Professional Documents
Culture Documents
CASE OF LAPSHIN v. AZERBAIJAN
CASE OF LAPSHIN v. AZERBAIJAN
JUDGMENT
STRASBOURG
20 May 2021
This judgment will become final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
LAPSHIN v. AZERBAIJAN JUDGMENT
INTRODUCTION
1. The case concerns mainly the applicant’s complaints under Article 2
of the Convention that there was an attempt to his life in prison, and that the
domestic authorities failed to investigate the circumstances of the case.
THE FACTS
2. The applicant was born in 1976 and lives in Haifa, Israel. The
applicant was represented by Ms K.A. Moskalenko and Ms A. Maralyan,
lawyers practising in Strasbourg.
3. The Government were represented by their Agent Mr Ç. Əsgərov.
1
LAPSHIN v. AZERBAIJAN JUDGMENT
2
LAPSHIN v. AZERBAIJAN JUDGMENT
right side of the face, and he had difficulties moving his right foot and hand.
He also had hearing impairments and could not at first properly coordinate
his movements.
13. According to the Government’s version of the events, on
9 September 2017 the applicant was expecting the arrival of his spouse,
together with their minor child, to visit him in prison. At the time, he was
held in the medical unit due to certain health issues. However, the child got
seriously ill in Tbilisi, Georgia, on their way to Baku. On the day of the
expected visit, the applicant learned this after talking twice to his wife on
the phone. Thereafter the prison officers noticed that the applicant became
depressed so the superintendent decided that he should be under constant
control in order to prevent him from taking any adverse actions.
On 10 September 2017 at 10.05 a.m. the prison guard A.A. observed that
the applicant had gone to the sanitary facility of his cell. A.A. reported this
to the superintendent Z.I., who ordered A.A. to control whether the
applicant would respond regularly to calls. Approximately three minutes
later, A.A. called the applicant and the applicant replied that he was in the
in-cell sanitary facility. When A.A. called the applicant for the second time,
the applicant did not respond. Thus, approximately at 10.12 a.m., A.A. and
Z.I. entered the room and found the applicant hanged on the towel rack on
the wall, using a shoulder strap. They immediately took the applicant off the
loop and put him on the bed and proceeded with artificial respiration. At
10.42 and 11.35 a.m. two emergency medical service teams attended to the
applicant and at 1.05 p.m. he was taken to the medical centre.
14. According to a medical report available to the Court in Azerbaijani
and English entitled “Epicrisis” of the Merkezi Clinic in Baku, dated
14 September 2017, the applicant was brought to that clinic on
10 September 2017 at 1.05 p.m. accompanied by a prison doctor. The
description of the applicant’s condition and his treatment flowing from the
report may be summarised as follows.
15. At the moment of the arrival, the applicant was unconscious and
could not express any complaints. However, the “surrounding persons”
explained that in early hours the prison staff had found him in the cell with
“violated consciousness and insufficient breath”. He had been immediately
given first aid and his life functions had been restored. However, his
consciousness had not been completely restored and his condition had not
stabilised so he was taken to the Merkezi Clinic.
16. At admission to the Merkezi Clinic the applicant was under sedation,
his speech was not clear and a psychomotor agitation was observed. There
were no visible changes in his musculoskeletal system. He had a surrounded
red spot in the frontal surface area of the throat and his breathing was
quickened with crepitation. A further CT examination of the throat revealed
that there was a linear break in the left part of the hyoid bone.
3
LAPSHIN v. AZERBAIJAN JUDGMENT
17. After the admission, the applicant was immediately taken for
intubation in the reanimation unit, where he was connected to the relevant
apparatus. Throughout the day his general condition was half-serious and he
was sedated. In the morning hours of the next day, 11 September 2017, the
applicant’s general condition was medium. He started breathing
spontaneously but with difficulties. The sedation was discontinued and the
applicant was able to answer questions with gestures. He had difficulties
talking. He underwent several examinations, including by a psychiatrist. On
the same day in the afternoon, at 4 p.m., the applicant’s consciousness was
clear and he continued breathing spontaneously. He had dysphonia and
respiratory tension while talking.
