The allegations of the state authorities for the attempted suicide of a prisoner and not for homicide were not convincing. Violation of the right to life.
JUDGMENT
Lapshin v. Azerbaijan 20.5.2021 (app. no 13527/18)
SUMMARY
The case concerned an incident during the applicant’s imprisonment in Azerbaijan in 2017 for having
crossed the State border outside the checkpoints during journeys to Nagorno-Karabakh, and the
ensuing inquiry by the prosecutor’s office into the incident. The authorities asserted that the
incident had been a suicide attempt, while the applicant alleged it had been attempted murder.
The applicant was resuscitated and hospitalised in an intensive-care unit. The following day the
applicant was pardoned by the President of Azerbaijan and, upon his discharge from hospital three
days later, was expelled to Israel.
The Court found that the inquiry into the prison incident had been ineffective and in breach of the
respondent State’s procedural obligations under Article 2 of the Convention. It found that the
respondent State had failed to satisfy the burden of proof resting on it to provide a satisfactory and
convincing explanation as regards the incident which had put the applicant’s life in danger. There
had therefore been a violation of Article 2 under its substantive limb.
PRINCIPAL FACTS
The applicant, Alexander Valeryevich Lapshin, is an Israeli, Russian and Ukrainian national who was
born in 1976 and lives in Haifa (Israel).
According to the applicant, on 10 September 2017, he was attacked and beaten in his prison cell by a
group of masked men, one of whom attempted to strangle him with his bare hands. He regained
consciousness two days later in an intensive-care unit.
According to the Azerbaijani authorities, prison officers found the applicant hanging from a towel
hook (a nail) in his in-cell sanitary facility, a shoulder strap from a bag around his neck. He was
immediately given artificial respiration and then taken to hospital where he was admitted to a
resuscitation unit.
The investigator of the District Prosecutor’s Office found that the applicant had attempted to
commit suicide in prison and that there were no elements of criminal responsibility involved.
He declined to initiate a criminal case into the incident, referring to the inspection of the scene,
the statements of witnesses (prison guards and medical staff) and documents from the prison files.
The investigator’s decision indicated that it should be served on the applicant, who should be advised of his right to appeal. There is, however, no evidence of any steps taken to serve the decision on the applicant.
Upon arrival in Israel four days after the incident, the applicant was admitted to a medical centre
where he underwent physical and psychiatric examinations. The medical report noted that the
applicant had visible signs of strangulation and multiple bruises and that there was no evidence of
psychosis or affective disorders.
In addition, the applicant privately commissioned two medical expert reports. One of the reports, by
a team of Russian doctors, concluded that the applicant had not tried to commit suicide by hanging
as many physical signs of hanging were missing. According to the report, somebody or several
persons had tried to strangle him and had made it look as if he had tried to hang himself. The other
medical report, produced by a forensic expert, recorded that the applicant had sustained a number
of non-self-inflicted blunt-force injuries to his face, body and arms. In addition, there were signs of
manual strangulation and, as the injuries sustained were not consistent with attempted suicide, the
assault could be classified as attempted murder.
On 1 February 2018 the applicant sent an email to the Deputy Prosecutor General of Azerbaijan,
requesting information about the investigation and explaining that he was not able to travel to
Azerbaijan to pursue his complaints as he was not allowed to enter the country. According to the
applicant, as he received no reply to his email, he sent a letter to the Deputy Prosecutor General of
Azerbaijan on 17 February 2018, requesting information on the course of the investigation and
informing him that on 15 September 2017 he had voiced his allegations of attempted murder in
interviews given to several Russian, Israeli, Armenian, Ukrainian, British and American media outlets.
Despite proof of delivery, he did not receive a reply to his requests.
Relying on Article 2 (right to life) and Article 3 (prohibition of inhuman or degrading treatment) of
the European Convention on Human Rights, the applicant complained that an attempt had been
made on his life, in prison, and that the domestic authorities had failed to investigate the
circumstances of the case. He also complained of ill-treatment and humiliation during his transfer to
and his stay in prison in Azerbaijan, and alleged that he had been kept in solitary confinement for a
period of seven months.
