September 28, 2021
By Dr. Ramute Remezaite
The significance of evidence in the adjudication of individual human rights complaints by the European Court of Human Rights (Court) is indisputable: the Court will normally rely on the evidence provided by the parties and the facts established in the domestic judicial proceedings. In some instances, such as those relating to incidents in custody, not examined in the domestic proceedings, the Court is faced with a difficult task to adjudicate on the fundamental facts of the case. This difficulty is further increased where parties submit evidence that is contradictory, and renders the Court to increasingly rely on evidence, such as expert witnesses, being independent of the state authorities’ view, as recently observed in the case of Lapshin v Azerbaijan.
The case concerns an incident during the imprisonment of Alexander Lapshin in Azerbaijan in 2017, and the ensuing inquiry by the prosecutor’s office. Mr. Lapshin, a blogger, an Israeli, a Russian and a Ukrainian national, travelled to the Nagorno-Karabakh region in April 2011 and October 2012 in a manner considered unlawful under Azerbaijani law. On 20 July 2017, he was convicted by an Azerbaijani court for crossing the State border to Nagorno-Karabakh outside the checkpoints and sentenced to three years’ imprisonment and a mandatory expulsion from Azerbaijan after he had served his prison sentence. Mr. Lapshin claimed that four days before his release, on the night of 10 September 2017, he was attacked in his cell, where he was held alone, by a group of masked men. He reported that he had his hands and legs held, a pillow was put on his face, and he was strangled and beaten until he lost consciousness. He was expelled from Azerbaijan following his discharge from hospital several days later. The Azerbaijani Government denied that the alleged attack happened, but maintained that the incident was a suicide attempt by Mr. Lapshin.
In his application to the Court, Mr. Lapshin complained under Article 2 of the Convention in that there was an attempt on his life in prison, and that the domestic authorities had failed to effectively investigate the circumstances of the case and identify those responsible. The Government claimed that he attempted to take his own life and that he allegedly demonstrated suicidal tendencies in custody.
The Court found a violation of Article 2 both under its substantive and procedural limbs in that the Azerbaijani authorities failed to explain what happened to Mr. Lapshin and to conduct an effective investigation into the incident. The Court reiterated its established principle that Article 2 may be invoked ‘not only in the event of the death of the victim’ but also in situations putting a person’s ‘life at real and imminent risk’ and where ‘he or she has suffered injuries that appear life-threatening as they occur, even though he or she ultimately survived’ (para 71). Relying on the evidence provided by Mr. Lapshin, the Court concluded that the applicant’s life was ‘at serious and imminent risk’ and that he survived due to an urgent medical intervention.
Relying on the well-established obligation on state authorities to provide ‘a satisfactory and convincing explanation’ for any injuries suffered in custody, under their exclusive control and knowledge, the Court referred to various omissions and discrepancies in the investigator’s findings as undermining the investigation’s capability of establishing the circumstances of the incident. Consequently, many obvious questions concerning the incident, which put Mr. Lapshin’s life at risk, while he remained in the custody of the Azerbaijani authorities, remained unanswered. On the basis of these investigatory deficiencies, the Court concluded that the authorities had failed to take all the necessary evidentiary measures to satisfy its burden of proof to explain what happened to Mr Lapshin in custody, and that any such deficiency is liable to fall foul of the required measure of effectiveness of the investigation, in violation of Article 2. Following from that, the Court, having assessed the probative value of the evidence provided by the Government, concluded that the authorities’ version of attempted suicide did not hold up and that it failed to refute Mr. Lapshin’s version of events, and the accompanying evidence. The Court consequently established that the authorities were responsible for the incident during which Mr. Lapshin’s life was put at risk, in breach of its obligation to protect his right to life.
This case is significant in how the Court addressed the challenge of adjudicating on the fundamental facts of the case, i.e. to establish whether Mr. Lapshin was attacked in his prison cell or if in fact he had attempted suicide in custody, something that ‘in normal circumstances’ will have already been established by the national courts. The difficulty for the Court was particularly increased as the events occurred in a custodial setting and the Court was presented with ‘expert evidence’ by both parties, which was totally contradictory, leaving it for the Court to decide which version of the events was more plausible. This judgment is among the latest contributions to the Court’s ever developing case law on the use of expert evidence in cases concerning incidents in custody, violating Articles 2 and 3 of the Convention. In cases like this one, where the domestic authorities failed to take all the necessary investigatory steps to collect evidentiary material for the domestic courts to establish the facts of the incident, the applicants, and the Court increasingly rely on expert evidence as a way to establish what happened.
In Article 2 and 3 cases, where incidents take place in custody and the relevant information is exclusively in the hands of the authorities, it may be difficult for applicants to obtain the necessary evidence from the prison authorities. In such cases, forensic expert witnesses can play a vital, and even decisive, role in addressing the evidentiary problem and, in fact, in establishing the State’s responsibility, as demonstrated by this judgment. In light of the autonomous conception of evidence in the Convention system, the Court appears to increasingly rely on forensic expert reports to decide on cases as evidence carrying solid authority and credibility for its expertise, independence and impartiality.
