SECOND SECTION
\nCASE OF TUM\u0116NIEN\u0116 v. LITHUANIA
\n(Application no. 10544\/17)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n1 October 2019<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Tum\u0117nien\u0117 v. Lithuania,<\/strong><\/p>\n The European Court of Human Rights (Second Section), sitting as a Committee composed of: Having deliberated in private on 10 September 2019,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1. The case originated in an application (no. 10544\/17) against the Republic of Lithuania lodged with the Court under Article\u00a034 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Lithuanian national, Ms Diana Tum\u0117nien\u0117 (\u201cthe applicant\u201d), on 30 January 2017.<\/p>\n 2. The applicant was represented by Ms E. Matulionyt\u0117, a lawyer practising in Vilnius. The Lithuanian Government (\u201cthe Government\u201d) were represented by their Agent, Ms L. Urbait\u0117.<\/p>\n 3. On 22 June 2018 the application was communicated to the Government.<\/p>\n THE FACTS<\/strong><\/p>\n I. THE CIRCUMSTANCES OF THE CASE<\/p>\n 4. The applicant was born in 1970 and lives in K\u0117dainiai.<\/p>\n A. The applicant\u2019s brother\u2019s death<\/strong><\/p>\n 5. On 7 July 2005 the applicant\u2019s twenty-two-year-old brother, M.K., was hospitalised in Klaip\u0117da with serious injuries. According to a police report drawn up on that day, he refused to be examined by doctors or to talk to the police. On the evening of 10\u00a0July\u00a02005 M.K. died at the hospital. His body was examined by a court medical expert, who found that the cause of M.K.\u2019s death had been an injury to the head which had fractured the skull and led to swelling of the brain. The expert found multiple contusions and bruises all over M.K.\u2019s body which had likely been caused by blows from hard blunt objects. Another expert later found that M.K. had had a blood alcohol level of 3.85 per mille.<\/p>\n B. Pre-trial investigation<\/strong><\/p>\n 1. Initial investigative measures<\/em><\/p>\n 6. On 7 July 2005 the authorities in Taurag\u0117 opened a pre-trial investigation concerning M.K.\u2019s injuries. After his death, the legal grounds for the investigation were changed to murder. On various dates the applicant and her mother and siblings were granted victim status and questioned as witnesses.<\/p>\n 7. The applicant\u2019s mother told the pre-trial investigation officers that on the evening of 6\u00a0July 2005 M.K. had left her house without telling her where he was going. At around 2 a.m. that night she had been woken by the doorbell and had seen M.K. sitting outside the house, bleeding. She had called an ambulance, which had taken M.K. to hospital.<\/p>\n 8. On 7 July 2005 the Taurag\u0117 authorities also examined the courtyard of the applicant\u2019s mother\u2019s house, where they found bloodstains and a single cigarette. They also spoke to several neighbours, but were unable to obtain any useful information.<\/p>\n 9. On the same day the authorities questioned one of M.K.\u2019s acquaintances, V.S. He stated that in the past he and M.K. had gone abroad together to commit burglaries, but he had not seen M.K. for about a month. V.S. also told officers that he had previously attempted to commit suicide and was planning to do it again because he did not wish to live anymore.<\/p>\n 10. On 11 July 2005 the applicant\u2019s mother was questioned again and she stated that M.K.\u2019s mobile phone and jewellery had disappeared after the assault. She also stated that when M.K. had been at the hospital, a man whom she did not know had come to see him. However, a nurse working at the hospital later told the officers that nobody had come to see M.K.<\/p>\n 11. In July 2005 the authorities searched the applicant\u2019s mother\u2019s house and two cars which had been used by M.K., obtained records of telephone conversations, and questioned further witnesses. Several of M.K.\u2019s siblings and acquaintances stated that M.K. had previously been assaulted by V.S. (see paragraph 9 above), or that they had heard that V.S. had played a part in M.K.\u2019s death. In addition, some witnesses expressed their belief that the assault on M.K. might have been related to his alleged involvement in human trafficking.<\/p>\n 12. On 5 August 2005 a hospital in Taurag\u0117 informed the authorities that from 2 to 28 July 2005 V.S. had been hospitalised in its psychiatric ward (an open facility) after a suicide attempt, but he had subsequently left the hospital. On 28\u00a0August 2005 V.S. committed suicide.