18. On 12 September 2017 the applicant’s consciousness was clear and
his breathing was satisfactory. However, he had difficulties swallowing so
was fed through a venous catheter. On the next day, 13 September 2017, the
dysphonia and the swallowing difficulties were still present, so feeding
through the venous catheter continued. However, no locomotive limitation
was observed in extremities. The applicant was examined by doctor R.C.
Some ecchymotic areas at frontal tongue “related to biting” were observed.
Problems with vocal chords were also observed.
19. On 14 September 2017 the applicant and his relatives “absolutely
refused [further] examination and treatment in general reanimation section,
and they return[ed] to Israel.”
4
LAPSHIN v. AZERBAIJAN JUDGMENT
cell and separated from the remainder of the cell by a plastic door. Inside
the sanitary facility there was a wall hook placed at the height of 1,90 m
from the ground. To the right of the wall hook there was a tightly fixed nail
which was also used as a wall hook. The nail was metal and the length of its
visible part was 3 cm. During the inspection, the senior guard Z.I. stated that
he had found the applicant hanged on the nail in question with a loop on his
neck. The inspection found a belt made of hard material on the junction of
the sanitary facility and the entrance door. The belt was 0,9 m long and
there was a loop on the belt. There were also two hoops located on the edge
of the belt beyond the loop. The Protocol concluded that “[n]o other items,
having importance for the case, were found.” The Protocol was
accompanied with photographs, which depict, amongst other, a belt tight in
a loop positioned on the floor.
23. According to an undated record containing a statement of the senior
prison guard Z.I., on the day of the incident he was in charge of supervising
the work of two on-duty guards, A.A. and T.A. At around 10.05 a.m., A.A.
informed Z.I. that the applicant had entered the in-cell sanitary facility so
Z.I. instructed A.A. to report if the applicant would linger in there or would
not respond to calls. At around 10.12 a.m., A.A. reported to Z.I. that the
applicant had not responded to calls so they immediately entered the cell. In
the in-cell sanitary facility they found the applicant hanged with a belt of his
bag on the nail designed for hanging towels. He was unconscious. Z.I.
started lifting him on his feet and the other guard opened the knot of the
belt. Z.I. then started providing artificial respiration to the applicant. The
prison doctors were also called in. At around noon the applicant was taken
by an ambulance to the specialised hospital. Z.I. could not explain the
applicant’s conduct. However, the applicant had told him two days before
that he had spoken to his wife who could not come to visit him because their
child got sick. The applicant had been in bad mood over this so Z.I.
informed the prison’s hierarchy. The head and deputy head of the prison and
the head of the medical unit had spoken to the applicant on 9 September
2017. Z.I. also confirmed that the applicant had never before attempted to
commit suicide in the prison.
24. According to an undated record containing a statement of the prison
guard T.A., he was on duty on the day of the incident with A.A. Their work
was supervised by Z.I. A few minutes after 10.05 a.m. A.A. called the
applicant, who had entered the in-cell sanitary facility, but the applicant did
not answer. They immediately reported that to Z.I. and they entered the cell.
They found the applicant hanged with a belt of his bag on the nail for
hanging towels. Z.I. lifted the applicant while T.A. and A.A. opened the
knot on the belt and hanged the belt [somewhere] in the room. They also
provided artificial respiration to the applicant and splashed his face with
water. Afterwards the applicant was provided medical aid by doctors and he
was taken to the hospital. T.A. did not hear that the applicant had ever
5
LAPSHIN v. AZERBAIJAN JUDGMENT
attempted suicide. However, the applicant had said to T.A. that he was
worried about and missing his family. Two days before the incident the
applicant had learned that his child got sick and was anxious over that. He
was thus treated with care in prison.
