CEDH · CASELAW;COMMUNICATEDCASES;ENG — 4 octobre 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s943D4F93 { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-indent:21.8pt; text-align:justify }   Published on 21 October 2024   FOURTH SECTION Application no. 16028/24 Gagik KHACHATRYAN against Armenia lodged on 23 April 2024 communicated on 4 October 2024 SUBJECT MATTER OF THE CASE The applicant is a well-known public figure in Armenia and a former high ‑ ranking Government official. Since February 2019 he has been under prosecution for several offences allegedly committed while he was still in office, including embezzlement and abuse of authority. The applicant has serious health issues, including spinal stenosis, myelopathy, radiculopathy, gallstone disease, chronic cholecystitis and chronic pancreatitis. In April 2018, that is prior to the investigation against the applicant, he had been operated in Germany (spinal surgery with decompression of the spinal canal and disc replacement) and underwent several sessions of mandatory post-surgical rehabilitation. His treatment was apparently interrupted due to the investigation and his subsequent detention in August   2019. Following his release on bail in October 2020 the applicant was allowed by the trial court to travel to Hamburg, Moscow and Paris for medical treatment on a number of occasions. On 8 May 2023, further to the applicant having filed another request for permission to travel abroad for a medical treatment, the prosecution requested the trial court to impose on him a written undertaking not to leave the place of residence arguing that the applicant was using his health condition to delay the proceedings. The trial court granted the prosecution’s request on the grounds that, despite multiple permissions to undergo medical treatments abroad, the applicant was still failing to attend the court hearings referring to his poor health. On 29 September 2023 the applicant requested authorisation to travel to Germany from 8 October until 10 November 2023. The trial court ordered a forensic examination of the applicant’s medical condition. On 11 December 2023 Doctor V.A., the adviser to the Minister of Health in the field of neurosurgery, issued an opinion confirming that there had been a negative dynamics in the applicant’s health requiring an urgent surgery which could not be performed in Armenia due to the lack of appropriate equipment. He also stated in this opinion that postponing the secondary surgery could cause irreversible consequences and lead to the emergence of other health issues or the aggravation of the existing ones. In the meantime, in early December 2023 Doctor N.H., the applicant’s German doctor who had performed his spinal surgery in Hamburg, visited him in Armenia. On 9 December 2023 Doctor N.H. and two Armenian doctors issued a joint medical opinion noting the deterioration of the applicant’s general condition and the deepening of the neurological deficit. Surgical treatment was prescribed to avoid further irreversible damage which could “worsen the applicant’s life and quality of life”. In his written statement submitted to the applicant’s lawyers on the same day, Doctor N.H. stated that he could not perform the prescribed surgery in Armenia due to the lack of the relevant equipment and the impossibility to bring the implants necessary for the surgery (which were not available in Armenia and which he was not allowed to carry with him). According to the applicant, he orally requested the trial court to examine his several requests to be allowed to travel abroad for medical treatment in his absence due to his poor health condition. It appears that the trial court rejected the applicant’s above request. On 23 February 2024 the trial court rejected the applicant’s requests to travel to Germany for medical treatment on the grounds that his treatment was possible in Armenia, including with the participation of his foreign doctors, and that he had been granted leave from trial on a number of occasions before. At the same hearing the trial court ordered to secure the applicant’s presence before it. According to the applicant, despite his poor state of health, he had been obliged to attend six court hearings between March and May 2024. He had to be put on a stretcher with the help of an ambulance crew and suffered from severe pain. Some of those hearings were adjourned since the applicant had felt unwell and needed medical assistance. Further to the applicant’s appeal, the Anti-Corruption Court of Appeal decided on 22 March 2024 that the trial court’s decision of 23 February 2024 was not amenable to appeal. The Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit by its decision of 10   May 2024. On 17 May 2024 Doctor N.H. and the applicant’s two Armenian doctors issued a joint medical opinion according to which the applicant’s health had deteriorated as compared to his previous examination in December 2023. In addition to the previously recommended cervical surgery, a shoulder surgery had also become necessary. That opinion further stated that, even in the most positive case scenario, the applicant would still be left with “irreversible damage and reduced mobility” after those surgeries. On 16 June 2024 the applicant qualified for permanent disability benefit due to severe loss of functionality (66%). The applicant complains under Article 2 of the Convention about the authorities’ refusal to allow his medical treatment in Germany at his own expense despite his life-threatening medical condition and the unavailability of the necessary medical treatment in Armenia. He also complains of degrading treatment on account of the trial court requiring him to attend court hearings despite the fact that he had to do so while being on a stretcher, suffering from severe pain and unable to use the toilet facilities that were not adapted to his special needs. QUESTIONS TO THE PARTIES 1.     Having regard to the fact that since May 2023 the applicant has not been allowed to travel to Germany for allegedly life-saving medical treatment, can it be said that the authorities have complied with their positive obligation to protect his right to life arising from Article 2 of the Convention? 2.     Having regard to the applicant’s medical condition and the alleged unavailability of adapted sanitary facilities at the courthouse, has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention, on account of his participation in court hearings between 7 March 2024 and 17 May 2024? The parties are requested to clarify whether there is a realistic possibility for the applicant’s German doctor having the necessary expertise to perform the recommended surgery in Armenia. In that connection, the parties are requested to explain, if possible with reference to the applicable national and international regulations, whether it is legally and practically possible to import the implants and equipment required for the given surgery to Armenia. The parties are further requested to clarify whether there is a legal and practical possibility for the accused person’s remote participation in court hearings.