Death of a person during detention and the refusal of the authorities to provide information to relatives about the causes of death. Violation of the right to life and Article 3 of the ECHR

JUDGMENT

Shuriyya Zeynalov v. Azerbaijan 10.09.2020  (app. no. 69460/12)

see here 

SUMMARY

Death of a young man in custody. Non-issuance of forensic report to relatives. Prohibition of inhuman and degrading treatment, right to life and obligation of the state for effective investigation.

The applicant’s son was arrested and remanded in custody for 5 days. He died on the 5th day of his detention, without having any specific health problems. There were bruises on his body that proved fatal bodily injuries. Authorities refused to give relatives the details of the file, including the forensic report. The domestic courts rejected the applicant ‘s request for information. All the relatives were then accused of defamation for publishing photos showing the bodily harm.

The ECtHR found that the Government had not provided strong evidence to justify the existence of the injuries on the body of the deceased and considered that this ill-treatment had caused him severe bodily harm and mental suffering, reducing his human dignity. It thus held that there had been a violation of Article 3 of the Convention.

With regard to the right to life, the ECtHR found that the domestic authorities denied access to the relevant evidence, accused the family of the deceased of defamation of their legitimate request for an effective investigation, failed to cooperate with the Commission against Torture, and did not provided convincing evidence of the causes of death, and therefore considered that there had been a violation of Article 2 as regards its substance.

Finally, as regards the investigation, the ECtHR has already found that the prosecutor’s office did not inform the applicant of the progress and outcome of the investigation and that the applicant did not receive copies of the file, therefore deeming the investigation ineffective and therefore breach of Article 3 as regards the procedural part.

The ECtHR awarded the applicant EUR 35,000 in respect of mental suffering.

PROVISIONS

Article 2

Article 3

PRINCIPAL FACTS

The applicant, Shuriyya Mahmud oglu Zeynalov, is an Azerbaijani national who was born in 1938 and
lives in Nakhchivan.

The case concerned the applicant’s son’s death in detention, allegedly due to torture by agents of
the Ministry of National Security of the Nakhchivan Autonomous Republic (NAR).

In August 2011 the applicant’s son, Turaj Zeynalov, born in 1980, was placed under arrest by the
Ministry of National Security of the NAR and charged with high treason after being accused of
collaboration with Iran’s intelligence services.

He was detained at the Pre-trial Detention Facility of the Ministry of Justice of the NAR, but on 28
August he was taken to the Ministry of National Security of the NAR for questioning. However, he
suddenly felt ill and an ambulance was called. He subsequently died on the way to the hospital.

Following the death, photographs and a video showing signs of ill-treatment on his body were given
to the media by members of the family and the incident was widely covered.

The family asked the Ministry of National Security of the NAR, the NAR Prosecutor General, the
Prosecutor General of the Republic of Azerbaijan, and the Ombudsman for documents relating to
the investigation into the death, however, no such documents were provided. The authorities
consistently stated that he had died of a pulmonary embolism and had not been mistreated.

Neither the ordinary nor administrative courts accepted applications from the family to declare
unlawful the authorities’ failure to provide documents on the investigation and to order them to
hand over such information. In November 2012 the applicant appealed to the Supreme Court of the
NAR over the decision of the administrative court in his case. He received no reply to his appeal.

The chief investigator of the Ministry of National Security of the NAR two times accused the family of
defaming his organisation.

The applicant complained under Article 2 (right to life) of the European Convention on Human Rights
that the State had failed to protect his son’s life and that there had been no effective investigation
into his son’s death. He also complained under Article 3 (prohibition of torture or inhuman or
degrading treatment) that his son had been tortured by agents of the MNS and that the authorities
had failed to carry out an effective investigation.

THE DECISION OF THE COURT…

Article 3

The Court reiterates that Article 3 enshrines one of the most fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention, Article 3 makes no provision for exceptions, and no derogation from it is permissible under Article 15 § 2, even in the event of a public emergency threatening the life of the nation. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment.

The Court notes at the outset that it is undisputed that T.Z. did not have any bruises on his body when he was arrested on 24 August 2011. No such claim has been made by the Government.