<\/p>\n 13. Between August 2005 and August 2006 the authorities questioned six more witnesses. When questioned on 12 April 2006, M.K.\u2019s sister A. stated that in July 2005 M.K. had had a heated argument with his acquaintance T.D., but she had not mentioned it during her previous questioning because at that time she had not considered it to be important.<\/p>\n 14. On 22 November 2006 the authorities ordered a forensic examination of the cigarette which had been found near the applicant\u2019s mother\u2019s house (see paragraph 8 above). On 29 June 2007 the expert reported that the cigarette did not contain traces of human blood, and that it was not possible to determine if it contained any human biological traces.<\/p>\n 2. T.D.\u2019s confession<\/em><\/p>\n 15. On 28 November 2006 the Taurag\u0117 district prosecutor ordered the pre-trial investigation officers to, inter alia, locate and question T.D. (see paragraph 13 above). On 2 January 2007 the police questioned T.D.\u2019s mother and on 10 January 2007 T.D. was apprehended.<\/p>\n 16. On 10 January 2007, in the presence of his lawyer, T.D. confessed to the murder of M.K. and was served with an official notice that he was a suspect. In a written confession, T.D. stated that on the night of 6\u20117\u00a0July\u00a02005 he had arrived at M.K.\u2019s house with the intention of asking him to give back car wheels which he had borrowed. M.K. had pointed a gun at T.D. and had started threatening him, so T.D. had hit M.K. with a baseball bat and consequently M.K. had dropped the gun. M.K. had then grabbed a metal stick from his car and the two men had begun fighting. When the fight had subsided, T.D. had taken M.K.\u2019s metal stick and taken it with him to his mother\u2019s house. T.D. stated that he had hit M.K. because he had been aware of M.K.\u2019s impulsive character and had been afraid for his own life.<\/p>\n 17. On the same day T.D. was taken to M.K.\u2019s house and he showed where the fight had occurred and how he had hit M.K. He stated that after the fight, on his way home, he had thrown the baseball bat out of the car window, but he could not remember where exactly. T.D. was then taken to his mother\u2019s house, where he showed the metal stick which he had taken from M.K. and had kept in storage.<\/p>\n 18. T.D. was questioned again on 18 January, 19 January and 12 July 2007, and on each occasion he stood by his previous statements.<\/p>\n 19. On 22 January 2007 the applicant\u2019s mother and her live-in partner told the authorities that, to their knowledge, M.K. had not owned any guns or sticks. They were shown photographs of several metal sticks, including the one which had been taken from T.D. (see paragraphs 16 and 17 above), but did not recognise any of them.<\/p>\n 20. T.D. was kept in pre-trial detention from 12 to 27 January 2007. On 26\u00a0January 2007 he was released from detention, his passport was taken from him, he was prohibited from leaving the country, and he was ordered to periodically register at the local police station.<\/p>\n 21. On 20 August 2007 the district prosecutor observed that only some of the instructions which had been given to the pre-trial investigation officers on 28 November 2006 (see paragraph 15 above) had been carried out. He ordered the officers to locate and question three other acquaintances of M.K., identify the individual who, according to the applicant\u2019s mother, had come to see M.K. at the hospital (see paragraph 10 above), and examine the circumstances of the disappearance of M.K.\u2019s personal belongings (see paragraph 10 above).<\/p>\n 22. Subsequently the applicant\u2019s mother was shown photographs of several men, but she was unable to recognise the individual who had come to see M.K. at the hospital.<\/p>\n 23. One of the witnesses identified by the prosecutor (see paragraph 21 above) was questioned and stated that, to his knowledge, M.K. had been assaulted by V.S. and T.D.<\/p>\n 24. Another individual identified by the prosecutor was serving a prison sentence in Ireland. He was questioned in Ireland on 12\u00a0November 2008 and stated that he had seen M.K. on the day of the assault, but he did not know anything about the circumstances of the assault and did not know who T.D. was. It appears that the witness statement was sent to the Lithuanian authorities on 27 February 2009.