CASE OF AKELIENĖ v. LITHUANIA

FOURTH SECTION

CASE OF AKELIENĖ v. LITHUANIA

(Application no. 54917/13)

JUDGMENT

STRASBOURG

16 October 2018

FINAL

06/05/2019

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Akelienė v. Lithuania,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Ganna Yudkivska, President,
Paulo Pinto de Albuquerque,
Faris Vehabović,
Egidijus Kūris,
Carlo Ranzoni,
Marko Bošnjak,
Péter Paczolay, judges,
and Marialena Tsirli, Section Registrar,

Having deliberated in private on 10 July 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 54917/13) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Ms Aldona Akelienė (“the applicant”), on 20 August 2013.

2.  The applicant was granted leave to represent herself in the proceedings before the Court. The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė-Širmenė.

3.  The applicant alleged, in particular, that the respondent State had not discharged its obligations under Article 2 of the Convention, given that it had taken too long to obtain a custodial sentence in respect of A.G., who had been convicted of the murder of the applicant’s son. The applicant also complained that A.G. had been left unpunished because he had hidden from the authorities just before his conviction.

4.  On 24 June 2016 the application was communicated to the Government.

5.  By a letter of 12 June 2017 the applicant’s daughter Ms Vida Čertoliasienė asked the Court for permission to continue the case after her mother’s death. She pointed out that she (Ms V. Čertoliasienė) had been granted victim status in the criminal case regarding her brother’s death (see paragraph 21 below). The Government were informed of the request, but made no comment.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

6.  The applicant was born in 1935 and lived in Kalvarija. She died on 8 April 2017.

7.  In December 1993 a large sum of money disappeared from A.G.’s mother’s home in the town of Kalvarija. A.G. suspected the applicant’s son R.A., and R.A.’s friend, Z.V., of having stolen the money.

8.  As later established by the Court of Appeal (see paragraph 40 below), on 19 April 1994 A.G., acting with accomplices, forced R.A. and Z.V. into a car and drove them to a forest in Kalvarija. R.A. and Z.V. were tied to a tree, interrogated, beaten, put in a hole in the ground and, when they tried to escape, shot, stabbed and thus killed. Both victims were then buried in the forest in an attempt to hide the evidence. Their bodies were never found.

9.  On 8 July 1994 the applicant’s daughter reported to the police that her brother R.A. had disappeared.  Having examined the material indicating that on 19 April 1994 R.A. had been placed in a car and had not returned, on 29 August 1994 the police opened a criminal investigation into charges of unlawful deprivation of liberty.

10.  In autumn 1994 the authorities started connecting A.G. to the disappearance of the applicant’s son and Z.V. On 25 October 1994 A.G. was arrested and placed in pre-trial detention. However, as later established by court decisions, when in October 1994 two witnesses gave false testimony that they had seen the two missing persons – R.A. and Z.V. – alive in Klaipėda, on 4 November 1994 A.G. was released from pre‑trial detention.

11.  The criminal investigation into the charges of unlawful deprivation of liberty continued. The authorities questioned a number of witnesses, including A.G., who had also been questioned as a suspect earlier. In order to eliminate contradictions between the witnesses’ testimony, the authorities conducted several formal confrontations (akistata). As noted by the Government, several forensic expert examinations were performed with regard to the seized vehicle allegedly used in the kidnapping, but no traces of blood were found in that vehicle.

12.  On 29 November 1994 the pre-trial investigator took the decision to suspend the criminal proceedings, because R.A. and Z.V. could not be located and there were no objective grounds for establishing who was responsible for their disappearance. The police were instructed to continue searching for R.A. and Z.V., as well as for those who were responsible for their disappearance.

According to the Government, the applicant did not appeal against that decision.

13.  The Government also stated that afterwards R.A. had been considered a missing person (dingęs be žinios). In order to find him, the authorities had entered information into the relevant registers and databases. Various police records had been inspected. R.A. had been sought in medical establishments. Information with regard to unidentified corpses had been checked in order to look for similarities. The media had also been employed to ask the general public for assistance. The search had been closed on 26 May 2004 because of the expiry of the statutory limitation period. Before closing the search, R.A.’s relatives had been questioned once again, and the matter of whether R.A. had crossed the Lithuanian border had been verified.

14.  According to the Government, within the context of another criminal case instituted in April 2004 regarding an attempt to murder A.G., information was received that A.G. could have been involved in R.A.’s and Z.V.’s disappearance. According to the documents before the Court, in June 2004 the Prosecutor General office asked the Criminal Police Bureau to continue investigating the disappearance.

15.  On 24 January 2005 the Criminal Police Bureau found that A.G., acting together with G.S. and G.M., had killed R.A. and Z.V. (see paragraph 8 above). The Criminal Police Bureau thus opened a criminal investigation into the murder of two persons. It appears that the evidence against A.G. consisted of witness testimony, including the testimony of two witnesses who agreed to testify on the condition that they could do so anonymously, as well as the secret surveillance of another witness who had misled the investigators in 1994 (see paragraph 10 above).

16.  On 13 June 2005 the police wished to question A.G., but he could not be found either at his home or at his place of work. Two days later, on 15 June 2005 the authorities issued a decision to charge A.G. with the murder of two persons. The following day an operative search (operatyvinė paieška) in respect of A.G. was announced. By 24 June 2005 the authorities obtained information that A.G. was already abroad, possibly in Latvia, and planned to travel to either the United States of America or Kazakhstan. On 30 June 2005 a court authorised A.G.’s detention, in the event that he was found.

17.  On 18 July 2005 a prosecutor specified (patikslino) charges against A.G. and charged him with the aggravated murder of two persons (compare paragraph 11 above). Noting that the operative search which had been announced earlier had not brought about any results, the prosecutor announced a national and international search in respect of A.G. (vietinė ir tarptautinė paieška). On 16 August 2005 the Prosecutor General’s Office issued a European arrest warrant in respect of A.G.

18.  In December 2005 the Criminal Police Bureau obtained information that A.G. could be in Kazakhstan, and it noted that it intended to contact the Kazakhstan authorities in order to establish A.G.’s exact whereabouts and to seek his arrest and extradition to Lithuania.

19.  A.G was arrested on 17 March 2006, when he came to the Prosecutor General’s Office in Vilnius. He was questioned as a suspect in R.A.’s and Z.V.’s murder. He denied any involvement. By that time, the authorities had questioned a number of witnesses, performed searches, sent a legal aid request to Latvia, asked for information from the Lithuanian embassy in the United States of America, and also had agents travel to Ukraine, where one of A.G.’s accomplices had been apprehended. The documents before the Court also show that between June 2005 and March 2007 the Criminal Police Bureau investigator repeatedly questioned the suspects and organised formal confrontations between them, so that any inconsistent testimony would be clarified.

20.  In response to a request by the applicant of 12 June 2006, on 19 September 2006 a prosecutor granted her civil claimant (civilinis ieškovas) status in the case regarding her son’s murder.

21.  The applicant’s daughter had been granted the status of a victim (nukentėjusioji) on 12 June 2006. For her part, on 19 September 2006 the applicant was recognised as a victim in the criminal case regarding her son’s murder.