THE DECISION OF THE COURT…
Article 2
The Court found that the medical and other evidence available clearly showed that the applicant’s
life had been in serious and imminent jeopardy and that his survival had been down to prompt medical intervention. His situation had remained critical for several days and had required constant medical treatment, including resuscitation and intravenous feeding.
Procedural limb
The Court observed that there had been serious deficiencies and inconsistencies in the manner in
which the inquiry had been conducted and in the investigator’s findings closing the inquiry. As a
consequence, many questions remained unanswered. In particular, a timely forensic examination
could have enabled the reaching of crucial conclusions as to the existence, time and nature of the
applicant’s injuries. However, the applicant had not been examined by a forensic expert and no
forensic assessment of his injuries had been carried out in Azerbaijan. Moreover, there was no
indication that the investigator had sought to obtain the video surveillance recordings, which could
have clarified who had entered the applicant’s cell and what had actually happened on the day of
the incident. In that connection, it noted that there had been serious inconsistencies in the prison
guards’ statements, which had not been clarified during the inquiry.
The Court noted that the inspection of the scene had found no bag in the applicant’s cell from which
he had allegedly taken the strap to try to commit suicide. The investigator had failed to consider and
examine whether it would have been possible for the applicant to have had a strap in his prison cell
given that such an object was considered as potentially dangerous and was normally not available to
prisoners.
In the Court’s view, it was difficult to accept on the basis of the evidence available that an adult of
the applicant’s stature could have hanged himself on a 3-cm-long wall nail 1.9 m off the ground
using a 0.9-m-long bag strap. That should have been examined more thoroughly through, for
example, a reconstruction of the event.
The Court therefore concluded that the inquiry into the incident in prison that had put the
applicant’s life at risk had been ineffective and in breach of the respondent State’s procedural
obligations under Article 2 of the Convention.
Substantive limb
The Court underlined that the evidence which the parties had submitted, and their diverging views
on the circumstances of the incident, should have been examined in domestic proceedings. The role
of the Court was not to serve as a first-instance tribunal of fact. Though the Court was not bound by
the domestic findings and remained free to make its own appreciation in the light of all the material
before it, it had to work on the relevant findings reached by the domestic authorities, or a lack
thereof, and draw the necessary inferences.
It therefore sufficed for the Court to note that the applicant’s allegation of attempted murder, with
the alleged crime being disguised as attempted suicide, was plausible, despite certain
inconsistencies in his recollection of the facts, which might be linked to the trauma suffered.
In addition, the Court noted that, even disregarding one of the medical reports commissioned by the
applicant which the Government challenged as not having been prepared by forensic experts, the
fact remained that both reports – one of which had been provided by a forensic expert, whose
expertise had not been called into question by the Government despite their challenging the
substance of the report – had come to the same conclusion, namely that the applicant had been a
victim of attempted murder by strangulation.
The Court also noted that the Government’s argument that the applicant had tried to commit
suicide because he had been frustrated at not having received a planned visit from his wife and son
– the latter having been taken ill –, was not convincing, especially as he had been expecting to be
transferred from Azerbaijan to Israel for the rest of his prison sentence. It observed also that on the
day following the incident – the day of the applicant’s pardon by the President – in a telephone conversation with the applicant’s wife, the prison staff had not disclosed that he had allegedly attempted suicide and had been in a critical situation.
The Court was therefore not convinced that the incident had been a suicide attempt. The
respondent State had failed to satisfy the burden of proof resting on it to provide a satisfactory and
convincing explanation as regards the incident during which the applicant’s life had been in danger.
There had accordigly been a violation of Article 2 of the Convention under its substantive limb.
Article 3
Having regard to the facts of the case, the submissions of the parties and its findings under Article 2
of the Convention, the Court considered that it had examined the main legal questions raised in the
application and that there was no need to give a separate ruling on the remaining complaints.
Just satisfaction (Article 41)
The Court held that Azerbaijan was to pay the applicant 30,000 euros (EUR) in respect of nonpecuniary damage.
Separate opinion
Judge Qaracayev expressed a partly dissenting opinion. This opinion is annexed to the judgment