<\/p>\n 25. On 30 May 2008 the district prosecutor ordered the pre-trial investigation officers to question certain other witnesses and examine the circumstances under which M.K. had consumed alcohol before the assault (see paragraph\u00a05 above), as several witnesses who had seen M.K. on the day of the assault had stated that he had been sober and that he had rarely drunk alcohol.<\/p>\n 26. On 20 March 2009 the victims\u2019 lawyer was informed that the pre\u2011trial investigation had been completed and that he could consult the case file.<\/p>\n 3. Withdrawal of T.D.\u2019s confession<\/em><\/p>\n 27. On 6 May 2009 T.D. was questioned again at his request. He withdrew his previous statements (see paragraphs 16-18 above) and denied having assaulted M.K. He stated that he had falsely incriminated himself under pressure from police officers. T.D. was questioned again on 4 June 2009 and again stated that the text of his confession had been dictated to him by police officers.<\/p>\n 28. In June 2009 one of the two police officers who had recorded T.D.\u2019s confession was questioned as a witness. He stated that T.D. had been apprehended after operational information had been received about his involvement in the assault on M.K., and denied that there had been any pressure on T.D. to confess.<\/p>\n 29. Between July and October 2009 four witnesses, including the applicant and her mother, were questioned again. Two of them gave statements similar to those they had given before, namely that M.K. had previously been injured by V.S. and that they had heard that V.S. had contributed to M.K.\u2019s death (see paragraph 11 above). The applicant\u2019s mother additionally stated that a few days after M.K.\u2019s funeral V.S. had come to her house, kneeled in front of her and apologised, saying that \u201cthey had not meant it\u201d. She also stated that, in her opinion, M.K. had been assaulted by several individuals, because when she had found him outside her house, he had said to her \u201cthey [wanted] to steal the car\u201d. The applicant confirmed that she had been at her mother\u2019s house when V.S. had come and that she had heard his words. She further stated that when M.K. had been at the hospital, she had seen the man who had come to visit M.K. and had recognised him as V.S.\u2019s brother, N.B.; however, according to the applicant\u2019s mother, the man at the hospital had not looked like N.B. The applicant also claimed that she had spoken to police officers soon after the assault, but her statements had not been recorded.<\/p>\n 30. In November 2009 the authorities contacted N.B. by telephone (see paragraph 29 above). N.B. stated that he lived in Ireland and did not intend to return to Lithuania. He also stated that he had known M.K., but had not been in touch with him. From the documents in the Court\u2019s possession, it does not appear that N.B. was specifically asked about the circumstances of the assault on M.K., or his alleged visit to the hospital.<\/p>\n 4. Discontinuation and reopening of the pre-trial investigation<\/em><\/p>\n 31. On 28 December 2009 the district prosecutor discontinued the pre\u2011trial investigation on the grounds that there was insufficient evidence that the suspect, T.D., had committed the crime.<\/p>\n 32. The applicant and the other victims appealed against that decision to a senior prosecutor, who on 17 February 2010 reopened the investigation. The senior prosecutor stated that insufficient evidence against T.D. was only grounds for discontinuing the investigation in respect of T.D. However, the investigation as such had to continue, because not all the circumstances of M.K.\u2019s death had been uncovered. In particular, there had been suspicions that M.K. had participated in smuggling or human trafficking (see paragraph\u00a011 above), but they had not been investigated; at least two witnesses had not been questioned (see paragraph 21 above); the motive for the murder had not been identified; and certain contradictions in witness testimonies concerning M.K.\u2019s final hours had not been clarified, including those concerning his alcohol consumption.<\/p>\n 33. The applicant and the other victims appealed against the senior prosecutor\u2019s decision, arguing that there was sufficient evidence against T.D. and that charges against him should be transferred to a court for examination. On 19 April 2010 the Taurag\u0117 District Court allowed the appeal in part and reopened the investigation in respect of T.D. It held that the senior prosecutor had correctly decided to reopen the investigation, but the decision to discontinue the investigation in respect of T.D. had been unfounded. The court noted that T.D. had initially given consistent statements about his guilt as regards M.K.