CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 10 septembre 2020

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margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sD11CFAB7 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .sFBC99493 { font-style:italic } .s51DFF5CF { margin-top:0pt; margin-left:34pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sE5BF05B1 { width:2.33pt; font:7pt 'Times New Roman'; display:inline-block } .s7F175FE6 { margin-top:0pt; margin-left:51.05pt; margin-bottom:0pt; text-indent:-17.05pt; text-align:justify } .sE5C1F6E3 { width:3.33pt; font:7pt 'Times New Roman'; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s8934192D { margin-top:36pt; margin-bottom:0pt; text-align:center } .s4DE88426 { width:180.29pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block }   FIFTH SECTION CASE OF SHURIYYA ZEYNALOV v. AZERBAIJAN (Application no. 69460/12)   JUDGMENT Art 3 (substantive) • Inhuman or degrading treatment • Death in custody from alleged pulmonary embolism • Failure of Government to explain origin of serious injuries seen on body • Discrepancy between forensic report and video-recording of the deceased’s body filmed before funeral ceremonies • Conclusion to be drawn from recurrence of serious omissions in post-mortem forensic reports • Court not excluding injuries resulting from acts of torture despite insufficient proof Art 2 (substantive) • Life • Failure of authorities to convincingly account for circumstances of death • Undisputed deceased not suffering from any life-threatening illness on admission to custody • Forensic report, failing to record injuries on body or analyse question of causal link between death and injuries, not considered reliable proof • Investigative authorities failure to provide information to family or to cooperate with European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) Art 2 and 3 (procedural) • Lack of effective investigation • No action taken by authorities following dissemination of video-recording showing injuries not mentioned in forensic report • Refusal to provide family with copy of forensic report or inform them of progress and outcome of investigation • Strong inferences of attempt to prevent effective investigation being drawn from authorities accusation of defamation against family of deceased   STRASBOURG 10 September 2020 FINAL   10/12/2020   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Shuriyya Zeynalov v. Azerbaijan, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Síofra O’Leary, President,   Gabriele Kucsko-Stadlmayer,   Ganna Yudkivska,   Mārtiņš Mits,   Lәtif Hüseynov,   Lado Chanturia,   Mattias Guyomar, judges, and Victor Soloveytchik, Deputy Section Registrar, Having regard to: the above application against the Republic of Azerbaijan lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Mr Shuriyya Mahmud oglu Zeynalov ( Şüriyyə Mahmud oğlu Zeynalov – “the applicant”), on 16 October 2012, the parties’ observations, Having deliberated in private on 7 July 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The applicant alleged that his son had died in detention as a result of torture by agents of the Ministry of National Security (“the MNS”) of the Nakhchivan Autonomous Republic (“the NAR”), and that the domestic authorities had failed to carry out an effective investigation in that regard, in violation of Articles 2 and 3 of the Convention. THE FACTS 2.     The applicant was born in 1938 and lives in Nakhchivan. He was represented by Mr R. Mustafazade and Mr   A.   Mustafayev, lawyers based in Azerbaijan. 3.     The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Əsgərov. THE ARREST AND death of the applicant’s son 4.     The applicant’s son, Turaj Zeynalov (T.Z.) who was born in 1980, worked as a driver at Nakhchivan International Airport at the time of the events in question. 5.     According to the Government, on 24 August 2011 T.Z. was invited to the MNS of the NAR where he was questioned as a witness. The questioning began at 10.15 a.m. and ended at 12.40 p.m. On the same day at 4.30 p.m. he was arrested as a suspect and he was allowed to make a phone call informing his father and brother of his arrest. On the same day, from 5.25 p.m. until 6.35 p.m., T.Z. was questioned as a suspect in the presence of a State appointed lawyer. Following the questioning, he was taken to the Pre-trail Detention Facility of the Ministry of Internal Affairs of the NAR. On 26 August 2011 he was taken to the MNS of the NAR where he was charged with the criminal offence of high treason as provided for by Article   274 of the Criminal Code and was questioned as an accused. It appears from the documents in the case file that he was accused of collaboration with the Iranian intelligence service. On the same day following the questioning he was taken to the Nakhchivan City Court which ordered his pre-trial detention. From 26 to 28 August 2011, he was detained at the Pre-trial Detention Facility of the Ministry of Justice of the NAR. 6.     