22.  In September 2006 the prosecutor also imposed a restriction on A.G.’s real property.

23.  From 17 March to 22 November 2006 A.G. was again detained pending trial, including by a ruling of the Vilnius Regional Court of 20 October 2006. The applicant appealed against that ruling.

24.  As later established by a court decision (see paragraph 40 below), whilst being detained, on 22 March 2006 A.G. had attempted to offer a bribe of 20,000 Lithuanian litai (LTL, approximately 5,800 euros (EUR)) to the Criminal Police Bureau investigator, in an attempt to persuade the latter not to actively pursue leads in the criminal murder case, so that the remand measure which had been imposed on him – pre-trial detention – could be replaced with a less stringent one.

25.  On 22 November 2006 the Court of Appeal ordered A.G.’s release from pre-trial detention. Whilst acknowledging that, at that stage, it was not pronouncing judgment on the question of A.G.’s guilt, the appellate court nevertheless noted that the evidence corroborating his guilt on the charges of murder was very scarce to support his detention pending trial. In particular, although the victims had allegedly been killed as early as 1994, their bodies had still not been found, and A.G. had been charged with their murder only in 2005. The Court of Appeal also pointed out that there was no evidence that A.G. could hide from the investigation, although these had been the grounds relied on by the prosecutor in support of A.G.’s detention. On the contrary, the case material showed that, when summoned in March 2006, A.G. had attended the Prosecutor General’s Office. His wife had also later taken his passport to the prosecutor, which, according to the Court of Appeal, showed that he had not been hiding that document. Moreover, between June 2005 and February 2006 – the period which the prosecutor referred to as the period when A.G. had been hiding from the authorities – in reality, A.G. had been working in Lithuania and receiving a salary. Similarly, although the prosecutor claimed that in the summer of 2005 A.G. had been recognised as a suspect and a national and international search in respect of him had been announced, in reality, the police had not been actively searching for A.G. This was because, during the relevant time, A.G. had taken part in an unrelated court hearing in Lithuania and had also crossed the Lithuanian State border a number of times. It was very plausible that A.G. had not even known that he was being sought by the authorities. For the Court of Appeal, there were also no grounds to hold that A.G. could hide from the authorities abroad, because he had not done so, in spite of his numerous trips to foreign countries.

26.  The Court of Appeal acknowledged that the case was particularly complex and the case file was voluminous, given that the case involved more than one suspect, numerous witnesses had been questioned, and many forensic examinations, including DNA, had had to be performed. Even so, the appellate court pointed to the inconsistency in relation to the arguments for A.G.’s detention. In particular, in October 2006 and in a co-accused’s case, the prosecutor had asserted that all necessary actions in the criminal investigation had already been performed, and that therefore it was unlikely that that co-accused would hide from the authorities and there were no grounds for his pre-trial detention. However, in A.G.’s case, in October 2006 the Vilnius Regional Court had extended A.G.’s detention, considering that many investigative actions had yet to be performed. For the Court of Appeal, this meant that, with regard to the collection of evidence, double standards had been applied to the two co-accused in the case, which raised doubts as to the objectivity of the criminal investigation. The Court of Appeal also considered that such actions could be seen as discrimination under the European Convention on Human Rights. Furthermore, as was apparent from the material presented by A.G.’s lawyer, a DNA examination had already been performed in the case. This fact had also been acknowledged by the prosecutor, who had also confirmed that all the main investigative actions had already been completed. The Court of Appeal thus considered that continuing A.G.’s detention would be unnecessary, and would risk breaching Article 5 of the Convention.

27.  The Court of Appeal lastly observed that A.G. had no prior convictions, and had a family, two minor daughters, a permanent place of residence, and a job. Accordingly, a less stringent remand measure could be imposed on him, and it was for the prosecutor to choose what that measure would be, given that the court could not choose another remand measure by itself.

28.  On 22 November 2006 the prosecutor thus varied the remand measure in respect of A.G. and imposed on him an obligation not to leave his place of residence. A.G. was also ordered to periodically register with the police (įpareigojimas periodiškai registruotis policijos įstaigoje) every other day, and he had his personal documents – identity card and passport – taken off him.

29.  On 1 February 2007 the prosecutor discontinued the criminal investigation into the murder charges in respect of A.G.’s co-accused. The prosecutor established that the co-accused had not wanted R.A. and Z.V. to die, and that it had been only A.G. who had exceeded their initial plan (vykdytojo ekscesas) to kidnap R.A. and Z.V. and had murdered them.

30.  In August 2007 A.G. asked that the criminal proceedings against him be discontinued on the grounds that pre-trial investigation had been going on too long. However, by a ruling of 28 August 2007 the Vilnius City Second District Court dismissed his complaint, noting that even after 22 November 2006 the investigators had continued to question suspects and witnesses, performing expert examinations on handwriting and documents, as well as other investigative actions. The court pointed out that the case file was voluminous, that the crime in question had been committed a long time ago, and that certain actions could not be performed because of A.G.’s illness in 2007.

31.  In January 2008 the applicant asked the Kaunas Regional Court to hear the criminal case without her being present. She submitted that her health was frail and that she could not face seeing her son’s murderer at the court hearing. She asked the court to rely on her earlier testimony given at the stage of the pre-trial investigation. The Government specified that the applicant had later taken part in one hearing before the trial court.

32.  The prosecutor drew up the bill of indictment on 11 October 2007 and transferred the case to the trial court. According to the chronology provided by the Government, afterwards the trial court held eighteen hearings, when witnesses were questioned and evidence was examined.

33.  By a judgment of 2 February 2009 the Kaunas Regional Court acquitted A.G. of R.A.’s and Z.V.’s murder and of the attempted bribery of a police investigator. The applicant and her daughter had participated in some of the hearings before the trial court.

The trial court ordered that the remand measures imposed on A.G. – the obligation not to leave his place of residence, the taking away his identity documents (passport and ID card), and the order to periodically register with the police – should be lifted and his identity documents returned. The trial court also rejected civil claims by the applicant and I.V. (the mother of the other person who had been killed).

Lastly, the trial court lifted the restrictions on A.G.’s real property (see paragraph 22 above).

34.  It transpires from the documents before the Court that A.G.’s identity documents were returned to him on 17 February 2009, after he requested this.

35.  Both the prosecutor and the applicant’s daughter appealed against the trial court’s judgment acquitting A.G.

36.  On 15 December 2010 the Court of Appeal upheld A.G.’s acquittal in relation to the charges of murder and attempted bribery of a police investigator, and left the civil claims by the applicant and I.V. unexamined.

37.  The prosecutor lodged an appeal on points of law, and by a ruling of 5 July 2011 the Supreme Court quashed the Court of Appeal decision of 15 December 2010 and remitted the case to the appellate court for fresh examination. The Supreme Court took note of the appellate court’s conclusion that the case was a complex one because it involved criminal charges for a serious crime that had been committed many years previously. It also found that, although the appellate court had examined the evidence by questioning not only some of those witnesses who had already been questioned before the first-instance court, but also some newly summoned witnesses, it had nevertheless failed to rule on some other evidence and had not questioned an anonymous witness, even though earlier the appellate court had considered that witness’s testimony pertinent to the case. Furthermore, the appellate court had not answered all the questions regarding the evaluation of evidence which had been raised in the appeal against the first-instance court’s judgment.