25. An undated statement of the prison guard A.A. confirmed that on the
day of the incident he was on duty with T.A. and under the supervision of
Z.I. After he had seen that the applicant entered the in-cell sanitary facility
at around 10.05 a.m., A.A. reported the matter to Z.I., who instructed him to
report if the applicant would linger in there. A few minutes later, A.A.
called the applicant and he answered. However, soon afterwards A.A. again
called the applicant and got no reply. A.A. therefore reported the matter to
Z.I. and they entered the cell. They saw the applicant hanged with a belt of
his bag on the nail for hanging towels. Z.I. immediately started lifting the
applicant while A.A. and T.A. opened the knot on the belt. They then put
the applicant on the floor and provided artificial respiration. They also
splashed water on his face. Afterwards the medical services intervened and
the applicant was taken to a specialised hospital. A.A. had no information
that the applicant would have ever attempted suicide in prison. The
applicant had only told them how he missed his family. A.A. heard that a
day or two before the incident the applicant’s child had fallen ill so the
applicant had been worried about that.
26. By a decision of 4 October 2017, the investigator refused to initiate a
criminal case into the incident. In his decision, the investigator referred to
the Protocol on the inspection of the scene, the statements of witnesses (Z.I.,
the head and a doctor of the prison’s medical-sanitary department, as well as
two medical assistants, and the prison guards T.A. and A.A.) and documents
from the prison files. He also referred – without further specification – to a
“medical epicrisis issued regarding [the applicant] on 11 September 2019”.
27. On the basis of this evidence, the investigator found that the
applicant had attempted to commit suicide in prison and that no elements of
criminal responsibility existed in that respect. The investigator also noted
that on 8 September 2017 the applicant had spoken to his wife and learned
that his child had fallen ill while traveling to visit him in Azerbaijan. The
child had a fever and was admitted to a hospital. The applicant had missed
his family and had been in a bad mood.
28. The investigator’s decision indicated that it should be served on the
applicant, who should be advised of the right to appeal before the relevant
prosecutor or the court. There is no indication or evidence available to the
Court of any steps taken to serve the decision on the applicant.
6
LAPSHIN v. AZERBAIJAN JUDGMENT
7
LAPSHIN v. AZERBAIJAN JUDGMENT
8
LAPSHIN v. AZERBAIJAN JUDGMENT
9
LAPSHIN v. AZERBAIJAN JUDGMENT
48. The expert report also referred to eight photographs depicting the
various injuries which the applicant sustained. Three photographs said to
have been taken in the Merkezi Clinic on 10 September 2017, while other
photographs were taken elsewhere, probably in Israel. According to the
experts, the appearance of the traces on the applicant’s neck differed when
comparing the two groups of photographs. The experts considered the traces
depicted on the photographs taken in Israel to be an artefact.
49. The experts also challenged the findings of the expert report
provided by the Russian doctors (see paragraphs 36 above), pointing to the
alternative conclusions on the dynamic of injuries which the applicant had
sustained. In particular, they considered that certain indications confirmed
the suicide attempt by hanging, such as information from the initial medical
report showing, according to the experts, that the applicant had urinary and
bowel incontinence. Moreover, the medical reports recorded a tongue
injury, which was often observed in cases of hanging. The visible injuries
on the applicant’s forearms resulted when the intravenous injections had
been administered during the provision of the first aid, while some other
injuries could have resulted from convulsions during the hanging and
banging against the wall.
50. In conclusion, the experts found that on 10 September 2017 at about
10.15 a.m. the applicant had hanged himself on the wall rack in the in-cell
sanitary facility but was saved thanks to the vigilance of the prison guards.
In this connection, the experts also noted inconsistencies in the applicant’s
account of the events as recorded in different medical records. However,
they considered that this was confabulation resulting from amnesia (loss of
some part of memory), which occurs during hanging.