According to the Government, on 28 August 2011 the applicant was taken to the premises of the MNS of the NAR for questioning. However, he suddenly felt ill and an ambulance was called. T.Z. was provided with first aid, but his state of health continued to deteriorate and the ambulance took him to hospital. He died on his way to hospital. His family was immediately informed of his death. In support of their version of events, the Government relied on a record of a request for medical aid ( tibbi yardımın çağırılması barədə protokol ) prepared by an investigator at the MNS of the NAR and an explanation ( arayış ) from the emergency service of the Ministry of Health of the NAR. The record of a request for medical aid was dated 28 August 2011 and indicated that it was drawn up from 11.30 a.m. until 11.55 a.m. 7.     Following T.Z.’s death, a video-recording of his body was given to the media by members of his family, who had filmed the corpse before the funeral ceremonies. From the video-recording, it appears that there were a number of visible bruises on T.Z.’s shoulders, elbows, knees and buttocks. Several tumours on various parts of T.Z.’s body were also visible. The incident was widely covered and commented on in the media. Criminal inquiry 8.     The documents submitted by the Government in their observations indicate that on 28 August 2011 an investigator ordered a post-mortem examination of T.Z.’s body, which was carried out on the same day and, therefore, only several hours after his death. The expert drew up report no.   10 dated 5 September 2011 in which he concluded that the cause of death had been pulmonary embolism as a result of vascular thrombosis of the lower limbs ( aşağı ətrafların venalarının trombozu hesabına əmələ gəlmiş ağciyar arteriyasının tromboemboliyası ). The expert found that there was no injury or trace of injury or damage to T.Z.’s body or clothing, but noticed seven tumours ( törəmə ) on various parts of his body. He also indicated that post-mortem lividity ( meyit ləkələri ) had developed on the back of the corpse ( gövdənin arxa səthində ). 9.     The documents submitted by the Government in their observations further indicate that by a decision of 9 September 2011 an investigator at the Nakhchivan City Prosecutor’s Office declined to institute criminal proceedings in connection with T.Z.’s death. The decision relied on the conclusions of report no. 10 and statements given by agents of the MNS. The decision also referred to statements given by the applicant, T.Z.’s wife and his two brothers, who had stated that there had been tumours on T.Z.’s body because he had been suffering from skin cancer and had been operated on several times because of this. 10.     According to the applicant, on an unspecified date in 2011 T.Z.’s family asked the MNS to investigate the circumstances of his death. 11.     On an unspecified date in 2011 T.Z.’s family was provided with a document entitled “extract from decision” and dated 26 November 2011. By means of this document, the chief investigator at the MNS of the NAR informed the family that on 24   August 2011 T.Z. had been arrested within the framework of criminal proceedings instituted under Article 274 of the Criminal Code, and on 26 August 2011 he had been charged with the criminal offence of high treason. However, on 8 September 2011 the criminal proceedings in question had been discontinued owing to T.Z.’s death. The document was silent as to the circumstances of T.Z.’s death. 12.     On 12 December 2011 the lawyer of T.Z.’s spouse wrote to the Prosecutor General and the MNS of the NAR, asking them to provide him with all documents relating to the investigation into T.Z.’s death, such as forensic reports and procedural decisions, as well as the documents concerning the criminal proceedings instituted against T.Z. 13.     On 19 December 2011 the lawyer wrote to the Prosecutor General of the Republic of Azerbaijan and the Ombudsman, noting that T.Z.’s family had not been informed of any investigation into T.Z.’s death, and had not been provided with any document relating to the investigation into his death. 14.     On 29 December 2011 the chief investigator at the MNS of the NAR sent a letter to the lawyer in which, without replying to the lawyer’s requests, he accused the lawyer and the deceased’s family of spreading defamatory information about the activity of the MNS. 15.     