\u2019s murder (see paragraphs 16-18 above) but had later withdrawn them, claiming that police officers had pressured him to incriminate himself. However, his allegation of undue police pressure had not been sufficiently investigated, and only one of the two officers who had questioned him had been questioned (see paragraph\u00a028 above). Furthermore, it had not been established whether T.D. had an alibi for the night of the assault. The court therefore held that although there was not enough evidence to draw up an indictment against T.D. and transfer the case to a court for examination, T.D. had to remain a suspect and his role in M.K.\u2019s murder had to be further investigated.<\/p>\n 5. Further investigative measures<\/em><\/p>\n 34. In May 2010 the authorities questioned the other police officer who had recorded T.D.\u2019s confession. Like the first officer (see paragraph\u00a028 above), he stated that T.D. had been apprehended after operational information had been received about his involvement in the assault on M.K., and denied that there had been any pressure on T.D. to confess. The officer stated that T.D., in the presence of a lawyer, had voluntarily confessed and had expressed remorse for killing M.K., which the officers had found honest.<\/p>\n 35. In the meantime, in February 2010 T.D. had left for the United Kingdom, and in May 2010 he declared that that was his official place of residence. In June 2010 the Lithuanian authorities announced an official search in respect of him, and in November 2010 they issued a European arrest warrant. In May 2011 T.D. was surrendered to the Lithuanian authorities and was placed in detention on remand.<\/p>\n 6. Disciplinary proceedings carried out by the Prosecutor General\u2019s Office<\/em><\/p>\n 36. Before T.D.\u2019s arrest (see paragraph 35 above), the applicant\u2019s lawyer sent a letter to the Prosecutor General\u2019s Office, complaining that the search was not being pursued and that the victims were not being informed of the developments in the investigation. The lawyer asked the Prosecutor General to verify whether the Taurag\u0117 district prosecutor was acting in line with his legal obligations.<\/p>\n 37. In December 2010 the Prosecutor General\u2019s Office informed the applicant\u2019s lawyer that an internal inquiry had been carried out and that it had been found that the pre-trial investigation into M.K.\u2019s murder was being conducted sluggishly (ikiteisminis tyrimas atliekamas vangiai) and in breach of procedural requirements, that the prosecutors in charge of the investigation had likely failed to ensure that it was being conducted in a thorough and intensive manner, and that they had failed to properly control the investigation, which had caused an excessive delay. Disciplinary proceedings were opened in respect of the two prosecutors who had been in charge of the investigation.<\/p>\n 38. In January\u00a02011 the Prosecutor General\u2019s Office issued the conclusions of the disciplinary proceedings. It found that the prosecutor who had been in charge of the pre-trial investigation from July 2005 to December 2009 had not taken all available measures to investigate the criminal offence within the shortest possible time. As a result, many potential witnesses had gone abroad, one important witness had died (see paragraph 12 above), and others had \u201cclearly withheld evidence\u201d, and the investigation had become very difficult. It was therefore doubtful whether an appropriate and objective investigation of M.K.\u2019s murder was possible at all. The Prosecutor General further held that because of the inappropriate and insufficient investigation during the initial stages, a great deal of important data of potential evidentiary value had been lost, and thus it was questionable whether the evidence which had been gathered was sufficient to transfer the case to a court for examination on the merits. However, since the relevant prosecutor had retired from office, the Prosecutor General discontinued the disciplinary proceedings against him.<\/p>\n 39. As for the prosecutor who had taken over the pre-trial investigation afterwards, the Prosecutor General held that he had not taken all available measures in order to examine M.K.