10
LAPSHIN v. AZERBAIJAN JUDGMENT
53. The applicant explained that his letter to the Deputy Prosecutor
General of Azerbaijan was dispatched from Latvia where he was at the time
traveling. In this connection, the applicant provided a postal dispatch slip of
the Latvian post indicating that an item was sent on 17 February 2018 to the
Prosecutor General’s Office of the Republic of Azerbaijan. The applicant
also provided a postal delivery report indicating that the same item was
delivered at destination on 28 February 2018. However, he never received a
reply to his complaints.
54. According to the Government, the Prosecutor General’s Office did
not receive the applicant’s letter. After the notice of the present case was
given to the Government, the Prosecutor General’s Office instructed an
internal inquiry into the matter.
55. On 26 April 2019 the Ministry of Transport, Communications and
High Technologies of Azerbaijan reported to the Prosecutor General’s
Office that a postman had lost the letter in unknown circumstances and that
the letter had not therefore been delivered at its destination. This report was
accompanied by a statement of the postman explaining that due to serious
health issues (not specifying which) and huge workload he had not been
able to perform his duties properly at the relevant time. He could not
remember in which circumstances he had lost the letter and the absence of
the recipient’s signature on the delivery note proved this. The postman’s
statement was supported by a statement of the Deputy Head of the relevant
post department.
56. The applicant provided to the Court two CDs allegedly containing
audio recordings of the following telephone conversations:
- On 8 September 2017 between the applicant (from prison) and his
wife. The applicant’s wife informed the applicant that she would not be able
to visit him in prison because their daughter was unwell. They also
discussed the applicant’s anticipated transfer from Azerbaijan and whether
that could happen before the end of the month;
- On 11 September 2017 between the applicant’s wife and the prison
staff. In the conversation, the applicant’s wife mentioned that early on that
day a “decree” had been signed ordering the applicant’s release. She insisted
speaking to the applicant but a prison guard said that it was not possible at
the moment and reassured her that the applicant was fine.
57. The applicant also provided to the Court a certified English
translation of a document issued by the Global Consular Service of the
Israeli Ministry of Foreign Affairs, dated 13 February 2019, informing the
applicant that the Israeli authorities had received messages from the
Azerbaijani authorities stating that in response to the various publications in
11
LAPSHIN v. AZERBAIJAN JUDGMENT
THE LAW
I. PRELIMINARY ISSUE
59. The Government submitted that the applicant had not been properly
represented before the Court. In their view, the contact between the
applicant and his representatives was of a formal character and did not allow
the applicant to have knowledge of the proceedings. This was clear from
some misconceived Facebook posts made by the applicant about the course
of the present proceedings before the Court.
60. The applicant insisted that he had duly given a power of attorney to
his representatives before the Court and that he was in constant contact with
them. This was obvious from the fact that he had provided them with a
number of handwritten statements explaining various aspects of the case
pending before the Court. The applicant also denied that the Facebook posts
had been published on his Facebook account (see paragraph 69 below).
61. The Court reiterates that an applicant’s representative must not only
supply a power of attorney or written authority (Rule 45 § 3 of the Rules of
Court) but that it is also important that contact between the applicant and his
or her representative be maintained throughout the proceedings (see V.M.
and Others v. Belgium (striking out) [GC], no. 60125/11, § 35,
17 November 2016).
62. In the present case, the applicant is represented before the Court on
the basis of a written power of attorney issued to Ms Moskalenko and
Ms Maralyan. It is not in dispute between the parties that during the
proceedings the representatives had also relied upon and provided to the
Court a number of written explanations given by the applicant. There is
therefore nothing in the case file that could call into question the
representatives’ account of their continuous contact with the applicant. This
conclusion is not called into question by the Government’s arguments as
regards the applicant’s alleged Facebook posts, which is a matter that the
Court will address below in the context of the Government’s objection of
abuse of the right of individual application (see paragraph 79 below).
12
LAPSHIN v. AZERBAIJAN JUDGMENT
64. The applicant complained that there had been an attempt to his life in
prison, and that the domestic authorities had failed to investigate the
circumstances of the case.
65. The applicant relied on Article 2 of the Convention, which reads as
follows:
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of
his life intentionally ...