38.  Once the case was returned to the Court of Appeal, the latter completed the examination of the merits of the case during the hearing of 12 October 2012, announcing that the judgment be pronounced on 27 November 2012 (see paragraph 40 below).

39.  It transpires that no remand measure was imposed on A.G. during the examination of the case by the Supreme Court and by the Court of Appeal.

40.  On 27 November 2012 the Court of Appeal reversed the Kaunas Regional Court’s judgment of 2 February 2009, and on the basis of all the evidence found A.G. guilty of the aggravated murder of two persons – R.A. and Z.V. – under Article 105 § 2 (2 and 5) of the old Criminal Code (see paragraph 49 below). The Court of Appeal established that that crime had been committed against persons in a particularly vulnerable situation (bejėgiškos būklės), since both R.A. and Z.V. had been shot after they had been beaten and placed in a hole in the ground with their hands tied, which was an aggravating circumstance. The Court of Appeal also found A.G. guilty of the attempted bribery of a pre-trial investigation officer, under Article 227 § 2 of the new Criminal Code (see paragraphs 24 above and 50 below). A.G. was sentenced to fourteen years’ imprisonment, to be served in a correctional home (pataisos namuose). The time which he had already spent in pre-trial detention – from 25 October 1994 to 4 November 1994 and from 17 March 2006 to 22 November 2006 – was to count as time served in relation to that sentence. The Court of Appeal noted that A.G. had no prior convictions; he worked, was married and had four children. Moreover, the criminal proceedings had lasted rather a long time, which was a reason to impose a less severe punishment than the maximum sentence of life imprisonment.

41.  By the same judgment, the Court of Appeal also awarded the applicant and I.V. (the mother of the other murdered person), LTL 150,000 (approximately EUR 43,500) each, as compensation for non-pecuniary damage in respect of the loss of their sons.

42.  According to the Government, on 6 December 2012 the Kaunas Regional Court sent the judgment convicting A.G. to the Marijampolė police, so that it could be executed.

43.  As the documents before the Court show, on 11 December 2012 the police established that A.G. had absconded to avoid serving his sentence. The same day, the police announced a national and international search in respect of him. The Government provided the Court with a copy of an authorisation, confirmed by a notary, which A.G. had signed on 28 November 2012 in the Smolensk Region in the Russian Federation, empowering his wife to represent his interests before the Lithuanian institutions. The Government specified that in November 2013 A.G.’s wife had presented that authorisation to a court in Lithuania when she had asked to familiarise herself with the applicant’s criminal file.

44.  On 26 February 2013 the Lithuanian authorities issued a European arrest warrant in respect of A.G. The authorities noted, inter alia, that A.G. had been physically present when the Kaunas Regional Court had acquitted him on 2 February 2009, when the Court of Appeal had delivered a ruling on 15 December 2010, when the Supreme Court had issued a ruling on 5 July 2011, and when the Court of Appeal had heard his case afterwards. He had also been physically present on 12 October 2012, when the hearing on the merits had been completed and the appellate court had adjourned pronouncement of the judgment. It had been A.G.’s lawyer who had been physically present when the Court of Appeal had pronounced the judgment of 27 November 2012.

45.  On 6 December 2012 the Kaunas Regional Court issued a writ of execution, pursuant to which the applicant and I.V. were to get LTL 150,000 each from A.G. On 11 December 2012 the applicant took the writ of execution to the bailiff, who on the following day accepted the execution request and on that same day took a decision to seize A.G.’s property. It transpires from the documents before the Court that in the period April-July 2013 amounts totalling about EUR 400 were recovered to compensate for the execution costs of roughly the same value already paid by the applicant’s daughter. In July 2013 the bailiff decided to suspend the enforcement proceedings until A.G. was found. The applicant was informed about the decision to suspend the enforcement proceedings.

46.  The applicant’s daughter appealed against the Court of Appeal’s judgment convicting A.G. (see paragraphs 40 and 41 above), asking for A.G. to be ordered to serve his sentence not in a correctional home, which was an institution with a less stringent regime, but in a prison. She pointed out that A.G. had killed her brother in a particularly cruel way when he had been particularly vulnerable. A.G., for his part, in his appeal on points of law, asked to be acquitted and for the criminal proceedings to be discontinued.

47.  By a final ruling of 25 June 2013, the Supreme Court dismissed the appeals on points of law by the applicant’s daughter and by A.G. The Supreme Court considered that the punishment imposed on A.G. had been just. At the Supreme Court hearing, A.G.’s wife admitted that her husband was abroad, but refused to disclose his whereabouts.

According to the information provided by the Government in 2017, A.G. had been granted refugee status in the Russian Federation (see also paragraph 80 below).

II.  RELEVANT DOMESTIC LAW

48.  For the relevant domestic law regarding protection of right to life and principles of criminal investigation, see Česnulevičius v. Lithuania (no. 13462/06, §§ 47, 49 and 50, 10 January 2012).

49.  The old Criminal Code, as in force at the relevant time, read as follows:

Article 105. Murder with aggravating circumstances

“The murder:

...

2)  of two or more persons;

...

5)  committed in a particularly cruel manner;

...

is punishable by deprivation of liberty for eight to fifteen years or by capital punishment”.

Capital punishment was eventually changed to life imprisonment (see Matiošaitis and Others v. Lithuania, nos. 22662/13 and 7 others, §§ 61-63, 23 May 2017).

50.  The new Criminal Code, in force from 1 May 2003, provides that:

Article 227. Offering a bribe (Papirkimas)

“1.  A person who has, whether directly or indirectly, offered, promised to give, or given a bribe to a civil servant or an equivalent person for a desired lawful action or [lack of] action in relation to the exercise of his or her powers, or to an intermediary, seeking to achieve the same result

shall be punished by restriction of liberty, or by a fine, or by arrest, or by imprisonment for a term of up to two years.

2.  A person who has committed the actions provided for in paragraph 1 of this Article ... seeking an unlawful action by a civil servant ... or an equivalent person in relation to the exercise of his or her powers

shall be punished by imprisonment for a term of up to four years ...”

51.  The Code of Criminal Procedure, which entered into force on 1 May 2003, read that the aim of remand measures was to guarantee a suspect’s, an accused’s or a convicted person’s participation in criminal proceedings, to guarantee the unhindered pre-trial investigation and hearing of a case in court and the execution of a sentence, and also to prevent new crimes being committed (Article 119). Remand measures of varying strictness were available: pre-trial detention, house arrest, taking away identity documents, imposing on a person an obligation not to leave the country or his or her place of residence without the authorities’ prior permission, periodically registering with the police, bail, and other measures. Should a person on whom a less stringent remand measure had been imposed disrespect that measure, a stricter remand measure could always be imposed.

52.  The Code of Criminal Procedure reads that the imposed remand measure is annulled when it becomes unnecessary, or when it has been changed to a milder or stricter remand measure, when the circumstances of a case so required. The remand measure is annulled or changed by a prosecutor’s decision or by court ruling (Article 139 § 3).