\u2019s alleged involvement in smuggling and human trafficking and uncover the motive of the crime; although the case file included reports stating that those circumstances had been investigated, those reports were \u201cuninformative and formalistic\u201d. Furthermore, the prosecutor had not taken sufficient measures to clarify what M.K. had been doing during the last few hours before the assault and under what circumstances he had consumed alcohol; the prosecutor had also failed to determine in good time that T.D. had gone abroad, and had failed to promptly announce the search in respect of him (see paragraph 35 above). As a result, the length of the pre-trial investigation had been excessive. However, the Prosecutor General concluded that in view of the fact that the investigation had been conducted inappropriately from July\u00a02005 to December 2009, the subsequent shortcomings had not had a significant effect on the overall course of the investigation. Taking into account the prosecutor\u2019s positive character references, the Prosecutor General decided not to give him a disciplinary penalty.<\/p>\n 7. End of the pre-trial investigation<\/em><\/p>\n 40. After T.D.\u2019s apprehension in the United Kingdom and surrender to the Lithuanian authorities (see paragraph 35 above), he was questioned again in May 2011. T.D. denied his guilt and alleged that M.K. could have been killed by V.S., although he did not have any proof of that. T.D. also participated in a formal confrontation with one of the police officers who had recorded his initial confession. During the confrontation, T.D. claimed that the officers had pressured him to confess by threatening to detain him with criminals who had known M.K., by threatening his family, and by promising that if he confessed, he would not go to prison. The officer denied T.D.\u2019s allegations and stated that T.D. had confessed of his own free will.<\/p>\n 41. In July 2011 the Lithuanian authorities requested that the relevant United Kingdom authorities extend the scope of the European arrest warrant against T.D. (see paragraph 35 above) in order to add a charge of theft of a firearm by means of physical violence, for his theft of M.K.\u2019s gun. The United Kingdom authorities gave their consent in October 2011.<\/p>\n 42. On 8\u00a0December 2011 the authorities informed the victims\u2019 lawyer that the pre-trial investigation had been completed and that he had the right to consult the case file.<\/p>\n C. Court proceedings<\/strong><\/p>\n 43. On 21 December 2011 an indictment was drawn up against T.D. and the case was transferred to the Klaip\u0117da Regional Court for examination. The applicant and the other victims lodged civil claims.<\/p>\n 1. The Klaip\u0117da Regional Court<\/em><\/p>\n 44. Between March 2012 and February 2014 twelve hearings were scheduled before the Klaip\u0117da Regional Court. Four of them were adjourned because of the illness or absence of a judge.<\/p>\n 45. On 20 February 2014 the Klaip\u0117da Regional Court acquitted T.D. on the grounds of insufficient evidence. It observed that the charges against him had essentially been based on his own confession given during the pre\u2011trial investigation (see paragraphs 16-18 above). However, that confession had been unpersuasive and illogical \u2013 the court found it particularly unlikely that T.D. might have hit M.K. with a baseball bat while the latter had been holding a gun. The court also considered, on the basis of the report of the court medical expert (see paragraph 5 above) and the expert\u2019s testimony at the hearing, that it was likely that M.K. had been injured by several different objects, but from T.D.\u2019s confession it was not clear how the metal stick had found its way into M.K.\u2019s hands and how T.D. could have hit M.K. with both the baseball bat and the metal stick.<\/p>\n 46. The court further observed that several witnesses, including M.K.\u2019s family members, had testified that M.K. had referred to his attackers as \u201cthem\u201d (see paragraph 29 above), which indicated multiple perpetrators, but that hypothesis had never been investigated. One of the pre-trial investigation officers testified before the court that she had had the impression that M.K. had been assaulted by several individuals, but since T.D. had confessed and no other suspects had been identified, that line of investigation had not been pursued. Another officer testified that T.D. had been identified as a suspect after the police had received operational information, but the officer was unable to explain to the court why the person who had provided that information had not been questioned as a witness; the officer stated that after T.D. had confessed, \u201cit had not been considered necessary\u201d.