By a letter of 30 December 2011, the Ombudsman informed the lawyer that following an investigation carried out by the prosecuting authorities of the NAR, it had been established that T.Z. had not been ill-treated by agents of the MNS and had died of a pulmonary embolism. In this connection, the Ombudsman relied on report no. 10 dated 5 September 2011. However, the Ombudsman did not provide T.Z.’s family with a copy of the above-mentioned forensic report or any other document relating to the investigation into T.Z.’s death. 16.     On 5 March 2012 the lawyer wrote to the Prosecutor General and the MNS of the Republic of Azerbaijan, asking for documents relating to the investigation into T.Z.’s death. 17.     On 19 March 2012 the Prosecutor General’s Office informed the lawyer that his request had been examined and he could apply to the prosecuting authorities of the NAR in order to obtain the relevant documents. 18.     Relying on the letter of 19 March 2012 from the Prosecutor General’s Office, the lawyer applied to the Prosecutor General of the NAR, asking him to provide the deceased’s family with the relevant documents. However, he did not receive any reply to his request. 19.     On 3 May 2012 the chief investigator at the MNS of the NAR sent a letter to the applicant, accusing him of defamation on account of the content of a complaint that he had sent to the President of the Republic of Azerbaijan concerning the activity of the MNS. The investigator further noted that T.Z. had not been ill-treated and had died of a pulmonary embolism. In this connection, he relied on report no. 10, but failed to provide the applicant with a copy of the report in question or any other document relating to the investigation into T.Z.’s death. 20.     By a letter of 16 May 2012, the Prosecutor General’s Office informed the applicant that T.Z. had not been ill-treated in the MNS and his death had resulted from pulmonary embolism. It was also indicated that by a decision of 9 September 2011 the Nakhchivan City Prosecutor’s Office had declined to institute criminal proceedings in connection with T.Z.’s death. However, the Prosecutor General’s Office did not provide the applicant with a copy of the decision in question. 21.     On 21 May 2012 the lawyer of T.Z.’s spouse lodged an application with the Sabail District Court, asking the court to declare unlawful the domestic authorities’ failure to provide T.Z.’s family with the documents relating to the investigation into his death, and to order them to provide the family with the relevant documents. 22.     On 24 May 2012 the Sabail District Court refused to accept the application for examination. It found that it had been incorrectly lodged under the procedure for judicial review of prosecuting authorities’ actions or decisions, as provided for by Articles 449-450 of the Code of Criminal Procedure (“the CCrP”). The court held that this type of complaint should be made in line with the procedure for administrative courts, in accordance with Article 2 of the Code of Administrative Procedure. 23.     On 22 June 2012 the Baku Court of Appeal upheld the first-instance court’s decision. 24.     On 12 October 2012 the applicant, represented by the same lawyer who had previously represented T.Z.’s spouse, lodged an application against the Prosecutor General’s Office and the MNS of the NAR with the Nakhchivan Administrative Economic Court. He asked the court to order the respondent parties to provide him with the documents relating to the investigation into the death of his son, and to declare their inaction in that regard unlawful. 25.     By a letter dated 17 October 2012 and signed by its president, the Nakhchivan Administrative Economic Court informed the applicant that his application was outside its jurisdiction and that he could lodge a complaint with the relevant court under the procedure for judicial review of prosecuting authorities’ actions or decisions, in accordance with the CCrP. 26.     On 2 November 2012 the applicant appealed against this letter to the Supreme Court of the NAR, reiterating his previous complaints. The applicant did not receive any reply to his appeal. Allegations published in the media concerning the circumstances of T.Z.’s death 27.     In December 2012 I.M., a person who claimed to be a former agent of the MNS of the NAR and who was in Russia at that time, stated in the media that T.Z. had been tortured on the premises of the MNS in Nakhchivan from 24 to 27   August 2011, and that he had died as result of torture. 28.     