In accordance with amendments to the Code of Criminal Procedure that came into force on 17 October 2013, remand measures are no longer applied after a judgment acquitting a person comes into force or when the execution of a sentence has begun (Article 139 § 3). As it transpires from the travaux préparatoires, by this amendment the Seimas consolidated into one provision various provisions regarding termination of remand measures that had already existed in different Articles of that Code.

53.  The Code of Criminal Procedure in force at the time of criminal proceedings against A.G. also read:

Article 367. Right to lodge an appeal on points of law

“1.  On the basis of the grounds listed in Article 369 of this Code, [the following people have] the right to lodge an appeal on points of law ... a prosecutor, a victim, ... a convicted person, an acquitted person, a person in respect of whom a case has been discontinued, ... a civil claimant (civilinis ieškovas) ...”

III.  RELEVANT INTERNATIONAL LAW

54.  The Agreement between the Republic of Lithuania and the Russian Federation on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases, in force as of 21 January 1995, insofar as relevant, reads as follows:

Article 62. Refusal to extradite a person

“Extradition is refused, if:

1) person whose extradition is sought is a citizen of the Contracting State to which extradition request has been submitted, or is a person who has received asylum in that State; ...”

THE LAW

I.  PRELIMINARY ISSUES

A.  Standing of the applicant’s daughter

55.  Following the applicant’s death on 8 April 2017, her daughter, Ms V. Čertoliasienė, informed the Court of her wish to pursue the application in her mother’s stead.

56.  Once the Court informed them about the applicant’s daughter’s wish to continue the proceedings, the Government made no further comments on the matter.

57.  In cases in which an applicant has died after lodging an application, the Court has on previous occasions taken into account statements made by the applicant’s heirs or close family members expressing their wish to pursue the proceedings before the Court. For the Court’s assessment of the person’s standing to maintain the application on behalf of a deceased, what is important is not whether the rights at issue are transferable to the heirs but whether the heirs could in principle claim a legitimate interest in requesting the Court to deal with the case on the basis of the applicant’s wish to exercise his or her individual and personal right to lodge an application with the Court. The Court has accepted that a next of kin or an heir may in principle pursue the application, provided that he or she has sufficient interest in the case. In this connection, the Court reiterates that human rights cases before it generally have a moral dimension and persons close to an applicant may thus have a legitimate interest in ensuring that justice is done, even after the applicant’s death (see Cirino and Renne v. Italy, nos. 2539/13 and 4705/13, § 62, 26 October 2017 and the case-law cited therein).

58.  In view of the above, and taking into account the circumstances of the present case, the Court accepts that the applicant’s daughter has a legitimate interest in pursuing the application. This is all the more so since the domestic authorities and the courts to which the applicant’s daughter applied did not contest her standing to act on her own and on her mother’s behalf; moreover, it was the daughter who took certain procedural actions within those criminal proceedings regarding the causes of her brother’s death, such as lodging an appeal on points of law and, upon the applicant’s instructions, asking the bailiff to start enforcing the court judgment awarding damages to her mother (see paragraphs 9, 35, 45 and 46 above).

59.  Accordingly, the Court holds that Ms V. Čertoliasienė has standing to continue the present proceedings.

B.  Temporal jurisdiction

60.  The Government noted at the outset that the Court’s jurisdiction ratione temporis to examine the State’s procedural obligations under Article 2 only extended from 20 June 1995 onwards, when the Convention had come into force in respect of Lithuania.

61.  The Court observes that prior to the critical date few procedural acts were carried out in the context of the investigation. It was after that date, and especially from 2004 onwards, that the investigation took shape and A.G. eventually was charged with and convicted for the applicant’s son’s murder. In other words, the majority of the criminal proceedings and the most important procedural measures were carried out after the critical date (see, mutatis mutandis, Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, §§ 205-11, ECHR 2014 (extracts)).

62.  Consequently, the Court finds that it has jurisdiction ratione temporis to examine the applicant’s complaints under the procedural aspect of Article 2 of the Convention in so far as those complaints relate to the criminal investigation conducted in the present case after the entry into force of the Convention in respect of Lithuania. However, for reasons of context, the Court will also take note of all relevant events prior to that date (see, in the context of Article 2, Mladenović v. Serbia, no. 1099/08, § 52, 22 May 2012; Mučibabić v. Serbia, no. 34661/07, § 101, 12 July 2016; and, in the context of Article 3, Milanović v. Serbia, no. 44614/07, § 78, 14 December 2010).

II.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

63.  Without referring to any provision of the Convention, the applicant complained that the criminal proceedings relating to her son’s murderer had been too lengthy and ineffective. She submitted that although A.G. had had a history of fleeing from justice, the authorities had acted recklessly prior to the pronouncement of the Court of Appeal’s judgment of 27 November 2012, because no remand measures to prevent him from escaping justice had been ordered.

64.  The Court has decided that the applicant’s complaint falls to be examined under Article 2 of the Convention, the relevant part of which reads:

“1.  Everyone’s right to life shall be protected by law...”

A.  Admissibility

1.  The parties’ submissions

65.  The Government argued that the applicant had failed to exhaust the domestic remedies with regard to her complaint under Article 2 of the Convention. Firstly, she had not started separate civil proceedings against the State, which she should have done if she considered that its authorities, including the police, a prosecutor or the courts had not acted with due care when examining the circumstances of her son’s death, or had not ensured the proper and timely execution of the judgment convicting A.G. In support of their argument, the Government relied on certain provisions of the Civil Code, as well as on the Supreme Court’s case-law to the effect that the State’s civil liability might arise because of a failure on the part of one of its officers to act diligently.

66.  Alternatively, the Government considered that the complaint was manifestly ill-founded.

67.  The applicant made no comments on the issue of admissibility.

2.  The Court’s assessment

68.  The Court reiterates that where more than one potentially effective remedy is available, an applicant is only required to have used one remedy of his or her choice (see, among many other authorities, Göthlin v. Sweden, no. 8307/11, § 45, 16 October 2014, with further references, and Tavares de Almeida Fernandes and Almeida Fernandes v. Portugal, no. 31566/13, § 37, 17 January 2017). In the present case, the applicant fully exhausted the criminal-law avenue against the individual whom she considered responsible for her son’s murder: the applicant’s daughter asked the prosecutor to open a pre-trial investigation, both the applicant and her daughter were granted victim status, both participated in the pre-trial investigation and the criminal court proceedings by giving statements and lodging appeals, and the applicant had also submitted a civil claim in those criminal proceedings (see paragraphs 9, 20, 21, 31, 45 and 46 above). Accordingly, in the circumstances of this case, the Court does not share the Government’s view that the applicant ought to have used a separate remedy of civil proceedings against the State.

69.  The Court also considers that a civil claim against the State in respect of the alleged failure to conduct an effective investigation into the murder of the applicant’s son or to effectively prosecute the alleged perpetrator of that crime could not have provided her with any redress in terms of ensuring the effectiveness of that investigation and prosecution (see Mircea Pop v. Romania, no. 43885/13, § 61, 19 July 2016; see also Tanrıkulu v. Turkey [GC], no. 23763/94, §§ 79 in fine and 80, ECHR 1999‑IV; and Kosteckas v. Lithuania, no. 960/13, § 33, 13 June 2017).