<\/p>\n 47. The court held that there was no objective evidence linking T.D. to the crime. The baseball bat with which he had allegedly beaten M.K. had not been found, and the metal stick in T.D.\u2019s storehouse had not contained any traces linking it to the crime. The court also considered it illogical that T.D. would have thrown away his baseball bat but kept M.K.\u2019s metal stick\u00a0\u2011\u00a0the murder weapon \u2013 in storage at his mother\u2019s house.<\/p>\n 48. The court lastly held that when T.D. had confessed almost two years after the murder, investigative measures had been carried out hastily (skubotai) and no objective evidence had been gathered either before the discontinuation of the investigation (see paragraph 31 above) or after it had reopened (see paragraph 33 above). In particular, M.K.\u2019s personal belongings which had allegedly been stolen from him on the night of the murder (his mobile phone and jewellery) and his gun had not been found.<\/p>\n 49. After acquitting T.D., the court dismissed the civil claims lodged by the applicant and the other victims.<\/p>\n 2. The Court of Appeal<\/em><\/p>\n 50. The applicant lodged an appeal against the Klaip\u0117da Regional Court\u2019s decision. She argued that the court had not assessed the evidence in its entirety and, without good reason, had refused to rely on T.D.\u2019s confession, which had been detailed, consistent and corroborated by witness testimonies.<\/p>\n 51. The prosecutor lodged an appeal as well, arguing that there was sufficient evidence to convict T.D. and that there were no objective grounds to believe that there might have been multiple perpetrators.<\/p>\n 52. Between April 2014 and May 2016 seven hearings were scheduled before the Court of Appeal. One of them was adjourned because a judge was ill, and another one was adjourned because of the absence of a witness.<\/p>\n 53. On 10 May 2016 the Court of Appeal dismissed the appeals. It upheld the lower court\u2019s findings that T.D.\u2019s confession had been unreliable and that there had been no objective evidence of his guilt.<\/p>\n 54. The Court of Appeal considered that, when questioned on each occasion, T.D. had given a slightly different account of the night of the assault, which gave grounds to doubt his confession. In particular, T.D. had provided contradictory details as to where exactly he and M.K. had met that night; at what moment M.K. had pointed a gun at him; when the metal stick had appeared and where it had come from; where the gun, the baseball bat and the metal stick had been dropped during the fight; whether, after the fight, T.D. had gone to his mother\u2019s house or to his own rented flat; and whether he had hidden the metal stick in storage at his mother\u2019s house immediately that night or sometime later. The contradictions had not been clarified at the scene of the crime, nor had any additional investigative measures been carried out to credibly establish the circumstances of the crime. The court pointed out that between T.D.\u2019s questioning on 12 July 2007 (see paragraph\u00a018 above) and March 2009, when the parties to the proceedings had been informed about the end of the investigation (see paragraph\u00a026 above), no investigative measures had been taken in order to promptly and thoroughly examine the circumstances of the crime.<\/p>\n 55. The court further stated that between the start of the pre-trial investigation in July 2005 and T.D.\u2019s arrest in January 2007 no other suspects had been identified. Police officers had testified before the court that during the investigation they had obtained operational information that T.D. had murdered M.K., yet no evidence collected in line with the domestic law on operational activities had been presented in the proceedings and none of the officers had identified the source of such information. It remained unclear whether an operational investigation had been conducted, and, if so, when and on what grounds, what information had been obtained and how it had been used. The court also emphasised that the crime had been committed in July 2005 and that T.D. had been arrested in January\u00a02007, but the officers had not mentioned the operational information allegedly received about T.D. until 2009. The court considered that, in the absence of details about the source of the operational information, the officers\u2019 testimony in that regard could not be considered credible.