fixed and it might be necessary to change it and insert a new one. As regards the proposed symptomatic treatment, he stated that such treatment could only alleviate the applicant ’ s pain temporarily. It could not be considered an ultimate treatment for his disease or to prevent potential irreversible consequences, such as pelvic dysfunction and disability.

On 5 December 2019 the Court (duty judge) decided to refuse the applicant ’ s request for an interim measure.

On 11 January 2020 the applicant experienced heart problems and received emergency treatment.

On 13 January 2020 the applicant was examined by doctors of his choice - a neurologist and a gastroenterologist from Astghik Medical Centre and a cardiologist from “ Shengavit ” Medical Centre - who indicated the need for several medical examinations, including an MRI of the brain, an ultrasound imaging of the abdomen and thigh and urgent recoronarography .

On 15 January 2020 the head of the medical unit of Yerevan- Kentron detention facility issued a medical certificate noting that the applicant constantly complained of headaches, pain in the spine and pain and numbness in the upper and lower extremities. He had experienced blood pressure fluctuations on 5 January 2020 and been given hypotensive medication.

On the same date the applicant was admitted to Astghik Medical Centre to undergo the examinations recommended on 13 January 2020.

On 21 January 2020 a medical panel composed of various specialists of Astghik Medical Centre and doctor M.Y. issued a joint opinion about the applicant ’ s state of health. In particular, the panel noted an increase in weakness in the muscles of the lower extremities compared to the previous examination, myocardial bridge, hypertension and gastritis, among others. As for the neurological conclusion, the panel noted an MRI-confirmed lacunar ischaemic stroke with vertebrobasilar insufficiency, compression of the cervical spine at C 5- C 6 cervical vertebra and L4-T1 thoracic vertebra levels. The panel made the following conclusion:

“Considering the dynamic worsening of the spinal pathology, it is necessary to discuss the question of follow-up surgery, pending which conservative complex treatment including physiotherapeutic rehabilitative (shockwave therapy) in-patient treatment should be provided in the meantime.”

It appears that on 22 January 2020 the applicant was taken back to Yerevan- Kentron detention facility.

On 23 January 2020 the applicant complained to the administration of the detention facility about the interruption of his treatment at Astghik Medical Centre and asked to be transferred back to continue his conservative complex treatment, including physiotherapeutic rehabilitative (shockwave therapy) in-patient treatment, by doctors of his choice at his own expense.

It appears that on the same date the Penitentiary Medical Centre State non-commercial organisation (hereafter, the penitentiary medical service) offered to transfer the applicant to the Central Prison Hospital where State ‑ funded medical examinations and physiotherapeutic rehabilitative treatment could be provided. In addition, the applicant would have been given the opportunity to invite the doctors of his choice to supervise his treatment there.

According to a medical certificate issued by the head of the medical unit of Yerevan- Kentron detention facility on 3 February 2020, the applicant declined that offer.

On 1 and 5 February 2020 the applicant addressed complaints to the H ead of the penitentiary medical service.

On 7 February 2020 the Head of the penitentiary medical service stated that it had been suggested that the applicant be transferred to Astghik Medical Centre for further in-patient treatment.

On the same date the applicant was admitted to Astghik Medical Centre.

In response to an enquiry by the applicant ’ s lawyer of an unspecified date, by letter of 24 February 2020 the head physician of Astghik Medical Centre stated that the applicant needed outdoor exercise which should be carried out mainly with a walking aid or wheelchair.

On 28 February 2020 a medical panel composed of several specialists from Astghik Medical Centre and doctor M.Y. issued a further opinion, noting that the applicant was experiencing constant pain in the spine, numbness in the extremities, had restricted movement and progressively worsening difficulty in walking. They further noted that rehabilitative treatment had shown poor efficiency and that the issue of surgical decompression of the cervical spine remained open; pending surgical intervention he should receive conservative and rehabilitative in-patient treatment.

On 23 March 2020 the same medical panel issued another joint opinion stating that the long-term conservative treatment had produced insignificant results, which fact reaffirmed the unavoidability of surgical intervention. The panel further noted that it was desirable that the applicant be operated on using the relevant equipment, which was not available in Armenia, considering the need to replace the implant inserted in a foreign clinic.