2. Deprivation of life shall not be regarded as inflicted in contravention of this
article when it results from the use of force which is no more than absolutely
necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully
detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
A. Admissibility
13
LAPSHIN v. AZERBAIJAN JUDGMENT
14
LAPSHIN v. AZERBAIJAN JUDGMENT
expert report had been experienced medical doctors and thus qualified as
experts, while paediatrics was their additional qualification. The applicant
further argued that in one of the recorded telephone conversations his wife
made reference to the fact that on that day the applicant had been pardoned.
The date of the recording could therefore be established. As regards the
Israeli authorities’ document, the applicant pointed out that he had provided
a certified English translation of it. The applicant further insisted that he had
not written the letters of 11 and 13 September 2017 to the Azerbaijani
President as that was impossible given his health condition at that time. He
also contended that the handwriting expert report could not be accepted as it
was one-sided.
15
LAPSHIN v. AZERBAIJAN JUDGMENT
75. The Court notes that there is no dispute between the parties that the
decision of the investigator of the Sabuncu District Prosecutor’s Office not
to open a criminal case concerning the incident of 10 September 2017 (see
paragraph 28 above) was not served on the applicant. Although it is true that
when that decision was adopted the applicant was no longer in Azerbaijan,
there is no indication that the Azerbaijani authorities took any measure, such
as through the diplomatic channels with Israel to which the applicant was
expelled (see paragraph 57 above, concerning the exchange of information
between the two countries) or otherwise, to establish his whereabouts and to
serve that decision on him.
76. The Court further notes that the applicant attempted to reach the
Azerbaijani authorities with a view to obtain information about any
investigation concerning his alleged attempted murder. He first sent an
email to the Prosecutor General’s Office on 1 February 2018 and then,
according to him, a letter via post in Latvia on 17 February 2018. In this
connection, whatever the circumstances of delivery of the applicant’s letter
of 17 February 2018 (see paragraphs 54-55 above), it should be noted that
the Government did not deny the receipt of the email sent by the applicant
on 1 February 2018. It therefore follows that the Azerbaijani authorities had
a possibility to contact the applicant and to inform him of the investigator’s
decision. However, they failed to take any initiative in that regard.
77. In these circumstances, the Court finds that the applicant’s complaint
cannot be rejected for non-exhaustion of domestic remedies (compare
Shuriyya Zeynalov v. Azerbaijan, no. 69460/12, §§ 42-44, 10 September
2020). The Government’s objection in this regard must therefore be
dismissed.
16
LAPSHIN v. AZERBAIJAN JUDGMENT
The Court cannot therefore establish that the applicant used offensive
language directed against the respondent Government’s Agent and thus
abused his right of individual application.
80. With respect to the other arguments made by the Government
concerning the relevance and probative value of different items of evidence
provided by the applicant, including the credibility of his different
submissions, the Court notes, having regard to the material available to it
and the applicant’s explanations (see paragraph 69 above), that there is
nothing allowing it to conclude that the applicant knowingly presented
untrue facts and intentionally sought to mislead the Court. The fact that the
Government disagree with the applicant on the essential aspects of his
submissions and the relevance and probative value of evidence he provided
cannot call into question this conclusion.
81. In this connection, it is important to stress that parties can submit
arguments and counter-arguments related to their cases and the Court can
accept or reject them, but such contentious submissions cannot in
themselves be regarded as an abuse of the right of individual application
(see Hoti v. Croatia, no. 63311/14, § 92, 26 April 2018, with further
references). Moreover, the Court is free to assess the admissibility and
relevance as well as the probative value of each item of evidence before it.
When assessing evidence it is not bound by formulae and adopts the
conclusions supported by the free evaluation of all evidence, including such
inferences as may flow from the facts and the parties’ submissions (see
Merabishvili v. Georgia [GC], no. 72508/13, § 315, 28 November 2017).
82. It therefore follows from the above that the Government’s objection
must be dismissed.
