“Core” rights. Right to life (Article 2). Effective investigation

Last Updated on September 22, 2021 by LawEuro

Overview of the Case-law of the ECHR 2018

“Core” rights

Right to life (Article 2)

Effective investigation

In the Mazepa and Others v. Russia[4] judgment, the Court examined the scope of an investigation into the contract killing of a prominent journalist.

The case concerns the alleged contract killing of a prominent investigative journalist in 2006. Following nine years of investigation and court proceedings, five individuals were eventually convicted of her murder. Those who commissioned the killing have not yet been identified. The applicants, family members of the victim, alleged that the authorities had breached their procedural obligation under Article 2 of the Convention by failing to carry out an effective investigation.

The Court found a breach of the procedural limb of Article 2.

In its view, the investigation was inadequate notwithstanding that it had led to the identification and conviction of five individuals directly responsible for the murder. There was a broader issue which has not yet been properly addressed, namely the identification of the person or persons who commissioned the assassination. Two points may be highlighted.

Firstly, it is noteworthy that the Court placed emphasis on the status of the victim – an investigative journalist. It observed in this connection (paragraph 73) as follows.

“[I]n cases where the victim of a killing is a journalist, it is of utmost importance to check a possible connection of the crime to the journalist’s professional activity. In this connection, the Court would also refer to Recommendation CM/Rec (2016) 4 on the protection of journalism and safety of journalists and other media actors, in which the Committee of Ministers recommended in paragraph 19 that the conclusions of an investigation must be based on a thorough, objective and impartial analysis of all the relevant elements, including the establishment of whether there is a connection between the threats and violence against journalists and other media actors and the exercise of journalistic activities or contributing in similar ways to public debate.”

This is also an interesting illustration of the Court’s willingness to have recourse to “soft law” as an aid to its interpretation of the Convention’s provisions.

Secondly, it stressed (paragraph 75)

“… that the investigation into a contract killing [of a public figure] cannot be considered adequate to the extent of discharging the obligation of means implicit in the procedural limb of Article 2 in the absence of genuine and serious investigative efforts taken with the view to identifying the intellectual author of the crime, that is, the person or people who commissioned the assassination. The domestic authorities’ scrutiny in the case concerning a contract killing must aim to go beyond identification of a hitman and it is incumbent on the Court to satisfy itself that the investigation in the present case has addressed this important point (see, for example, Gongadze v. Ukraine, no. 34056/02, § 176, ECHR 2005-XI, and Huseynova v. Azerbaijan, no. 10653/10, §§ 115-16, 13 April 2017).”

With these considerations in mind, the Court highlighted the following shortcomings. Although the authorities appeared to have pursued one possible line of inquiry, the respondent State did not provide the Court with any meaningful information about the nature of the measures taken or the follow-up given to the requests they had made to a third State for assistance in the matter. Nor was any explanation given as to why the investigation was focused for a considerable number of years on this single line of inquiry. The Court observed in this connection that the applicants had alleged that public officials may have been implicated in the killing, having regard to the victim’s media work during the Chechen conflict. For the Court, in order to comply with Article 2 procedural requirements the domestic authorities should have explored these allegations, even if they eventually proved to be unfounded.

Furthermore, the Court found that the respondent State had failed to provide highly plausible and convincing reasons capable of justifying the length of the proceedings, thus entailing a breach of the promptness and reasonable-expedition requirement of the Article 2 procedural obligation (see, in this connection, Cerf v. Turkey[5]).

Akelienė v. Lithuania[6] concerned the authorities’ failure to enforce the custodial sentence imposed on an individual convicted of murdering the applicant’s son.

The applicant’s son and another person disappeared in April 1994. A.G., a suspect early on in the investigation, was arrested on 17 March 2006 and charged with their murder. He was placed in pre-trial detention. On 22 November 2006 the Court of Appeal ordered that he be released. Referring to the requirements of Article 5 of the Convention, the Court of Appeal observed, among other things: the case against A.G. was weak; there were no grounds for fearing that he would go into hiding; he had no previous convictions; and the main investigative acts had been completed. In view of the Court of Appeal’s finding that alternative means for ensuring A.G.’s appearance at trial should be considered, his identity card and passport were subsequently confiscated. He was also ordered not to leave his place of residence and to report to the police every other day.

On 2 February 2009 the trial court acquitted A.G. and the above-mentioned pre-trial restrictions were lifted. The judgment acquitting A.G. was upheld on appeal, but was later quashed by the Supreme Court on 5 July 2011. Following a fresh hearing before the Court of Appeal, A.G. was found guilty on 27 November 2012 and sentenced to fourteen years’ imprisonment. The judgment was sent for execution on 6 December 2012. The authorities learned on 11 December 2012 that A.G. had fled. A national and international search was launched, and on 26 February 2013 the authorities issued a European arrest warrant. According to the information provided by the Government, A.G. was granted refugee status in Russia.

In the Convention proceedings the applicant complained in particular of the failure to enforce the custodial sentence imposed on A.G. and drew attention in this connection to the fact that no remand measures were imposed on A.G. during the examination of the case by the Supreme Court and the Court of Appeal. She relied on Article 2 of the Convention. The Court found that there had been no breach of that Article.

The judgment is interesting in that the Court’s reasoning is focused on a particular aspect of the State’s procedural obligation under Article 2 of the Convention, namely the execution of the final judgment convicting an individual found guilty of the unlawful taking of the life of another. It stressed in this connection (paragraph 85) that

“… 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).”

Turning to the applicant’s contention that A.G. should have been detained after the Supreme Court had quashed the acquittal judgment so as to avoid the risk of his absconding, the Court noted that A.G. had been present at all of the various proceedings in his case including the fresh hearing on the merits before the Court of Appeal. On that account the Court was “not prepared 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” (paragraph 90 in fine).

As regards the period following the pronouncement of the final conviction judgment, the Court had regard to the measures deployed by the authorities to establish A.G.’s whereabouts and to have him extradited. It assessed the diligence shown, having regard to the circumstances as a whole and the nature of the efforts made. It concluded (paragraph 93):

“… 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).”

Interestingly, the Court did not take issue with the delay in sending the judgment for execution. While observing that such delay may be problematic in itself, it was not ready to find in this case a violation of Article 2 of the Convention on that fact alone, given that it was 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.

The case is also of interest in that it illustrates the tension which may arise between the requirements of Article 5 § 3 of the Convention – and in particular the application of the principle that the presumption is in favour of liberty – and the Article 2 procedural obligation to ensure that those found responsible by the courts for unlawful killings are punished.


4. Mazepa and Others v. Russia, no. 15086/07, 17 July 2018.

5. Cerf v. Turkey, no. 12938/07, §§ 80-81, 3 May 2016.

6. Akelienė v. Lithuania, no. 54917/13, 16 October 2018 (not final).

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