Inability to capture and execute the murderer’s sentence that escaped abroad. Is the state responsible?

JUDGMENT

Akelienė v. Lithuania 16.10.2018 (no.  54917/13)

see here  

SUMMARY

The accused was convicted of intentional murder before the Appeals Court and in 14 years’ imprisonment and could not be arrested and the decision executed because he escaped abroad. The authorities took appropriate action to identify it and issued a domestic and European arrest warrant. No infringement of the procedural aspect of Article 2 of the ECHR.

PROVISION

Article 2

PRINCIPAL FACTS 

The applicant, Aldona Akelienė, is a Lithuanian national who was born in 1935 and lived in Kalvarija (Lithuania). She died on 8 April 2017.

The case concerned the applicant’s complaint about the investigation into the murder of her son and the authorities’ failure to enforce a prison sentence against the killer.

The applicant’s son, R.A., was reported missing in July 1994. The police opened a criminal investigation in August of the same year and eventually questioned a man called A.G. in connection with R.A.’s alleged murder. After false testimony that R.A. and another missing man had been seen alive, the police suspended the case in November 1994.

Almost 10 years later, the police received information that A.G. could have been involved in the disappearance of R.A. and the other man. They opened a criminal investigation in January 2005 and in June decided to charge A.G. with the murder of the two men. A.G., who had disappeared and was believed to be abroad, was eventually arrested in March 2006 in Vilnius. He was detained pending trial, but was released in November 2006 under an order not to leave his place of residence.

A.G. was at first acquitted, in February 2009, but in November 2012 the appeal court found him guilty of the murder of R.A. and another man and sentenced him to 14 years’ imprisonment.
However, by the time the police came to take A.G. into custody to serve his sentence he had absconded. The Government later established that he had been given refugee asylum in Russia.

Relying in substance on Article 2 (right to life) of the European Convention on Human Rights, the applicant complained in particular that the Lithuanian authorities had recklessly failed to apply a remand measure before sentencing her son’s killer, which had allowed him to escape justice.

THE DECISION OF THE COURT

Article 2: Although the criminal proceedings had been pending for a number of years, there was nothing to indicate that the authorities had not put appropriate efforts into investigating what had happened to the applicant’s son. Furthermore, once the authorities had obtained information in 2004 about A.G.’s possible involvement, they had pursued this lead effectively. A.G. had been convicted and given a custodial sentence. The imperative of establishing the circumstances of the case and the person responsible had therefore been satisfied in this case.

The main thrust of the applicant’s complaint concerned, however, the failure to enforce the custodial sentence imposed on A.G., in particular, the authorities’ choice not to impose any remand measures on A.G. until his conviction in November 2012.

After his acquittal in 2009 and before his conviction in November 2012, A.G had taken part in the examination of his case by the Court of Appeal and the Supreme Court, even though no action had been taken by the authorities to ensure his participation. It could thus not be held that the authorities had not displayed the requisite diligence in guaranteeing his participation in the criminal proceedings.

As for the actions taken after A.G.’s conviction, there had been a delay of nine days in sending the judgment for execution, which in itself could be problematic. However, it was not sufficient to find a violation of Article 2 in the present case as it was not clear whether A.G had already left Lithuania before his conviction, thus rendering ineffective any eventual prompt action aimed at the execution of his sentence.

Furthermore, the authorities had announced a national and international search for him after learning, in December 2012, that he had fled justice, and subsequently, in February 2013, a European Arrest Warrant. After receiving information from Interpol about his possible whereabouts, an international legal-assistance request had been issued with the aim of ensuring his extradition, to no avail. Subsequently, A.G had been granted refugee status in the Russian Federation and could thus not be extradited to Lithuania, 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.

Under those circumstances, the measures taken by the State with the aim of finding A.G. after his conviction and having him extradited to Lithuania had been sufficient as regards its responsibility to enforce criminal law against those who had unlawfully taken the life of another.

Conclusion: no violation of Article 2(six votes to one)(echrcaselaw.com editing). 


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