By order of the Minister of Health of 7 April 2020 a medical panel composed of specialists from various hospitals and advisers to the Minister of Health in the fields of physical therapy, neurology and neurosurgery was convened to assess the applicant ’ s state of health. The panel also included doctors V.A., M.Y. and Ka.M .

On 8 April 2020 the panel issued a joint medical opinion according to which the applicant was suffering from spinal stenosis at C 5- C 6 level (cervical vertebrae) with developing cervical radiculopathy, polyradiculoneuropathy with muscle atrophy, moderate functional disorder of lower extremities and lacunar ischaemic pathology. The panel also noted the presence of diarthrosis in both knee joints associated with moderate standing and gait impairment and came to the following conclusion:

“Surgical treatment of spinal stenosis is required. Until surgery can be arranged, it is indicated to continue therapeutic and rehabilitative treatment – kinesiotherapy.”

On 22 May 2020 the head of the penitentiary medical service addressed a letter to the administration of Astghik Medical Centre indicating the need to terminate the applicant ’ s treatment on the grounds that his physiotherapy sessions could be organised in the detention facility with the participation of the relevant specialist.

On the same date the applicant was discharged from Astghik Medical Centre and taken back to Yerevan- Kentron detention facility, but shortly thereafter he was transferred to Vardashen detention facility and placed in a separate room situated within its medical unit.

On 25 May 2020 two French doctors specialising in orthopaedic surgery, who are medical experts practising in Paris, issued a forensic medical report on the basis of the applicant ’ s medical file. They noted that the applicant ’ s further detention in a limited space posed functional (related to his spinal and neurological condition) and vital (related to hypertension) risks to his health. They stated that the decompression surgery had to be performed as soon as possible after the development of neurological disorders, being the only way to avoid definitive functional sequelae. In addition, they noted the indispensable need for further surgery in the same specialist clinic in Hamburg or alternatively in one of the two specialist clinics in the United States and France which possess the relevant expertise. They concluded that the applicant should be rapidly examined by the surgical team of the clinic in Hamburg in order to proceed to evaluation and an urgent decision, considering his alarming state of health.

On 1 June 2020 the medical personnel of Vardashen detention facility drafted a written record stating that the applicant had refused to be transferred to Central Prison Hospital for further medical supervision and treatment.

On 2 June 2020 doctor V.A stated, in response to an enquiry from the applicant ’ s lawyer, that the applicant should be operated on as soon as possible and that to delay could cause dangerous and irreversible consequences at any moment.

On 11 June 2020 the applicant submitted a new request under Rule 39 of the Rules of Court requesting the Court to indicate to the respondent Government to transfer him to a civilian hospital and authorise his travel to Germany for urgent medical treatment. The applicant submitted, in particular, that his state of health had sharply deteriorated since the Court ’ s decision in December 2019. Hence, he was already unable to move around without a wheelchair and was at risk of rapidly losing the functionality of his upper and lower limbs. The applicant also complained of his conditions of detention in Vardashen detention facility.

On 19 June the Court (duty judge) decided to adjourn the examination of the applicant ’ s request and to ask the Government to provide factual information by 26 June 2020. In particular, the Government were asked to provide the following information:

“1. Is the applicant ’ s current state of health compatible with the conditions of his detention? In particular, is he provided with medical treatment adequate to his condition, including kinesiotherapy, and assistance in meeting his daily needs in the detention facility? If so, the Government are invited to inform the Court of the measures taken to ensure the applicant ’ s medical supervision and his daily assistance.

2. Does the applicant ’ s current state of health require his placement in a hospital for in-patient medical care?

3. Is the spinal surgery indicated to the applicant in view of his current state of health as referred to in the medical opinions of 23 March, 8 April and 25 May 2020 available in Armenia? If not, is it possible to be organised in Armenia? Your Government are asked to conduct a medical examination done by independent experts who should provide their opinion on how urgent and indispensable is the surgical intervention in question considering the alleged risks to the applicant ’ s health.”