70.  The Court lastly finds that the application 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.

B.  Merits

1.  The parties’ submissions

(a)  The applicant

71.  The applicant argued that the State had not properly discharged its obligation to conduct effective criminal proceedings into the circumstances of her son’s disappearance and murder. She submitted that the criminal investigation had been partially flawed from the outset, which, in her view, had affected the later course of the criminal case and delayed A.G. being brought to justice. She also pointed out that the Supreme Court had had to return the criminal case to the appellate court because mistakes had been committed by the trial and appellate courts when they had assessed the evidence. The applicant stated that such long criminal proceedings had caused her additional suffering and had harmed her health.

72.  The applicant was also particularly critical of the fact that although A.G. had been convicted, he had not been effectively held accountable. In this connection, the applicant drew the Court’s attention to the fact that already in 2005 and 2006 A.G. had been sought abroad. Notwithstanding this fact, and whilst being aware of A.G.’s prior record of hiding from the authorities, neither the prosecutors nor the courts had taken steps to impose remand measures on him throughout the criminal proceedings or until the pronouncement of the Court of Appeal’s judgment on 27 November 2012, in order to prevent him from fleeing again. In this connection, the applicant emphasised that A.G. had been on trial for murder – a crime which could attract a maximum sentence of life imprisonment. However, the domestic authorities had ignored that fact, and no remand measures – even those less stringent than detention, such as taking away A.G.’s identity papers, ordering him to register with the police, or imposing on him an obligation to stay at his place of residence – had been ordered.

(b)  The Government

73.  The Government submitted that the applicant had not raised any issues relating to the investigating or judicial authorities’ independence, or her inability to effectively take part in the criminal proceedings against A.G. With regard to the latter aspect, the Government pointed out that the applicant had been granted victim status within those proceedings. Although she had not sought to actively participate in them, her daughter Ms V. Čertoliasienė, who also had been granted victim status, had been very involved in the criminal case: she had been questioned numerous times within the pre-trial investigation, had taken part in the court hearings in person or through an advocate, had had access to the case file material, and had been provided with an opportunity to request additional actions. The Government thus considered that R.A.’s next of kin had been involved in the proceedings to a necessary extent.

74.  The Government then addressed two main aspects underpinning the applicant’s complaint – the efficiency of the criminal investigation, and the proper execution of the judgment convicting A.G.

75.  Firstly, regarding the initial stage of criminal investigation, the Government submitted that the authorities had taken necessary actions in a timely manner to establish the circumstances of R.A.’s and Z.V.’s disappearance. However, because of objective reasons, including two witnesses’ false testimony about R.A. and Z.V. being alive after an alleged confrontation with A.G. on the day of their disappearance, the pre-trial investigation had been suspended (see paragraphs 10 and 12 above). That notwithstanding, the search for the applicant’s son had continued (see paragraph 13 above).

76.  Once the criminal investigation had been reopened in June 2004, the authorities had again given it due attention, acknowledging the particular complexity of the case, and not owing to a necessity to correct mistakes or even unlawful acts of the competent authorities. Although the course of the investigation had also been complicated to an extent because R.A.’s and Z.V.’s bodies had never been found, the authorities had been able to find a witness who, at the beginning of 2005, had agreed to testify, after being granted anonymity. Even so, despite certain witnesses agreeing to testify against A.G., there had been certain contradictions in their testimony, and the investigators had therefore needed more time to eliminate those contradictions. After the reopening of the investigation, necessary forensic expert examinations had been performed, material submitted by the victims’ relatives had been examined, more than sixty witnesses had been questioned, several formal confrontations had been organised to eliminate contradictions, and the authorities had even employed secret investigative measures in order to obtain information to confirm the suspicions against A.G. Subsequently, A.G. had once again become a suspect and had been questioned as such. Although he had gone into hiding in June 2005, the authorities could not be blamed for having been reckless, for they had announced a search in respect of A.G. and had put all efforts into locating him.

77.  As to the way in which the proceedings before the courts had been conducted, the Government submitted that they had been mostly predetermined by the complexity of the case – the case file consisted of twenty-four volumes. The Government also wished to emphasise that most of the investigative actions had been taken after the lapse of time, and, in the absence of direct evidence, the testimony of certain witnesses had become crucial. Ultimately, the domestic authorities had nevertheless managed to bring the perpetrator to justice and convict him, and had also provided a plausible explanation of what had happened to the applicant’s son in such a particularly complex case.

78.  Turning to the authorities’ alleged failure to prevent A.G. from absconding after the judgment acquitting him had been issued by the Court of Appeal in 2012, the Government firstly stressed that releasing him from pre-trial detention in 2006 could not be seen as being relevant to his absconding. They stood firmly behind the Court of Appeal’s reasoning of 22 November 2006, which noted that, in the circumstances of the case, continuing to hold A.G. in detention could risk a breach of Article 5 of the Convention (see paragraphs 25 and 26 above). The Government also noted that other remand measures had initially been imposed on A.G. following his release from detention – a written obligation that he not leaves his place of residence, and taking away his identity documents. However, in the Government’s understanding, following A.G.’s acquittal by the Court of Appeal in 2010 he had been considered a free man, and remand measures could not have been imposed on him (see paragraph 36 above). Moreover, after his release from pre‑trial detention, A.G. had participated in all the court hearings, with the exception of those which he could not attend because of the state of his health.

79.  The Government lastly submitted that the judgment of 27 November 2012 convicting A.G. had been transferred for execution in a timely manner. However, as had later been established, by 28 November 2012 A.G. had already travelled outside Lithuania, where, according to his wife and his lawyer, he had been allegedly undergoing medical treatment (see paragraphs 43 and 47 above).

80.  In their observations of 13 December 2016 the Government noted that, taking into account the information received from Interpol about A.G.’s possible whereabouts, an international legal assistance request had been presented under the established procedure in order to ensure A.G.’s extradition to Lithuania, should he be apprehended in a particular State. In their observations of 31 May 2017 the Government wished to update the Court that, according to the most recent developments, Interpol had established A.G.’s whereabouts – he had been granted refugee status in the Russian Federation. On that basis, certain actions had been taken under the rules on international legal assistance. The Government pointed out that, owing to the “classified nature” of the search and the fact that it was ongoing, they could not provide more detailed information in this regard, but they promised to inform the Court of any other further developments. The Court has received no further information on this issue.

81.  In sum, the Government submitted that the State had fulfilled its positive procedural obligation to carry out a proper effective investigation into the circumstances of the applicant’s son’s death.

2.  The Court’s assessment

(a)  General principles

82.  The Court reiterates that Article 2 imposes a duty on the State to secure the right to life by putting in place effective criminal‑law provisions designed to provide effective deterrence against threats to the right to life, backed up by law‑enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. Compliance with the State’s obligations under Article 2 requires the domestic legal system to demonstrate its capacity to enforce criminal law against those who have unlawfully taken the life of another (see Kitanovska Stanojkovic and Others v. the former Yugoslav Republic of Macedonia, no. 2319/14, § 26, 13 October 2016, and the case-law referred to therein).