In January 2013 I.M. applied for asylum in Russia, claiming to be a key witness to T.Z.’s death. The domestic proceedings giving rise to the refusal of his asylum request and an extradition request by the Azerbaijani authorities within the framework of criminal proceedings instituted against I.M. for fraud were the subject matter of the Court’s decision in Ibragim   Musayev v. Russia (no. 55091/13, 23 September 2014). RELEVANT LEGAL FRAMEWORK Relevant domestic law 29.     The relevant provisions of the CCrP are described in detail in the Court’s judgment in Huseynova v. Azerbaijan (no. 10653/10, §§ 61-62, 13   April 2017). Relevant International material 30.     On 18 July 2018 the Committee for the Prevention of Torture and Inhuman or Degrading treatment or Punishment (“the CPT”) published the report on the visit to Azerbaijan carried out by the CPT from 13 to 20   December 2012. The relevant parts of the report read as follows: “F. The Z. case 56. On 9 September 2011, the CPT wrote to the Azerbaijani authorities concerning the death in August 2011 of T. Z. (aged 31) who, at the time, was remanded in custody in the Nakhchivan Autonomous Republic of Azerbaijan. The Committee had received allegations that Mr Z. had died as a result of injuries inflicted by officials of the Ministry of National Security. This was the first in a series of letters from the CPT on the same subject, aimed at obtaining detailed information on investigations carried out into the death of Mr Z. as well as copies of all relevant medical/autopsy reports. Some of the information requested was subsequently provided by the Azerbaijani authorities but certain documents of a medical nature remained outstanding. As already indicated, much of this remaining information – and in particular the autopsy report – was finally provided during the 2012 visit. 57. According to the information provided by the Azerbaijani authorities, a protocol of detention was drawn up in respect of Mr Z. in the afternoon of 24 August 2011 and he was placed in the temporary detention facility of the Ministry of Internal Affairs of the Nakhchivan Autonomous Republic of Azerbaijan. He was subsequently remanded in custody on 26 August and transferred the same day to the Pre-trial detention facility of the Ministry of Justice. Apart from some skin deformations in the chest and navel areas, no marks were observed on his body on his admission to the facility, and the diagnosis during the preliminary examination carried out on 27 August after Mr Z.’s admission to the Pre-trial detention facility was "practically healthy". At approximately 9.00 on 28 August, Mr Z. was transferred from the Pre-trial detention facility to the Ministry of National Security of Nakhchivan "for the purposes of conducting necessary investigative activities", following a written request from an investigator of that Ministry. Mr Z. began to feel unwell en route to the Ministry of National Security and, on his arrival there, he was not able to make a statement. An ambulance was called and he was transferred to Nakhchivan City Medical Diagnostic Centre; on his arrival at the Diagnostic Centre, he was found to be dead (confirmed by a certificate issued by the Centre at 13.35 the same day). A pre-investigative inquiry was opened by the Prosecutor’s Office of the City of Nakhchivan on 28 August 2011. An autopsy of Mr Z.’s body was carried out at the "Forensic Medicine and Pathological Anatomy Unification" of the Nakhchivan Autonomous Republic of Azerbaijan on the same day (between 17.00 and 18.30). According to the autopsy’s conclusions dated 8 September: no signs of injury were found on the body or clothes of Mr Z.; the cause of his death was "thrombosis of lower parts veins resulting in thromboembolism of lung artery"; the time of death was 28 August. On 9 September, the prosecutor’s office closed the pre-investigative inquiry with the decision not to initiate a criminal case. 58. The autopsy report and those photographs provided have been examined by forensic doctors within the Committee. Video footage of the body of Mr Z., apparently taken by his relatives after the body had been returned to them, has also been examined. This material gives rise to the following observations: - in the photographs provided to the delegation, only the upper part of the body is undressed; in order for a proper assessment to be made, the photographs of the undressed lower part of the body should also have been provided; - in the video footage, visible lesions can be observed on both gluteal regions and in the right coccygeal region, in the form of bluish violet discoloration of the skin, clearly distinct from post-mortem lividity and indicative of bruises and haematomas; no description of such lesions is provided in the autopsy report; - pathological findings described in the autopsy report and notably: (external examination) thromboses in the lower extremities (“Thrombus are detected at the both lower areas”); (internal examination) thrombotic embolus in the pulmonary artery (“At the cut of the lung artery there was freely disposed thrombus mass at reddish-grey colour was detected”) and sub-epicardial haemorrhages (“Few dot alike haemorrhages are detected at the epicardium”) are not documented in the photographs made available to the delegation; - in the autopsy report, no reference is made to incisions having been made through the soft tissue of the lower extremities to enable examination of superficial and deep veins; and such incisions are not apparent on the video footage; - the results of the toxicological analyses and of the histological examination of sampled organs have not been included in the autopsy report and have not been otherwise provided to the delegation. 59. The CPT considers 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 (“thrombosis of lower parts veins resulting in thromboembolism of lung artery”). To reach such a conclusion would require a detailed examination of veins on both lower extremities including histological assessment of any thrombus found for evaluation of eventual vein pathology and maturity of the thrombus. Further, taking into account the circumstances of Mr Z.’s death, i.e. rapid deterioration of the health of a young man while in detention, other possible causes of death should have been fully explored, in particular through examination of sub-cutaneous tissues by full exposure of the soft tissues and musculature on the back of the body including the extremities (so-called “peel-off” procedure). Finally, the CPT notes that none of the principal findings in the autopsy report, notably the absence of injuries to the body (and more specifically the lower part), the finding of a thrombus in the lower extremities and of thrombotic embolus in the pulmonary artery, are supported by photographic evidence.” 31.     On 18 July 2018 the CPT published the report on the visit to Azerbaijan carried out by the CPT from 29 March to 8 April 2016. The relevant parts of the report read as follows: “6. ... The delegation also noted with regret that some of the information provided in the responses to previous CPT reports turned out to be untrue –for example as regards ... the failure to re-open the inquiry into the death of T. Z. The CPT must again stress that the principle of co-operation encompasses the obligation to provide accurate information to the Committee and refrain from deceptive action of the kind referred to above.” THE LAW LEGAL CHARACTERISATION OF THE APPLICANT’S COMPLAINTS 32.     The applicant complained under Articles 2 and 3 of the Convention that his son had been subjected to torture by agents of the MNS of the NAR, that he died as a result and that the domestic authorities had failed to conduct an effective investigation in that regard. 33.     Articles 2 and 3 of the Convention, relied on by the applicant, read as follows in so far as relevant: Article 2 “1.   Everyone’s right to life shall be protected by law. No one shall be deprived of his life ...” Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 34.     The Court considers that in the specific circumstances of the case, having regard to the evidence before it and the parties’ submissions, the question whether the applicant’s son was ill-treated in custody contrary to Article 3 must be examined separately from the complaint under Article 2 that he died as a result of such alleged ill-treatment. In order to follow the chronological order of the events, it will therefore start with examining the above-mentioned complaint under the substantive aspect of Article 3 and proceed after that with analysis of the related complaint under Article 2. 35.     On the other hand, as to the procedural limb of those two provisions, in so far as the complaints concerning the investigation into the alleged ill ‑ treatment and into the death of the applicant’s son concern the same alleged deficiencies and the same domestic proceedings, it is appropriate to examine them jointly under Articles 2 and 3. ALLEGED ILL-TREATMENT IN VIOLATION OF ARTICLE 3 Admissibility The parties’ submissions 36.     The Government submitted that the application should be declared inadmissible because the applicant had failed to exhaust domestic remedies. In particular, they noted that all the complaints sent to the domestic authorities, including the complaints lodged with the Sabail District Court and the Baku Court of Appeal, had been submitted by T.Z.’s wife and not by the applicant. The applicant had lodged complaints with only the administrative courts, and that could not be regarded as a remedy in respect of his complaints. Therefore, without discussing the relevance of the decisions of the Sabail District Court and the Baku Court of Appeal, the Government submitted that the applicant had failed to exhaust domestic remedies. 