The Court further observes that, although the forensic expert who examined T.Z.s body several hours after his death did not refer, in his report no. 10 dated 5 September 2011, to any injury or trace of injury to T.Z.s body (see paragraph 8 above), the applicant has presented a video-recording of T.Z.s body filmed before the funeral ceremonies showing serious injuries.

The authenticity of the video-recording was never disputed by the domestic authorities or the Government. In particular, the Government have not contested that the video-recording had been made within a very short time after T.Z.s death, that it showed T.Z.s body and that it depicted injuries visible on T.Z.s shoulders, elbows, knees and buttocks. In these circumstances, the question whether T.Z. had been injured while in police custody hinges on the reliability of the forensic report.

In assessing this question, the Court cannot overlook the fact that despite numerous requests neither the applicant nor other family members of T.Z. were provided with a copy of forensic report no. 10 dated 5 September 2011. As a result, the applicant or other family members were refused information about the circumstances and causes of the death of their close relative and, moreover, prevented from disputing the findings of the forensic expert. Such a refusal can constitute a flagrant disregard by the authorities of their procedural obligations under Articles 2 and 3 of the Convention, which require accessibility and public scrutiny of an investigation as an element of its effectiveness. For purposes of the substantive limb of Article 3, the Court finds particularly striking that instead of providing full information to T.Z.s family regarding the circumstances of his death, the authorities repeatedly accused them of defamation, which could be understood as entailing a threat to open proceedings against them, in response to their attempts to exercise their procedural rights. A strong inference about an attempt to prevent an effective investigation can therefore be made.

The Court also observes that in the case of Mammadov v. Azerbaijan ([Committee], no. 36837/11, § 41, 14 February 2019), it found that bruises on the body of the applicants son were not mentioned in the forensic report established after his death. Other serious omissions during post-mortem forensic examinations were noted in another case against Azerbaijan (see Gasimov v. Azerbaijan [Committee], no. 8937/09, § 81, 10 November 2016). While it is not the Courts task in the present case to make general observations about the manner in which post-mortem forensic examinations are conducted in Azerbaijan, the recurrence of serious omissions noted in the above cases is a relevant fact to be taken into consideration.

The foregoing is sufficient, in the Courts view to conclude that the forensic report no. 10 cannot be considered reliable proof that T.Z. had no injuries on his body following his stay in police custody. In these circumstances, the Court cannot but conclude that the injuries which were visible in the video-recording of T.Z.s body filmed before the funeral ceremonies were sustained by T.Z. in custody between 24 and 28 August 2011.

In this regard it is not necessary for the Court to express an opinion on the statements made by I.M. and their evidentiary value.

There having been no explanation on the part of the Government as to the origin of these injuries, the Court finds that the respondent Government have failed to discharge their burden of proof and concludes that the applicants son was subjected to ill-treatment in custody between 24 and 28 August 2011.

As to the applicants allegation that his son was subjected to torture in detention, the Court notes that bruises were observed on T.Z.s shoulders, elbows, knees and buttocks. Having regard to the context of T.Z.s arrest and the subsequent attempts to prevent an effective investigation, it cannot exclude that those injuries resulted from acts of torture. There is, however, insufficient proof in that regard.

It is nonetheless clear that the illtreatment of the applicants son must have caused him physical pain and suffering. The ill-treatment in question caused him actual bodily injury and its consequences must have also caused him considerable mental suffering, diminishing his human dignity. In these circumstances, the Court considers that the ill-treatment complained of was sufficiently serious to attain a minimum level of severity falling within the scope of Article 3 and to be considered as inhuman and degrading treatment.

Accordingly, there has been a violation of Article 3 of the Convention under its substantive limb on account of the illtreatment of the applicants son between 24 and 28 August 2011.

Article 2

The Court observes at the outset that, although the parties differ in their view as to the cause of T.Z.s death, it is undisputed that T.Z. had been kept in detention from 24 to 28 August 2011 and he had not been suffering from any life-threatening illness at that time. Moreover, the Court has already found that T.Z. had been subjected to ill-treatment in custody between 24 and 28 August 2011 resulting in injuries on his shoulders, elbows, knees and buttocks, pointing out serious omissions in the forensic examination and concluding that forensic report no. 10 cannot be considered reliable proof. Those omissions in the forensic examination are particularly relevant in the context of Article 2 of the Convention, since as the forensic expert failed to record the injuries on T.Z.s body, he did not analyse the question whether there may have been a causal link between those injuries and T.Z.s death.