<\/p>\n 56. The court also stated that the investigation had not established what car T.D. had been driving on the night of the murder, whether there had been phone calls between T.D. and other individuals which could have confirmed or denied his guilt, or whether on the night of the assault M.K. had actually had a gun or any other personal belongings which had allegedly been taken from him, since no such items had been found.<\/p>\n 57. The court remitted the case to the prosecutor for further investigation and identification of the perpetrator.<\/p>\n 3. The Supreme Court<\/em><\/p>\n 58. The applicant lodged an appeal on points of law, but on 29 August 2016 the Supreme Court refused to accept it for examination, on the basis that it raised no important legal issues.<\/p>\n D. Further developments<\/strong><\/p>\n 59. On 30 June 2016 the Taurag\u0117 police informed the prosecutor that the pre-trial investigation was ongoing, but that the investigative measures which had been taken to date had not identified any more witnesses or potential suspects. On 18 July 2016 the prosecutor discontinued the investigation.<\/p>\n 60. On 14 September 2018 a senior prosecutor quashed the decision to discontinue the investigation, finding that there were no legal grounds to do so. However, the senior prosecutor suspended the investigation, on the grounds that thirteen years had passed since the criminal offence, the investigation had lasted six years and all available measures had been carried out, but it had not been possible to identify the perpetrator. The applicant and the other victims were informed about the senior prosecutor\u2019s decision. It was also explained to them that if new relevant circumstances came to light, the investigation would be resumed.<\/p>\n II. RELEVANT DOMESTIC LAW<\/p>\n 61. From 1 May 2003 until 1 October 2010 Article 176 \u00a7 1 of the Code of Criminal Procedure (hereafter \u201cthe CCP\u201d) provided that a pre\u2011trial investigation had to be completed within the shortest possible time. Article\u00a0176 \u00a7\u00a02 of the CCP provided that the prosecutor was under an obligation to control compliance with that requirement.<\/p>\n 62. Since 1 October 2010 Article 176 \u00a7 1 (3) of the CCP has provided that a pre-trial investigation concerning serious and very serious crimes has to be completed within nine months. Article 176 \u00a7 2 of the CCP provides that that time-limit can be extended by a senior prosecutor when the case is complex or of a large scope, or when there are other important circumstances.<\/p>\n THE LAW<\/strong><\/p>\n I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION<\/p>\n 63. The applicant complained, without invoking any specific provision of the Convention, that the investigation into her brother\u2019s death had been lengthy and ineffective. The Court, being the master of the characterisation to be given in law to the facts of a case (see Radomilja and Others v.\u00a0Croatia [GC], nos.\u00a037685\/10 and 22768\/12, \u00a7\u00a7 114 and 126, 20 March 2018), considers that this complaint falls to be examined under the procedural limb of Article 2 of the Convention. The relevant part of that provision reads:<\/p>\n \u201c1. Everyone\u2019s right to life shall be protected by law. …\u201d<\/p>\n A. Admissibility<\/strong><\/p>\n Exhaustion of domestic remedies<\/strong><\/p>\n (a) The parties\u2019 submissions<\/p>\n 64. The Government submitted that the applicant had failed to exhaust effective domestic remedies. In particular, she could have lodged a civil claim against the authorities which had been in charge of the investigation (the police and the prosecutors\u2019 offices) or against the State, and obtained compensation in respect of non-pecuniary damage for the authorities\u2019 failure to act with due diligence. The Government also submitted that the applicant\u2019s mother could have obtained compensation from the State in accordance with domestic legislation on compensation for the victims of violent crime.