37.     The applicant disagreed with the Government’s submissions. He submitted that he had lodged a complaint with the administrative courts because the Sabail District Court and the Baku Court of Appeal had expressly ruled in their decisions that his complaints should be examined by the administrative courts. He also pointed out that he and T.Z.’s wife had been represented by the same lawyer, Mr   A.   Mustafayev, in the domestic proceedings, and that both of them could act as T.Z.’s legal heirs before the domestic authorities. The Court’s assessment 38.     The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should be made first to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, although there is no obligation to have recourse to remedies which are inadequate or ineffective (see Akdivar and Others v. Turkey , 16 September 1996, §§ 65-67, Reports of Judgments and Decisions 1996 ‑ IV; Aksoy v. Turkey , 18 December 1996, §§   51-52, Reports 1996-VI; and Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 71-73, 25 March 2014). 39.     The Court further reiterates that the object and purpose of the Convention, a treaty for the collective enforcement of human rights and fundamental freedoms, requires that its provisions be interpreted and applied in the light of its special character and so as to make its safeguards practical and effective (see Yaşa v. Turkey , 2 September 1998, § 64, Reports of Judgments and Decisions 1998 ‑ VI). 40.     Turning to the circumstances of the present case, the Court observes at the outset that it is clear from the documents in the case file that the authorities considered both of them, the applicant and T.Z.’s wife, to be entitled to pursue complaints and proceedings in relation to T.Z.’s death and the alleged ill-treatment. At no point did any of the authorities involved object to the locus standi of either of them (see paragraphs 8-26 above). 41.     As to the Government’s argument that it had been T.Z.’s wife and not the applicant who had pursued most of the complaints, the Court observes that T.Z.’s family, including the applicant and T.Z.’s wife, asked the MNS to investigate the circumstances of T.Z.’s death and were the addressees of letters and decisions sent to them by the authorities (see paragraphs 10-20 above). They, therefore, apparently acted in concert with the aim to obtain justice for the alleged ill-treatment of T.Z. and his death. Furthermore, the same lawyer acted for the applicant and T.Z.’s wife. It is also evident that, having regard to the powers vested in the MNS and the prosecuting authorities, the applicant and T.Z.’s wife clearly brought their complaints to the attention of the relevant domestic authorities and provided them with the opportunity to investigate, establish the facts and, in case of criminal behaviour on the part of State agents, punish them in accordance with the law. 42.     The Court further notes that, in the present case, the Government submitted that the applicant had failed to exhaust domestic remedies because he had not lodged complaints with the Sabail District Court and the Baku Court of Appeal, without specifying what kind of complaints the applicant should have lodged with those courts. Even assuming that the Government was referring, in their objection, to the possibility of challenging the actions or decisions of the investigating authorities before the domestic courts in accordance with Article 449 of the CCrP, the Court notes that in the present case, the applicant was never provided with a copy of the Nakhchivan City Prosecutor’s Office’s decision of 9 September 2011 declining to institute criminal proceedings in connection with T.Z.’s death. In those circumstances, the Court does not see which decision or action by the prosecuting authorities the applicant should have challenged before the domestic courts before lodging his application with the Court. 43.     The Court also cannot overlook the fact that the applicant, having no access to the material in the case file during the course of the investigation, could not have effectively challenged the investigating authorities’ decisions or actions in court (compare Estamirova v. Russia , no. 27365/07, § 94, 17   April 2012, and Huseynova v. Azerbaijan , no. 10653/10, § 82, 13 April 2017). 44.     For the above reasons, the Court finds that the applicant’s complaint cannot be rejected for non-exhaustion of domestic remedies, and that the Government’s objection in this regard must be dismissed. 