Such forensic expert reports are of particular significance in cases where the domestic authorities fail to undertake basic investigatory steps, such as (timely) medical examinations or where forensic examination reports are not sufficiently accurate or raise suspicions or controversy. In other instances, such evidence may be useful where an issue in dispute lies beyond the competence of the litigants, and even the Court, and the technical or scientific expertise of an expert can help understand and analyse the matter. For example, in the case of Mr Lapshin, he was not examined by a forensic expert and no forensic assessment of his injuries was carried out following the incident (para 104). In the absence of a timely forensic examination, which could have enabled an expert to reach crucial conclusions as to the existence, time and nature of Mr. Lapshin’s injuries, the Court relied on the report of a Croatian forensic expert, commissioned by the applicant, establishing that Mr Lapshin had been a victim of attempted murder by strangulation, as a plausible substantiation of his version of events.
Forensic reports commissioned by applicants have also played a fundamental evidentiary role in cases where forensic examinations by the domestic authorities failed to either determine the cause of death or establish the fact of natural death. In Aktaş v Turkey, relating to torture and death in custody, the Court, relying on the deficiencies and failings of the official autopsy identified by an independent forensic expert commissioned by the applicant, concluded that the Government’s forensic evidence did not suffice to rule out the possibility of death as a result of maltreatment of the victim in detention. Similarly, in Tanlı v Turkey, the Court concluded that the Turkish authorities failed to show that the victim died of natural causes, as claimed by the Government. The Court relied on the report of an independent forensic expert commissioned by the applicant, concluding that the official autopsy findings were insufficient to substantiate a natural cause of death, and no other evidence had been provided to support such allegations. In Salman v Turkey, relating to the death of the applicant’s husband in prison, the European Commission of Human Rights not only relied on the report of a forensic expert instructed by the applicant, but also itself commissioned an expert opinion on the medical issues in the case independently from either of the parties. The Court, relying on both reports indicating that no plausible explanation had been provided by the Government for the various injuries, established the Government’s responsibility for the death of the applicant’s husband.
In such cases, where the Court is provided with expert evidence by both parties, and such evidence will often present diverging views, it is faced with a difficult task to assess the credibility of such evidence and establish which version of events is more plausible. Such cases indicate that the Court’s practice is to rely on a number of factors to determine the significance and the probative value of expert evidence.
In Lapshin, where both the Government and Mr. Lapshin relied on forensic expert reports, supporting their two diverging versions of events, the Court relied on its considerations of admissibility, credibility and probative value of such reports as the fundamental basis for its findings, establishing that Mr. Lapshin’s allegation of attempted murder was more plausible. The Azerbaijani Government submitted a medical expert report produced by a group of Azerbaijani experts supporting the finding of the suicide attempt reached by the domestic inquiry; Mr. Lapshin, in turn, submitted two expert medical reports, which he commissioned independently – a report of a group of Russian doctors and a report of a Croatian forensic expert – both concluding that Mr. Lapshin was subjected to a violent attack and strangulation attempt in prison. On the basis of the totality of its evidentiary considerations, the Court ruled that the applicant’s alleged version of events was more ‘plausible’ than that put forward by the Government. The Court heavily relied on the report of the Croatian forensic expert, substantiating its probative value with two points: the report had not been challenged by the Government and that it was ‘sufficiently detailed and substantiated’ (para 114). The Court further dismissed the Government’s medical expert report in that it significantly relied on the prison guards’ ‘explanations’, which the Court found as inconsistent. It sufficed for the Court to declare that it was unable to conclude that the Government’s version of attempted suicide ‘held up’, establishing the State’s failure to satisfy the burden of proof to provide a satisfactory and convincing explanation as to what had happened to Mr. Lapshin in prison.
In other cases, the Court has relied on expert evidence to effectively rebut the Government’s version of events, where the authorities failed to provide any comments or explanations to questions raised by experts commissioned by the applicant. In another of EHRAC’s cases, Dzidzava v Russia, concerning the death of the applicant’s husband in a bus during his deportation from Russia to Georgia, for example, the Court referred to the various inconsistencies regarding the findings of the Russian authorities about the victim’s death and concluded, in the absence of any clarifications by the Government, that it had failed to explain what had happened to him. In Salman, it relied on forensic expert evidence that identified a number of injuries of the applicant, which were left unexplained in official state forensic reports.
The Lapshin case and other examples indicate the growing use of forensic expert evidence both by victims or applicants independent of the Government’s views, and the Court in their respective roles to substantiate their submissions and decisions. Such reports provide substantive assessment of the Government’s evidence such as medical and forensic reports, autopsy reports, photographs and any other related evidence, and identify any deficiencies or gaps; in some instances, where feasible, experts offer their own judgment of the possible causes of death on the basis of the information available to them. It equips victims with a significant piece of evidence to support their allegations, which they may not otherwise be able to do, plausibly. Equally, it enables the Court to reach a sufficiently informed decision on the Government’s obligation to provide explanations about such incidents. As the Court is not bound by strict rules of evidence, and may rely on all forms of evidence provided by the parties, expert evidence is an efficient and perhaps sometimes the only way for the victims to substantiate their submissions about incidents where the evidence is in the exclusive possession of the authorities.
The increasing efforts of victims and human rights groups to involve expert witnesses in their human rights litigation and the Court’s reliance on expert reports as fundamental evidence to establish facts and rule on the extent of a state’s responsibility indicates its growing significance in strategic litigation. Given the degree of flexibility with which the Court evaluates the evidence, victims alleging Article 2 and 3 violations in custody in particular are given an opportunity to adduce all types of evidence, which they can obtain, particularly given the likely difficulties of accessing the primary evidentiary material exclusively in the hands of the authorities. In turn,it enables the Court to adjudicate on incidents, which are otherwise in the exclusive knowledge and control of the authorities, particularly where the authorities do not disclose full information or take all the necessary investigatory steps to establish the circumstances and identify those responsible.