The risk of an accused of being flogged in Iran and the Court’s drastic intervention
JUDGMENT
G.S. v. Bulgaria 04.04.2019 (no. 36538/17)
SUMMARY
Risk of flogging a Georgian accused of theft in Iran. Request for extradition to the Bulgarian authorities. The Bulgarian courts had assumed that the only penalty that would be imposed on the applicant was that of imprisonment. The offense of the theft for which he was accused was also punishable by whipping. Iran’s criminal law provided for a statutory sentence of up to 74 lashes. International reports and other information have shown that whipping was a common punishment in Iran, and is regarded by the Iranian authorities as a legitimate form of punishment. The Court considered that there would be a violation of Article 3 (prohibition of torture and inhuman or degrading treatment) of the ECHR if the applicant were extradited to Iran because of the possible punishment he was expecting. Non-publication of the applicant by the Bulgarian authorities until the decision of the ECtHR becomes definitive or until a new decision is taken.
PROVISION
Article 3
PRINCIPAL FACTS
The applicant, Mr G.S., is a Georgian national who was born in 1951. He is currently being detained
in Sofia Prison pending his extradition to Iran on theft charges.
In December 2016, when arriving in Bulgaria from Georgia, Mr G.S. was arrested at Sofia Airport on
the basis of an Interpol red notice. According to the red notice, he had stolen 50,000 euros in 2016
from a foreign-exchange office in Teheran, an offence punishable with imprisonment under
Article 656 of the Iranian Penal Code.
He was detained pending receipt of a formal extradition request from the Iranian authorities. The
request arrived in January 2017, specifying that according to the text of Article 656 § 4 of the Iranian
Penal Code, the punishment envisaged was imprisonment.
In April 2017 the Sofia City Court allowed the extradition request, finding that it met all the formal
requirements and that it was permissible to proceed on the basis of the de facto reciprocity between
Bulgaria and Iran. It also noted that the Iranian authorities had given assurances that the applicant
would not face torture or inhuman treatment and that Iranian law only envisaged imprisonment for
the alleged offence. The decision was upheld on appeal.
The applicant’s extradition was, however, stayed in May 2017 on the basis of an interim measure
granted by the European Court of Human Rights under Rule 39 of its Rules of Court, which indicated
to the Bulgarian Government that the applicant should not be extradited for the duration of the
proceedings before it.
THE DECISION OF THE COURT
It was scarcely in doubt that the corporal punishment alleged to await the applicant in Iran, up to 74
lashes, was contrary to Article 3 of the European Convention.
First, the Court noted that the alleged offence of which the applicant stood accused in Iran was also
punishable with flogging. Although neither the red notice nor the extradition request had referred to
flogging as a form of punishment, websites ran by the Iranian legislature and judiciary confirmed
that Article 656 § 4 of the Iranian Penal Code, under which the applicant was being prosecuted, did
provide for a punishment of up to 74 lashes. Other publicly available sources also confirmed this.
The Bulgarian courts’ decisions were of no assistance in assessing whether the applicant was at a
real risk of being given such a sentence or of having it carried out because they had simply assumed
that the only penalty awaiting the applicant in Iran was imprisonment.
The Court, on the other hand, found there was a real risk of flogging. It took into account various
international reports that flogging sentences were commonplace in Iran. It also examined reasonably
recent information showing that sentences of flogging had been imposed and carried out in a
number of cases concerning theft.
Moreover, it had profound misgivings about the Iranian authorities’ assurances. First, the extradition
request had omitted to specify that Article 656 § 4 of the Iranian Penal Code had envisaged not only
imprisonment but also flogging. Secondly, the Iran authorities had recently publicly stated in
response to a United Nations report that they considered flogging a legitimate form of punishment,
which had been “interpreted wrongfully, by the West, as … degrading”. Indeed, Iran apparently
regarded flogging and other forms of corporal punishment as an important aspect of its sovereignty
and legal tradition.
More importantly, assurances against torture by a State in which it was endemic or persistent were
to be treated with caution.
It was clear that the decision to extradite the applicant to Iran would, if implemented, give rise to a
breach of Article 3 of the Convention owing to the possible punishment of flogging that awaited him
there.
Other complaints
The Court further held that it was not necessary to examine whether the applicant’s extradition to
Iran would give rise to other issues under Article 3, such as poor detention conditions or
ill-treatment in detention. Nor was it necessary to rule on his complaints that if extradited to Iran, he
would risk a flagrant denial of justice and suffer discrimination because he was a Christian.
Just satisfaction (Article 41)
The Court held that the finding of a potential breach of Article 3 constituted in itself sufficient just
satisfaction.
Rule 39
The Court also decided to continue to indicate to the Bulgarian Government under Rule 39 not to
extradite the applicant until such time as this judgment became final or until further order(echrcaselaw.com editing).