45.     The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. Merits The parties’ submissions 46.     The applicant contested the official version of events, maintaining that his son had been tortured in detention. In that connection, he relied on the statements made by I.M. to the media and the video-recording of his son’s body filmed before the funeral ceremonies. 47.     The Government contested the applicant’s submissions, stating that his son had never been ill-treated or tortured in detention. The Court’s assessment (a)    General principles 48.     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 (see Selmouni v. France [GC], no.   25803/94, § 95, ECHR 1999 ‑ V; Labita v. Italy [GC], no. 26772/95, §   119, ECHR 2000 ‑ IV; and Bouyid v. Belgium [GC], no. 23380/09, § 81, ECHR 2015). 49.     Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. Assessment of this minimum level depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom , 18 January 1978, §   162, Series A no. 25; Kudła v. Poland [GC], no.   30210/96, § 91, ECHR   2000-XI; and Peers v. Greece , no. 28524/95, §   67, ECHR 2001-III). The Court has considered treatment to be “inhuman” because, inter alia , it was premeditated, applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering. It has deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see Kudła , cited above, § 92). In determining whether a particular form of ill-treatment should be classified as torture, consideration must be given to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment. As noted in previous cases, it appears that it was the intention that the Convention should, by means of such a distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering. In addition to the severity of the treatment, there is a purposive element to torture, as recognised in the United Nations Convention against Torture, which in Article 1 defines torture in terms of the intentional infliction of severe pain or suffering with the aim, inter alia , of obtaining information, inflicting punishment or intimidating (see Gäfgen v. Germany [GC], no. 22978/05, § 90, ECHR 2010). 50.     As to the distribution of the burden of proof, the Court reiterates that where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Where an individual is taken into police custody in good health but is found to be injured afterwards, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see Selmouni , cited above, § 87, and Mustafa Hajili v. Azerbaijan , no.   42119/12, § 36, 24 November 2016). 51.     In assessing evidence, the Court adopts the standard of proof “beyond reasonable doubt”. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, among many other authorities, Avşar v. Turkey , no. 25657/94, § 282, ECHR 2001-VII). The Court is sensitive to the subsidiary nature of its role and recognises 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 (see, for example, El ‑ Masri v. the former Yugoslav Republic of Macedonia [GC], no.   39630/09, § 155, ECHR 2012). Nevertheless, where allegations are made under Article 3 of the Convention, the Court must apply particularly thorough scrutiny, even if certain domestic proceedings and investigations have already taken place (see Avşar , cited above, §§ 283-84, and Muradova v. Azerbaijan , no. 22684/05, § 99, 2 April 2009). (b)    Application of these principles to the present case 52.     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. 53.     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. 54.     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. 55.     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 (see, as regards the procedural complaint, paragraphs 82 and 86 below). 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 (see paragraphs 14 and 19 above). A strong inference about an attempt to prevent an effective investigation can therefore be made. 56.     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 applicant’s 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 Court’s 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. 57.     The foregoing is sufficient, in the Court’s 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. 58.     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 (see paragraph   27 above). 59.   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 applicant’s son was subjected to ill-treatment in custody between 24   and 28 August 2011. 60.     As to the applicant’s 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 (see Gäfgen , cited above, § 90). There is, however, insufficient proof in that regard. 61.     