In their submissions of 25 June 2020 the Government stated that the applicant had spent around four months in a private hospital, after which it was considered that his physiotherapy could be organised in the detention facility as, in any event, the relevant specialist of a different healthcare institution was visiting him in hospital for therapy. As regards the conditions of the applicant ’ s detention, the Government submitted that the applicant was kept alone in the medical unit of Vardashen detention facility, considering the Covid-19 situation. He was provided with all the necessary facilities, including a kitchenette, bathroom and toilet on the same floor as his room. The applicant received medication and treatment prescribed by doctors of his choice. As for physiotherapy, the Government submitted that the applicant had not submitted any request in that respect and upon filing such a request the detention facility “would facilitate the said process”. Lastly, with regard to the issue of the necessity and urgency of surgical intervention on the applicant raised in the third question put by the Court, the Government submitted that the investigator had ordered an additional forensic medical examination by an inter-agency commission of experts, pending which they were unable to answer the question at issue.

On 6 July 2020 the Government provided the forensic expert report delivered on 4 July 2020 by an inter-agency commission composed of G.H., A.K., doctors Gu.H ., D.P. and K.M. The commission was asked to assess the applicant ’ s state of health, the necessity for him to undergo urgent surgery and, if this were the case, whether the relevant surgery could be performed in Armenia, the necessity for the applicant ’ s placement in a hospital, the necessary medical treatment given the applicant ’ s state of health and the compatibility of his condition with detention, among others. The relevant conclusions of the experts read as follows:

“... in his current state of health/as determined on the basis of the examinations carried out during the current forensic medical assessment/ [the applicant] at present does not need surgical intervention.

... in case surgery is necessary, it is available and could be organised in Armenia. Considering [the applicant ’ s] current state of health, he does not need to be transferred to a hospital for in-patient treatment.

... it is possible to ensure [the applicant ’ s] adequate medical treatment while in detention, including via the possibility to receive treatment in civilian hospitals.

... [ the applicant ’ s] diseases are compatible with [detention] ...

... having regard to the diagnosis determined during the forensic medical examination [the applicant] needs symptomatic treatment [that is] treatment by medication – vitamins, painkillers, physical exercise. Such treatment can be currently provided in [detention].

... the comparison of the information clarified during the current and previous forensic medical examinations allows to conclude that in the course of the entire period of his detention [the applicant] ... has received proper medical assistance.”

On 8 July 2020 the applicant submitted his comments in reply to the information provided by the Government. He considered the expert report of 4 July 2020 unreliable due to the panel composition, since only one of the five members of the inter-agency commission was not associated with the authorities and worked for a private hospital (doctor D.P.). The applicant argued that the commission had not been provided with full and accurate medical data, including the medical opinions of 23 March, 8 April and 25 May 2020 referred to in the third question put to the Government by the Court. Lastly, the applicant submitted that already on 2 June 2020 his treating doctor had mentioned to the doctor who had examined him in the detention facility the necessity for him to receive physiotherapy. The need for physiotherapy had also been confirmed in earlier medical opinions, including those sought by the Ministry of Health, such as the opinion of 8 April 2020.

On 9 July 2020 the Court (duty judge) decided to adjourn further the examination of the applicant ’ s request and to ask the Government to provide supplementary factual information by 15 July 2020. In particular, the Government were asked to answer the following question:

“Having regard to the composition of the inter-agency commission, which delivered the forensic medical report of 4 July 2020, did the Government ensure a medical examination done by independent experts (not subordinated to state authorities) who should provide their opinion on how urgent and indispensable is the surgical intervention considering the alleged risks to the applicant ’ s health, as stated in the third question put to the Government in the Court ’ s letter of 19 June 2020?”

In their submissions of 15 July 2020 in reply to the Court ’ s request for supplementary information, the Government argued that the independence and impartiality of the experts had been ensured in line with the applicable laws and regulations. In particular, the relevant commission had been constituted in accordance with the requirements of Government Decree no. 1636-N of 4 December 2003 while the members of the commission had been informed of their rights and obligations as experts in criminal proceedings, including criminal liability for providing a false expert opinion. As to the composition of the inter-agency commission, the Government stated that three of the members of the commission were not subordinated to the authorities. As to the fact that two of those three members were doctors practising at a public hospital, the Government submitted that, despite the fact that the relevant hospital had been founded by the State, the doctors who work at that hospital were not public servants or Government employees. They also submitted that the Ministry of Health has no right to intervene in the work of an expert commission.