83.  An investigation must be effective in the sense that it is capable of leading to the establishment of the facts and, where appropriate, the identification and punishment of those responsible (see, more recently, Ranđelović and Others v. Montenegro, no. 66641/10, § 123, 19 September 2017, and Ceesay v. Austria, no. 72126/14, § 88, 16 November 2017). This is not an obligation of result, but of means. The authorities must take the reasonable steps available to them to secure the evidence concerning the incident. Any deficiency in the investigation which undermines its ability to establish the cause of death, or identify the person or people responsible, will risk falling foul of this standard. Whatever mode is employed, the authorities must act of their own motion once the matter has come to their attention (see Česnulevičius v. Lithuania, no. 13462/06, § 93, 10 January 2012). They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures. Moreover, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice. In all cases, the next of kin of the victim must be involved in the procedure to such an extent as is necessary to safeguard his or her legitimate interests (see Mustafayev v. Azerbaijan, no. 47095/09, § 72, 4 May 2017, with further references).

84.  A requirement of promptness and reasonable expedition is implicit in this context (see Sıdıka İmren v. Turkey, no. 47384/11, § 59, 13 September 2016). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating suspicious deaths may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see Merkulova v. Ukraine, no. 21454/04, § 50, 3 March 2011, and Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 237, ECHR 2016), and to secure the effective implementation of the domestic laws which protect the right to life (see Kitanovska Stanojkovic and Others, § 27, and Mustafayev, § 73, both cited above).

85.  Lastly, the requirement of effectiveness of a criminal investigation under Article 2 of the Convention can be also interpreted as imposing a duty on States to execute their final judgments without undue delay. It is so since the enforcement of a sentence imposed in the context of the right to life must be regarded as an integral part of the procedural obligation of the State under this Article (see Kitanovska Stanojkovic and Others, cited above, § 32, and, most recently, Minneker and Engrand v. Belgium (dec.), no. 45870/12, § 26, 7 February 2017).

(b)  Application of the above principles to the instant case

86.  Turning to the circumstances of the present case, the Court notes that the domestic proceedings which sought to examine the disappearance of the applicant’s son R.A. commenced in August 1994, after the applicant’s daughter had reported her brother’s disappearance – a disappearance that had taken place two months earlier – to the authorities (see paragraphs 8 and 9 above). Although the applicant criticised the authorities’ decision to later suspend those proceedings, the Court is not ready to share such a view, because the reasons to suspend the criminal investigation into R.A.’s disappearance were plausible (see paragraph 12 above). The Court is also ready to accept that there were obstacles and difficulties which prevented progress in the investigation, including witnesses falsely testifying that they had seen R.A. and Z.V. alive (see paragraph 10 above), all the more so since nothing in the case-file suggests that the authorities’ had a reason not to trust those witnesses’ statements. Furthermore, as submitted by the Government and not contested by the applicant, the search for R.A. continued afterwards, and numerous measures were employed to locate him (see paragraph 13 above). Whilst it is true that the criminal proceedings regarding R.A.’s disappearance were pending for a number of years, there is nothing in the facts of the case which would lead the Court to conclude that the authorities did not put appropriate efforts into investigating what happened to him.

87.  The Court further observes that once, in 2004, the authorities obtained information about A.G.’s possible involvement in R.A.’s and Z.V.’s disappearance and murder, they pursued this lead effectively, indicting A.G. on charges of murder (see paragraphs 17 and 19 above). The case was clearly a complex one, necessitating a number of investigative measures (see paragraphs 19, 26 and 30 above). Even so, the criminal proceedings against A.G. led to him being convicted and given a custodial sentence (see paragraphs 40 and 47 above). The Court considers that the imperative of establishing the circumstances of the case and the person responsible was satisfied in this case. Accordingly, so far the Court is of the view that the authorities of the respondent State fulfilled the procedural obligations arising under Article 2 with respect to the criminal proceedings (see Kitanovska Stanojkovic and Others, cited above, § 28, and Zoltai v. Hungary and Ireland (dec.), no. 61946/12, § 30, 29 September 2015).

88.  That being so, the main thrust of the applicant’s complaint concerns the failure to enforce the custodial sentence in respect of A.G., for which she held the respondent State entirely responsible. In particular, the applicant was particularly critical of the authorities’ choice not to impose any remand measures on A.G. until his conviction by the Court of Appeal in November 2012.

89.  The Court firstly turns to the Government’s argument that, under Lithuanian law, no remand measures could be imposed on A.G. after his acquittal by the Court of Appeal on 15 December 2010, because after that decision A.G. had been considered a free man (see paragraphs 36 and 78 above). Be that as it may, the Court observes that the above-mentioned decision of the Court of Appeal was quashed by the Supreme Court on 5 July 2011 (see paragraph 37 above). The Court therefore considers that the explicit statutory prohibition under Article 139 § 3 of the Code of Criminal Procedure on applying remand measures in respect of a person acquitted by a court judgment that had entered into force no longer applied to A.G.’s situation (see paragraph 52 above). The Court thus rejects the Government’s argument that, because of the law, no remand measures could be applied to A.G. until his conviction by the Court of Appeal on 27 November 2012.

90.  That being so, the Court observes that after A.G.’s acquittal by the trial court on 2 February 2009, when other – milder – remand measures were lifted (see paragraph 33 above), no action was taken by the authorities with a view to guaranteeing A.G.’s participation in the criminal proceedings. However, as pointed out by the Government, A.G. subsequently took part in the examination of his case by the Court of Appeal and the Supreme Court, prior to the Court of Appeal pronouncing the verdict of conviction (see paragraphs 44 and 78 in fine above). On the facts of the case, the Court therefore is not ready to hold that until 27 November 2012 the authorities did not display the requisite diligence in guaranteeing A.G.’s participation in the criminal proceedings.

91.  The Court next turns to the Lithuanian authorities’ actions after A.G.’s conviction on 27 November 2012. The Court observes that they had sent the judgment for execution only on 6 December 2012 (see paragraph 42 above). Although such delay may be problematic in itself, in this case the Court is not ready to find a violation of Article 2 of the Convention on this fact alone, given that in the circumstances of the present case it is not clear whether A.G. had already left Lithuania before his conviction, thus rendering ineffective any prompt action aimed at the execution of his sentence (see paragraph 43 above). The Court further takes note that on 11 December 2012, after learning that A.G. had fled justice, the authorities announced his national and international search, and on 26 February 2013 they issued a European Arrest Warrant.

92.  The Court also observes that only a year later, in November 2013, the authorities learned from A.G.’s spouse that he had fled to the Russian Federation, and that by 28 November 2012 he had no longer been on the Lithuanian territory (see paragraphs 43 and 44 above). According to the Government, who have not been disputed on these points by the applicant, measures had been taken to establish A.G.’s whereabouts. After having received information from Interpol about his possible whereabouts, an international legal assistance request was presented with the aim to ensure his extradition should he be apprehended. However, the Government could not provide more detailed information in this regard due to the classified nature of the information (see paragraph 80 above). In any event, the measures taken seem to have been to no avail. Moreover, according to the information received from the Government in 2017, A.G. had been granted refugee status in the Russian Federation (see paragraphs 47 and 80 above). Pursuant to the Agreement between the Republic of Lithuania and the Russian Federation on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases, a person who has received asylum in one of these countries may not be extradited to the other (see paragraph 54 above).