(d) Conclusion
83. The Court notes that the applicant’s complaint is neither manifestly
ill-founded nor inadmissible on any other grounds listed in Article 35 of the
Convention. It must therefore be declared admissible.
B. Merits
17
LAPSHIN v. AZERBAIJAN JUDGMENT
unit. The applicant had also received a letter from the former Minister of
Foreign Affairs of Azerbaijan and a well-known Azerbaijani politician
saying that his (the applicant’s) experience had shown that his activities in
favour of Armenia were not safe. The applicant further pointed out that
there were many inconsistencies in the statements of the prison guards as
reproduced in the Azerbaijani expert medical report when compared to their
statements given to the investigator of the Sabuncu District Prosecutor’s
Office (see paragraphs 23-25 and 43-46 above). These inconsistencies
concerned the critical aspects of the case, which called into question the
credibility of the authorities’ version of the events.
85. The applicant also argued that the Government’s submissions before
the Court were inconsistent and misconceived. In particular, he pointed to
the fact that the Government had not properly indicated the date on which
he had spoken to his wife. Moreover, the Government’s suggestion of his
emotional disturbance after the conversation with his wife had been
unsubstantiated and illogical. The same was true for the Government’s
suggestion that he – a man weighing around 85 kilograms – could hang
himself on a wall nail that was three centimetres long and at height of some
1,90 m above the ground. In any event, the Government provided no
explanation on how it was possible that he had had a shoulder strap of a bag
in his cell, how would he have managed to cut it off and why no bag was
found in the cell following the incident. The Government had also failed to
provide all relevant documents concerning his case and the expert report on
which they relied was unsubstantiated.
86. In the applicant’s view, the above circumstances suggested that the
Azerbaijani authorities were at least complicit in the attempted murder
against him. They had been aware that he had been under a threat from
other prisoners. Moreover, even if it would be accepted that he had
attempted suicide, as the Government incorrectly suggested, then it would
follow that the authorities had failed to take measures to protect his life.
However, the applicant insisted that this was not what had happened.
87. The applicant also argued that the domestic authorities had failed to
conduct an effective investigation into the attempted murder against him.
He stressed that in reality no investigation had been open. The inquiry that
had been conducted was superficial, hastily concluded and ineffective.
Thus, in particular, the authorities had failed to clarify the circumstances in
which he would have a bag belt in the cell; they had inconsistently recorded
the circumstances in which the belt had been found; they had failed to
address the inconsistencies in the prison guards’ statements about the
circumstances of the case; they had failed to interview him (the applicant) or
his wife; and there was no evidence that any forensic examination had been
conducted.
18
LAPSHIN v. AZERBAIJAN JUDGMENT
19
LAPSHIN v. AZERBAIJAN JUDGMENT
20
LAPSHIN v. AZERBAIJAN JUDGMENT
21
LAPSHIN v. AZERBAIJAN JUDGMENT
101. In this connection, the Court also finds it important to stress that,
although it has recognised that it must be cautious in taking on the role of a
first-instance tribunal of fact where this is not rendered unavoidable by the
circumstances of a particular case, where allegations are made under
Article 2 of the Convention, it has to apply a “particularly thorough
scrutiny” even if certain domestic proceedings and investigations have
already taken place (see, for instance, Aktaş v. Turkey, no. 24351/94, § 271,
ECHR 2003‑V (extracts), and Ayvazyan v. Armenia, no. 56717/08, § 88,
1 June 2017, with further references). In the context of Article 2, the Court
has held that any deficiency in the investigation which undermines its
capability of establishing the circumstances of the case or the person
responsible is liable to fall foul of the required measure of effectiveness
(see, for instance, Armani da Silva, v. the United Kingdom [GC],
no. 5878/08, § 233 in fine, 30 March 2016).
22
LAPSHIN v. AZERBAIJAN JUDGMENT
23
LAPSHIN v. AZERBAIJAN JUDGMENT
24
LAPSHIN v. AZERBAIJAN JUDGMENT
paragraphs 94-95 and 102 above; see also Giuliani and Gaggio v. Italy
[GC], no. 23458/02, § 180, ECHR 2011 (extracts)).