It is nonetheless clear that the ill ‑ treatment of the applicant’s 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. 62.     Accordingly, there has been a violation of Article 3 of the Convention under its substantive limb on account of the ill ‑ treatment of the applicant’s son between 24 and 28 August 2011. Alleged responsibility of the respondent State UNDER ARTICLE 2 OF THE CONVENTION for T.Z.’s death Admissibility 63.     The Court observes that the parties’ submissions in this regard are identical to those concerning the admissibility of the complaint that T.Z. was subjected to ill-treatment contrary to Article 3. It considers that the same principles as those set out above apply and refers to its conclusion above that the Government’s objections concerning exhaustion of domestic remedies must be rejected (see paragraphs 38-44 above). It further considers that the complaint under Article 2 is not manifestly ill-founded or inadmissible on any other grounds – therefore admissible. Merits The parties’ submissions 64.     The applicant contested the official version of events concerning the death of his son. In that connection, he disputed the conclusions of forensic report no. 10 dated 5 September 2011 concerning the death of his son. He also submitted that his son had undergone a medical examination shortly before his death, and he had not had any health problems. The applicant further argued that even assuming that there had been vascular thrombosis of T.Z.’s lower limbs, such thrombosis could have resulted in death as a result of kicks or some other painful impact. 65.     The Government contested the applicant’s submissions. They submitted that the cause of the death of the applicant’s son had been pulmonary embolism as a result of vascular thrombosis of the lower limbs, as indicated in forensic report no. 10 dated 5 September 2011. They also submitted that T.Z. had not requested any medical care or assistance while in detention. His health situation had deteriorated suddenly and an ambulance had been called immediately. The Court’s assessment (a)    General principles 66.     The Court reiterates that Article 2, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention. Together with Article 3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The object and purpose of the Convention as an instrument for the protection of individual human beings requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see McCann and Others v.   the   United Kingdom , 27 September 1995, §§   146-47, Series A no. 324; Anguelova v. Bulgaria , no. 38361/97, § 109, ECHR 2002 ‑ IV; and Mustafayev v. Azerbaijan , no. 47095/09, § 52, 4 May 2017). 67.     The first sentence of Article 2 § 1 enjoins the States not only to refrain from the intentional and unlawful taking of life, but also lays down a positive obligation on the States to take appropriate steps to safeguard the lives of those within their jurisdiction (see L.C.B. v. the United Kingdom, 9   June 1998, § 36, Reports of Judgments and Decisions 1998-III; Öneryıldız v. Turkey [GC], no. 48939/99, § 71, ECHR 2004 ‑ XII; and Fernandes de Oliveira v. Portugal [GC], no. 78103/14, § 104, 31 January 2019). The Court has previously had occasion to emphasise that persons in custody are in a vulnerable position and that the authorities are under a duty to protect them. As a general rule, the mere fact that an individual dies in suspicious circumstances while in custody should raise an issue as to whether the State has complied with its obligation to protect that person’s right to life (see Slimani v. France , no. 57671/00, § 27, ECHR   2004-IX (extracts); Geppa v.   Russia , no. 8532/06, § 70, 3 February 2011; and Karsakova v. Russia , no.   1157/10, § 48, 27 November 2014). 68.     It is incumbent on the State to account for any injuries suffered in custody, an obligation which is particularly stringent when an individual dies (see, for example, Salman v.   Turkey [GC], no.   21986/93, § 99, ECHR   2000-VII; Shumkova v. Russia , no. 9296/06, § 89, 14 February 2012; and Çoşelav v. Turkey , no. 1413/07, § 53, 9 October 2012). 69.     As regards the standard of proof in these matters the Court refers, mutatis mutandis , to the case-law cited in paragraph 51 above in relation to Article 3. The Court also deems it necessary to reiterate that where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in detention, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see, among many other authorities, Salman , cited above, §§   97 ‑ 100, and Aktaş v. Turkey , 24351/94, §§   289-291, 24 April 2003). 70.     The Court further reiterates that, in all cases where it is unable to establish the exact circumstances of a case for reasons objectively attributable to the St