93.  Under these circumstances, taking into account the information available, the Court does not consider that the measures taken by the State with the aim of finding A.G. after his conviction and having him extradited to Lithuania were insufficient as regards its responsibility to enforce criminal law against those who have unlawfully taken the life of another (see, mutatis mutandis, Ghimp and Others v. the Republic of Moldova, no. 32520/09, § 43, 30 October 2012, and Banel v. Lithuania, no. 14326/11, § 70, 18 June 2013).

94.  The foregoing considerations are sufficient to enable the Court to conclude that there has been no violation of Article 2 of the Convention.

FOR THESE REASONS, THE COURT

1.  Declares, unanimously, that Ms V. Čertoliasienė has standing to continue the present proceedings in her late mother’s stead;

2.  Declares, unanimously, the application admissible;

3.  Holds, by six votes to one, there has been no violation of Article 2 of the Convention in respect of the domestic authorities’ failure to enforce a custodial sentence in respect of A.G.

Done in English, and notified in writing on 16 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena TsirliGanna Yudkivska
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a)  concurring opinion of judge Bošnjak, joined by Judge Vehabović;

(b)  dissenting opinion of Judge Pinto de Albuquerque.

G.Y.
M.T.

CONCURRING OPINION OF JUDGE BOŠNJAK,
JOINED BY JUDGE VEHABOVIĆ

1.  In the present case I voted with the majority in finding that there had been no violation of Article 2 of the Convention in respect of the domestic authorities’ failure to enforce a custodial sentence against A.G. It is apparent that on or around the date of his conviction by the Court of Appeal, A.G. left the territory of the respondent State and has not returned since, thus making it impossible for its authorities to arrest him with a view to sentence enforcement. Although A.G. has been staying on territory outside the effective control of the respondent State, I believe that its obligations under Article 2 of the Convention do not stop at its borders. That is to say, it is my opinion that in a cross-border context as in the present case, the procedural obligation under Article 2 of the Convention also includes an obligation to seek cooperation from the State to which the convicted person in question has fled. While the exact scope of this obligation is yet to be defined in the Court’s case-law, its basic traits are clear. For example, in Agache and Others v. Romania (no. 2712/02, 20 October 2009), the Court, in order to find a procedural violation of Article 2, took into account inter alia the fact that the authorities of the respondent State had not taken the necessary steps to secure the extradition of three of the convicted persons for an attack leading to the victim’s death.

2.  Turning to the circumstances of the present case, there are solid grounds to assume that A.G. fled to the territory of the Russian Federation. On 28 November 2012 he signed a letter of authorisation in the Smolensk Region of the Russian Federation empowering his wife to represent his interests before Lithuanian institutions. This letter was presented to a Lithuanian court in November 2013. At least from that date on, the Lithuanian authorities were aware of his likely whereabouts. In 2017 A.G. was granted refugee status in the Russian Federation. One could reasonably have expected that, in the meantime, the Lithuanian authorities would seek extradition from their Russian counterparts. Both States are parties to the Council of Europe’s European Convention on Extradition (and possibly to other bilateral or multilateral instruments in this respect) and if presented with a proper extradition request, the Russian Federation could only refuse to extradite A.G. if any of the exceptions applied to the particular situation.

3.  The respondent Government provided very limited information in respect of any steps taken in order to ensure A.G.’s transfer to the territory under its control. Apparently, the Lithuanian authorities announced a national and international search for A.G., issued a European arrest warrant (which applies only among member States of the European Union and therefore not to the Russian Federation), and sent an international legal assistance request, but the Government did not specify its content, the State to which it was addressed or its outcome. No further information was provided. Instead, the Government referred to the classified nature of information. I consider this to be insufficient for the purpose of verifying whether the respondent State has taken all steps reasonably possible in order to secure the transfer of A.G. to Lithuania. In my opinion, the examination of this case before the Court would have benefited from additional communication to the parties, offering the respondent Government an opportunity to further explain the steps they have actually taken in this respect and the applicant the possibility of commenting on that issue, should she wish to do so. Since the majority decided not to engage in this procedural act, I have taken into account the fact that at the initial communication stage the Government’s attention was not specifically drawn to issues of international legal assistance. Furthermore, the applicant’s complaint did not point to any failure in this respect. Therefore, not without hesitation, I decided to join the majority in their position regarding the merits of this case.

DISSENTING OPINION OF JUDGE PINTO DE ALBUQUERQUE

1.  The present case provided the Court with an opportunity to reinforce the rights of victims of criminal offences and their relatives with regard to the application of remand measures to the offender and the subsequent enforcement of a custodial sentence. The majority missed this opportunity. That is the main reason why I dissent. In addition, there is another, more general, methodological reason that leads me to depart from my learned colleagues’ reasoning. This judgment is built on a logical fallacy. I have been trying to draw the attention of the Court to the need to avoid this and other types of logical fallacies without much success thus far. I am making the point again now in the hope that my arguments may humbly contribute to a change in the Court’s drafting practice.

2.  In spite of my disagreement with the majority’s finding, I would like to underscore that this case still adds something important to the case-law in so far as it acknowledges that victims of criminal offences or their relatives acting as civil claimants in the criminal proceedings (see paragraph 20 of the judgment) have a Convention right to the enforcement of a custodial sentence with regard to the offender upon pronouncement of conviction. This right was based in the present case on the positive obligations derived from Article 2 of the Convention, but there is nothing to prevent its extension on the basis of other Articles of the Convention.

The need for remand measures

3.  In view of the facts of the case, I am of the opinion that the domestic authorities failed to enforce a custodial sentence in respect of A.G., which was their obligation under domestic and Convention law. My reasons are as follows.

4.  A.G. was accused of serious offences punishable with heavy penalties. In spite of that, after the quashing of A.G.’s acquittal on 5 July 2011 no action was taken by the authorities with a view to guaranteeing A.G.’s future participation in the criminal proceedings, including his participation after delivery of the new judgment (see paragraph 39 of the judgment). The domestic authorities did not even consider the possibility of imposing remand measures, which were applicable and indeed had already been applied to A.G. in the case, such as the obligation not to leave his place of residence, taking away his identity documents (passport and ID card), and an order to periodically register with the police.

5.  The fact that after 5 July 2011 and until 12 October 2012 A.G. took part in the examination of his case by the Court of Appeal and the Supreme Court (see paragraph 44 of the judgment) does not suffice to justify the lack of any remand measures. Remand measures were warranted in view of the risk of flight before and after delivery of the judgment by the Court of Appeal. It was obvious that that risk was high, in view of A.G.’s numerous trips to foreign countries, a fact which was known to the domestic authorities (see paragraph 25 of the judgment). Furthermore, the national authorities also knew that A.G had vanished between 13 June 2005 and 17 March 2006 (see paragraphs 16 and 19 of the judgment) and an initial European arrest warrant was issued in his regard (see paragraph 17 of the judgment).