113. It therefore suffices for the Court to note that the applicant’s
allegation of attempted murder, with the alleged crime being disguised as
attempted suicide, is plausible, despite certain inconsistencies in his
recollection of the facts, which may indeed be linked to the psychological
effects of the trauma (see paragraph 31 above).
114. The Court notes that even leaving aside the Russian expert report
which the Government challenged as not being prepared by the forensic
experts, the fact remains that this report reached the same conclusion as the
report produced by the Croatian forensic expert, namely that the applicant
had been a victim of attempted murder by strangulation (see
paragraphs 36-37 above). The expertise of the author of the latter report has
not been called into question by the Government. Moreover, that report is
sufficiently detailed and substantiated by the documents available to the
Court (see paragraphs 35, 37-38 and 88 above).
115. The Court further notes that the Government’s attempt to underpin
the attempted suicide version with a motive of the applicant’s frustration for
not being able to see his family for a visit is not convincing. There is no
evidence before the Court that before the impugned incident the applicant
demonstrated, in prison or otherwise, any suicidal tendencies. While the
prison guards’ statements were ambiguous suggesting that at the relevant
time the applicant had not been in a good mood, the senior prison guard Z.I.
explicitly confirmed that the applicant had never before attempted to
commit suicide (see paragraph 23 in fine above). Moreover, the applicant’s
psychiatric assessment in Israel, which the Government did not call into
question, found no suicide risk (see paragraph 31 above).
116. The only suggestion of the applicant’s suicidal tendency was made
in the medical expert report provided by the Government in the proceedings
before the Court (see paragraph 47 above). However, this seems to be based
on a psychiatric assessment of 11 September 2017 that, in so far as it seems
to be referring to the conversations with the applicant, can seriously be
called into question given the applicant’s state of health at the relevant time
(see paragraph 17 above). The same is true for the Government’s suggestion
that on that day the applicant wrote two letters thanking the Azerbaijani
President (see paragraph 10 above). This is particularly hard to believe in
view of the difficulties which the applicant had with his writing right arm,
as recorded in the Israeli medical records (see paragraph 33 above).
117. In any event, it is not convincing that the applicant who was
expecting to be transferred from Azerbaijan to Israel would try to commit
suicide for not having his family for a visit (see paragraphs 9 and 56 above).
It is also noted that in the telephone conversation that took place on
11 September 2017 – the day of the applicant’s pardon by the President –
the prison staff did not disclose to the applicant’s wife that he had allegedly
25
LAPSHIN v. AZERBAIJAN JUDGMENT
attempted suicide and was in a life endangering situation, but rather tried to
conceal the event and his condition (see paragraphs 10 and 56 above).
118. As regards the medical expert report provided by the Government,
it suffices to note that its assessment starts from, and significantly relies on,
the prison guards’ “explanations”, which the Court already found to be
inconsistent (see paragraph 106 above). Moreover, not all the documents on
which it relies, such as the psychiatric and the first intervention medical
team’s report, were disclosed to the Court so it is impossible to ascertain the
consistency of the findings. It is noted, however, that the expert reports, by
relying on the initial medical report, takes as one of the critical indications
of hanging the fact that the applicant had urinary and bowl incontinence (see
paragraphs 42 and 49 above). At the same time, the Court cannot but note
that the Protocol on the examination of the scene recorded no traces of
urinary or bowl incontinence at the scene but, on the contrary, it found the
whole cell to be tidy (see paragraph 22 above). It is therefore difficult to
accept the findings of this report as providing sufficient explanation for the
impugned incident.
119. In sum, having regard to the above findings, and its assessment
under the procedural limb of Article 2 (see paragraphs 103-109 above), the
Court is unable to conclude that the version of attempted suicide holds up. It
follows that the respondent State 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 was put at risk.
120. There has accordingly been a violation of Article 2 of the
Convention under its substantive limb.