In any event, in the particular circumstance of the present case, the impossibility to establish a clear causal link between the death of the applicants son and his ill-treatment in detention, does not preclude the Court from finding that the respondent States responsibility should be engaged for the death of the applicants son in detention. The Court reiterates that, while it generally requires proof “beyond reasonable doubt”, in situations where knowledge of the events in issue lie wholly, or in large part, with the authorities, as in the case of persons in detention, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. It is then for the respondent Government to provide a satisfactory and convincing explanation as regards the circumstances of the death and to exhibit solid evidence capable of refuting the applicants allegations . However, in the present case the Governments explanation concerning the cause of T.Z.s death is based on forensic report no. 10 which cannot be accepted by the Court as reliable proof for the reasons set out above. In that connection, the Court also attaches particular weight to the CPTs findings that “on the basis of the forensic examination carried out it is not possible to conclude that the cause of Mr Z.s death was that referred to in the autopsy report”.

The Court furthermore cannot lose sight of the investigating authorities behaviour in the conduct of the criminal investigation into T.Z.s death in detention. The domestic authorities denied access to the relevant evidence, accused T.Z.s family of defamation for their legitimate request for an effective investigation, failed to take any action following the dissemination of the video-recording and continued to fail to cooperate with the CPT, not providing it with accurate information about the investigation .

The Court finds, therefore, that the Government have not convincingly accounted for the circumstances of the death of the applicants son and that the respondent States responsibility for his death is engaged.

Accordingly, there has been a violation of the substantive limb of Article 2 of the Convention.

Article 2 and 3 of the ECHR regarding investigation

The Court notes that the general principles concerning the States procedural obligations under Article 2 of the Convention to which it refers in paragraphs 80-82 above are equally pertinent within the context of the States procedural obligations under Article 3 of the Convention.

Turning to the circumstances of the present case, the Court notes that a criminal inquiry was launched by the domestic authorities immediately after the death of the applicants son, and on 9 September 2011 the Nakhchivan City Prosecutors Office declined to institute criminal proceedings in connection with T.Z.s death.

However, the Court observes that the investigating authorities failed to take all reasonable steps available to them to secure evidence concerning the death of the applicants son. In particular, even though the video-recording of T.Z.s body which was made before the funeral ceremonies indicates that there were bruises on various parts of his body, these injuries were not mentioned in forensic report no. 10 dated 5 September 2011. The domestic authorities failed to take any further action following dissemination of the video-recording in question in the media and did not at any stage reconsider the decision of 9 September 2001 not to investigate further or institute criminal proceedings relating to the circumstances of T.Z.s detention and subsequent death.

Moreover, the Court has already found that the prosecuting authorities failed to inform the applicant of the progress and outcome of the investigation by failing to provide him with the relevant decisions taken within the framework of the criminal proceedings at any stage of the domestic proceedings. In particular, the applicant did not obtain copies of forensic report no. 10 dated 5 September 2011 and the investigators decision of 9 September 2011 refusing to institute criminal proceedings until the Government submitted their observations to the Court. The Court deems it necessary to reiterate that this situation deprived the applicant of the opportunity to safeguard his legitimate interests, and prevented any scrutiny of the investigation by the public. The Court emphasises in this connection the importance of involving the families of the deceased or their legal representatives in the investigation and of providing them with information as well as enabling them to present other evidence.

The Court also held that a strong inference about an attempt to prevent an effective investigation can be made from the accusation of defamation made against the applicant and his lawyer by the chief investigator at the MNS of the NAR.

The foregoing considerations are sufficient to enable the Court to conclude that the domestic authorities failed to carry out an effective investigation into the circumstances surrounding the death of the applicants son. Accordingly, it holds that there have been violations of Articles 2 and 3 under their procedural limbs.

Just satisfaction: 35,000 euros (EUR) in respect of non-pecuniary damage, and EUR 2,000 in respect of costs and expenses.


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