6.  The fact that A.G. signed, on 28 November 2012, in the Smolensk Region in the Russian Federation, a document before a notary, which was unknown to the Lithuanian authorities until November 2013 (see paragraph 43 above) serves as no excuse for the lack of action on the part of those authorities. The necessity of remand measures is determined according to the evidence known to the domestic authorities at the time when the decision quashing the acquittal is taken (5 July 2011) and not with the benefit of hindsight, on the basis of evidence disclosed to them more than two years later. The same applies to the Court. The point in time for the Court’s assessment of the need for remand measures is 5 July 2011, not November 2013.

7.  Although the domestic authorities learned that A.G. had fled justice on 11 December 2012, they issued a second European arrest warrant only on 26 February 2013 (see paragraph 44 of the judgment). No justification was given for this delay either, which patently shows the careless attitude of the domestic authorities vis-à-vis this case.

Argumentum ad ignorantiam

8.  In addition, there was a delay between A.G.’s conviction on 27 November 2012 and the sending of the judgment for execution on 6 December 2012. Regardless of whether A.G. had left the country or not on 27 November 2012, the fact is that the delay by the domestic authorities is totally unjustified. Moreover, the Government did not even try to provide justification for such a delay.

9.  The majority find this delay “problematic”, but excuse the domestic authorities because “it is not clear whether A.G. had already left Lithuania before his conviction” (see paragraph 91 of the judgment). This is a fallacious reasoning based on an argument from ignorance (argumentum ad ignorantiam), also known as a fallacy of ignorance. This logical fallacy, common in legal reasoning, draws an argument from the lack of information or contrary evidence, and therefore contradicts a basic tenet of legal reasoning according to which one should not draw conclusions from incomplete or insufficient sources of information.

10.  I have noticed this fallacy in other cases. Its use extends to uncertainty regarding past facts (see my separate opinions in Chiragov and Others v. Armenia [GC], no. 13216/05, § 19, ECHR 2015, and Sõro v. Estonia, no. 22588/08, § 19) and future facts (see Ramadan v. Malta, no. 76136/12, § 22, 21 June 2016; Biao v. Denmark [GC], no. 38590/10, § 17, 24 May 2016; and S.J. v. Belgium (Striking out) [GC], no. 70055/10, § 9, 19 March 2015, referring to the argumentation in N. v. the United Kingdom [GC], no. 26565/05, ECHR 2008). It is telling that in the majority of cases I have identified the fallacy has benefited the Government. In N. v. the United Kingdom an argument in favour of the Government was drawn from the uncertainty about the features of the health care available in the receiving State in the future. In Biao an argument in favour of the Government was drawn from the uncertainty that the applicants could have met the generally applicable attachment requirement in a “few years”. In Ramadan an argument in favour of the Government was drawn from the lack of certainty about a future expulsion. In Sõro the national courts drew an argument against the applicant from the lack of certainty regarding his exact role as a KGB driver. Only in Chiragov was an argument drawn in favour of the applicant, from the lack of information about the military presence of forces supported by the respondent Government on a certain territory. Regardless of which party benefits from them, it is high time to put an end to such tortuous arguments in the Court’s drafting practice.

Treatment of classified documents

11.  The argumentum ad ignorantiam fallacy resonates in another part of the majority’s judgment. The Government alleged that an international legal assistance request had been presented in order to ensure A.G.’s extradition should he be apprehended and that “certain actions had been taken under the rules on international legal assistance”. However, the Government could not provide more detailed information in this regard due to the “classified” nature of the information. They promised to inform the Court of any other further developments. The Court has received no further information on this issue (see paragraph 80 of the judgment). The majority accept this excuse. I do not.

12.  Here again an argument is drawn in favour of the Government in spite of the lack of information provided by them. If the Government have not provided any evidence of the concrete “actions” taken to obtain international legal assistance, the Court should limit itself to concluding that no “actions” were taken. Quod non est in actis non est in mundo!

13.  It is no justification for the Government’s omission that the information is allegedly classified. It is true that Rule 33 of the Rules of Court provides for the possibility of restricting public access to certain documents in the interests of public order or national security. However, the Rules of Court do not contain any rule on the restriction of disclosure of evidence to one party. The General Instruction for the Registry on the treatment of internal secret documents, approved by the President of the Court in March 2002, does not apply to the evidence provided by the parties either. Finally, the Practice Direction on Written Pleadings, issued by the President of the Court in November 2003 and amended in 2008 and 2014 (“Secret documents should be filed by registered post”), is manifestly insufficient.

14.  As I have already argued in Chiragov and Others (cited above, paragraph 21 of my opinion annexed to that case), since the Rules of Court contain no specific regime of non-disclosure of evidence to the parties, the respondent State is clearly absolved from the obligation to provide the Court with highly confidential evidence that might be sensitive for national and military security, and it cannot be criticised for failing to do so. But the Government cannot benefit from their own omission either. In other words, the Court cannot draw positive inferences in favour of the Government where they have not presented evidence of their allegations, with the excuse that that evidence is “classified”.

15.  I would add that, as a matter of principle, a human rights court should not decide a case relying, in whole or in part, on or otherwise taking into consideration evidence that has not been disclosed to the applicant and their representatives. In the Grand Chamber’s own words, “the concept of ‘State secrets’ has often been invoked to obstruct the search for the truth” (see El-Masri v. the former Yugoslav Republic of Macedonia, no. 39630/09, § 191, ECHR 2012). The generalisation of secret, undisclosed evidence in a human rights court is not only counterproductive, it is contra naturam. It is counterproductive because undisclosed evidence is fundamentally undermined in terms of its probative value, and it is contra naturam, because it defeats the very foundations of the right of access to effective justice, renders the principle of equality of arms meaningless and conflicts with the right to the truth. Worst of all, undisclosed evidence endangers the appearance of a fair and impartial administration of justice by the Court. In sum, undisclosed evidence is an existential threat to open and effective justice, as pointed out in the PACE Resolution 1838 (2011) on Abuse of state secrecy and national security: obstacles to parliamentary and judicial scrutiny of human rights violations.

16.  On an exceptional basis, the Court may however take into consideration undisclosed evidence if and when it is satisfied that the evidence in question is relevant, that one or more clearly circumscribed grounds for secrecy (namely, compelling national security interests and serious risk to the life or physical integrity of a person) obtain in the case and that such secrecy is strictly necessary to protect those interests and proportionate to the limitation of the competing adversarial principle. Where the Court does consider undisclosed evidence, within the strict confines mentioned above, this evidence should not be determinative of the case without other corroborating evidence. Otherwise, the Court cannot rely on – or in any way take into consideration – evidence which has been presented by the Government but not disclosed to the applicant.

17.  In the case at hand none of this happened. I note that the Court did not even assess the grounds for secrecy, let alone whether such evidence was relevant and keeping it secret was necessary and proportionate to protect the alleged interests.

18.  In general, the degree of understanding that the majority demonstrate towards the domestic authorities’ conduct in the present case reflects the present rule of thumb in the Court. This time the ultimate beneficiary was a fugitive and convicted murderer, guilty of the aggravated murder of two persons who were shot after they had been beaten up and placed in a hole in the ground with their hands tied.

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