26
LAPSHIN v. AZERBAIJAN JUDGMENT
A. Damage
127. The applicant also claimed EUR 5,700 for the costs and expenses
for his legal representation before the Court. He asked that the award be
paid to the account of his representatives.
128. The Government contested this claim considering it
unsubstantiated. They suggested that the applicant’s representatives worked
free of charge.
129. The Court notes that the applicant failed to produce any contract
with his representatives or other relevant documents showing that he had
paid or was under a legal obligation to pay the fees charged by his
representatives. The Court therefore dismisses the claim for costs and
expenses (see Bagirov v. Azerbaijan, nos. 81024/12 and 28198/15, § 120,
25 June 2020, with further references).
C. Default interest
130. The Court considers it appropriate that the default interest rate
should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
27
LAPSHIN v. AZERBAIJAN JUDGMENT
5. Holds, by 6 votes to 1,
(a) that the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance
with Article 44 § 2 of the Convention, EUR 30,000 (thirty thousand
euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amount at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
SOL
VS
28
LAPSHIN v. AZERBAIJAN JUDGMENT – SEPARATE OPINION
29
LAPSHIN v. AZERBAIJAN JUDGMENT – SEPARATE OPINION
taken after his arrival in Israel. In this connection, it must be stressed that
the majority even failed to notice that no date or location had been given for
those photographs. Surprisingly, the Croatian medical expert was able to
ascertain, just by looking at the photographs, quite precisely, that the
applicant had sustained injuries from a “blunt instrument” “several days
before the available photographs” had been taken. Was the Court able to
establish a causal link between the “injuries from a blunt instrument” and
the alleged “attempted murder”, having regard to the above-mentioned fact
concerning the date and location of the photographs taken in Israel?
Absolutely not.
5. Thirdly, in paragraph 113, without any detailed analysis, the majority
states that the applicant’s allegation of attempted murder is “plausible”. The
last sentence of that paragraph attempts to attenuate the said speculative
statement. A reference should be made to the Court’s conclusions in Malik
Babayev v. Azerbaijan (no. 30500/11, 1 June 2017, § 69), stating in quite
similar circumstances that “any allegation that the applicant’s son was
murdered would be purely speculative” (with further references). The
second last sentence of paragraph 114 states that the expertise of the
Croatian forensic expert has not been called into question. In my view, that
is disputable. Firstly, it appears from the materials in the case file that the
Government had drawn the Court’s attention to the above discrepancies in
the report (see, paragraph 7 above). Secondly, the forensic report submitted
by the Government noted that “the traces depicted on the photographs taken
in Israel ... w[ere] an artefact” (paragraph 48). It should be noted that those
injuries were absent from the medical record of the Merkezi Clinic, and
only appeared in Israel.
6. Fourthly, the majority also casts doubt on the validity of the
applicant’s two letters to the Azerbaijani President. That doubt is based on
the Israeli experts’ observation concerning the applicant’s inability to raise
his right arm (see paragraph 33). In paragraph 116, the judgment elaborates
on the findings of the Israeli experts and refers to the applicant’s difficulties
with his writing (right) arm. I wonder why a person who is unable to move
his hand cannot write a short letter on a hard surface, and the judgment does
not attempt to explain that matter. On this last point, I should also note that
in his submissions the applicant had not commented on the forensic
graphology report submitted by the Government. Therefore, the statement
has no meaningful purpose to serve in this context. Accordingly, the last
sentence of paragraph 116 that “this is particularly hard to believe because
of the difficulties which the applicant had with his writing right arm, as
recorded in the Israeli medical records” is to be considered as speculative.
7. Fifthly, the Court should, in my view, avoid such speculative
statements as “it is illogical that the applicant who was expecting to be
transferred from Azerbaijan to Israel would try to commit suicide”
(paragraph 117). Adhering to the facts of the case, we can see that,
30
LAPSHIN v. AZERBAIJAN JUDGMENT – SEPARATE OPINION
31