On 21 July 2020 the Court (the duty judge) decided to indicate to the respondent Government, under Rule 39, the following interim measure:

“To ensure that the applicant receives adequate medical care appropriate to his state of health in Armenia, including by means of in-patient treatment in a civilian hospital, if necessary. The applicant should be enabled to organise his examination and treatment by medical professionals of his choice, including foreign professionals, the latter at his own expense, in Armenia. The Armenian authorities are further requested to ensure that the applicant receives physiotherapy as indicated. The Government are requested to inform the Court of the measures taken to comply with the indicated interim measure as soon as possible, and not later than within fifteen days.”

On 24 July 2020 the head of the penitentiary medical service contacted the applicant ’ s treating neurologist at Astghik Medical Centre, informing him of the medical assistance provided to the applicant by the medical personnel of Vardashen detention facility, inviting him to acquaint himself with the applicant ’ s full medical file and suggesting a further treatment strategy.

On 27 July 2020 the medical personnel of Vardashen detention facility drafted a written record stating that the applicant had refused the services of a physiotherapist offered by the penitentiary medical service as well the offer to invite a physiotherapist of his choice or foreign specialists at his own expense on the grounds that he needed specialist in-patient treatment which could not be provided in the detention facility.

On 4 August 2020 the applicant ’ s neurologist from Astghik Medical Centre examined him at the detention facility and noted, inter alia , diminished force in the limbs and muscle atrophy of the lower extremities. In his report the doctor indicated the need to remove the implant and medical supervision by a relevant narrow specialist which was not possible in the given conditions.

Government Decree no. 1636-N of 4 December 2003 sets out the procedure for setting up inter-agency forensic medical commissions with the purpose of assessing the state of health of seriously-ill detainees in so far as issues related to exemption from serving punishment, conditional release, change of preventive measure, recognition of full or partial mental incapacity, as well as medical, including psychiatric, confinement measures are concerned. It states that in cases where the necessity of release from detention on the grounds of a serious illness is to be evaluated, the relevant inter-agency commission is set up by the state non-profit organisation “Centre for Criminal Executive Medicine” of the Ministry of Health. The commission should also include a representative of the Penitentiary Service of the Ministry of Justice and the Police. Members of the commission are appointed by order of the Minister of Health upon proposal by the Minister of Justice and the Chief of Police.

COMPLAINTS

1. The applicant complains under Article 3 of the Convention that his health deteriorated into a severe condition as a result of his detention while no adequate medical treatment and care for his specific medical condition is available either in the detention facility or in the civilian hospitals of Armenia. He complains in particular that the authorities disregarded his requests seeking permission to leave Armenia temporarily to continue his mandatory post-operative treatment in Germany. As a result, his state of health deteriorated to the extent that secondary surgery became necessary which, as confirmed by several medical opinions, could not possibly be performed in Armenia, while the authorities still failed to address his numerous requests to leave for Germany in order to receive urgent medical treatment.

2. The applicant complains under Article 34 of the Convention that the Government failed to comply with the interim measure indicated by the Court on 21 July 2020.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention? In particular:

- During the entire period of his detention, has he been provided with adequate medical assistance, in accordance with his state of health?

- Is the applicant ’ s state of health compatible with the conditions of his detention? In particular, having regard to his current condition, is he adequately assisted by the medical or other personnel of the detention facility?

- Considering the authorities ’ refusal to allow the applicant to travel abroad for requisite medical treatment, was the deterioration of his state of health before and during his detention in breach of Article 3 of the Convention?

In so far as the applicant ’ s treatment strategy is concerned, the Government are requested to explain the discrepancies between the forensic expert reports of 19 November 2019 and 4 July 2020 sought within the framework of the criminal proceedings against the applicant and the medical opinions of Armenian and foreign specialists including those of 4 July, 5 August and 27 September 2019, 8 April 2020.

The applicant is requested to provide the original of doctor N.H. ’ s note issued on 9 August 2019. He is also requested to provide copies of medical documents relating to his treatment at Ortho Centrum Hamburg between 2015 and February 2019.

2. Having regard to the measures taken in response to the Court ’ s decision of 21 July 2020 to indicate an interim measure under Rule 39 of the Rules of Court, was there a hindrance by the State in the present case with the effective exercise of the applicant ’ s right of application, ensured by Article 34 of the Convention?