<\/p>\n 65. The applicant argued that monetary compensation could not be considered an effective remedy for her complaint that the investigation into her brother\u2019s death had not been effective. She also submitted that she had exhausted the available avenues of redress in the criminal proceedings, and therefore she had not been obliged to institute additional proceedings for compensation. Lastly, she submitted that her mother was not an applicant in the present case, and thus any domestic remedies which might have been available to her mother were irrelevant.<\/p>\n (b) The Court\u2019s assessment<\/p>\n 66. The Court reiterates that under Article 35 \u00a7 1 of the Convention it may only deal with a matter after all domestic remedies have been exhausted. However, the only remedies which have to be exhausted are those that relate to the alleged violation and are capable of redressing it. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness: it falls to the respondent State to establish that these conditions are satisfied (see Kar\u00e1csony and Others v.\u00a0Hungary [GC], nos.\u00a042461\/13 and 44357\/13, \u00a7 76, 17 May 2016, and the cases cited therein).<\/p>\n 67. The Court also reiterates that in cases of fatal assault, a breach of Article 2 of the Convention cannot be remedied exclusively through an award of compensation to the relatives of the victim (see Tsalikidis and Others v.\u00a0Greece, no. 73974\/14, \u00a7 109, 16 November 2017, and the cases cited therein). Consequently, an action for monetary compensation in respect of non-pecuniary damage was not a remedy that the applicant had to exhaust in the present case.<\/p>\n 68. Nor can the Court accept that the existence of a remedy which, according to the Government, was available to the applicant\u2019s mother but not to the applicant herself (see paragraph 64 above) could affect the admissibility of the applicant\u2019s complaints before the Court.<\/p>\n 69. The Court further observes that the applicant participated in the criminal proceedings concerning her brother\u2019s death; she was granted victim status and lodged a civil claim, and she submitted applications and appeals in those proceedings (see paragraphs 6, 32, 33, 36, 43, 50 and 58 above). In such circumstances, the Court is satisfied that the applicant fully exhausted the avenues of redress available to her under the criminal law and that she was not required to institute separate civil proceedings (see Semache v.\u00a0France, no. 36083\/16, \u00a7 54, 21 June 2018, and Akelien\u0117 v.\u00a0Lithuania, no.\u00a054917\/13, \u00a7 68, 16 October 2018). Accordingly, it dismisses the Government\u2019s objection regarding exhaustion of domestic remedies.<\/p>\n 70. The Court lastly notes that the application is not manifestly ill\u2011founded within the meaning of Article\u00a035\u00a0\u00a7\u00a03\u00a0(a) of the Convention, nor is it inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B. Merits<\/strong><\/p>\n 1. The parties\u2019 submissions<\/em><\/p>\n (a) The applicant<\/p>\n 71. The applicant submitted that the investigation into her brother\u2019s death had not been thorough and had not been carried out with the requisite diligence; there had been substantial delays and the authorities had failed to follow up on various leads. In particular, despite multiple witness testimonies hinting at V.S.\u2019s involvement in M.K.\u2019s murder (see paragraph\u00a011 above), the authorities had failed to question V.S. again before he had committed suicide (see paragraph 12 above). The applicant also claimed that T.D. had been identified as one of the main suspects at the very beginning of the investigation, but the authorities had not begun searching for him until November 2006 (see paragraph 15 above). Furthermore, after T.D.\u2019s confession in January 2007, it had taken the authorities two years to complete the investigation and nearly three more years to bring the case before a court (see paragraphs 26 and 43 above).<\/p>\n 72. The applicant further contended that she and the other victims had fully cooperated with the authorities and had immediately disclosed to them all the relevant information concerning M.K.\u2019s relations with V.S. and T.D. However, she claimed that many of their conversations with the authorities had taken place in an informal context and had not been recorded (see paragraphs 9 and 29 above). The applicant lastly submitted that, while at the hospital, M.K. had communicated with the authorities to the extent that his injuries had permitted him (see paragraph 5 above).<\/p>\n (b) The Government<\/p>\n 73. The Government submitted that the initial investigative measures had been carried out without any delay \u2013 the authorities had examined the scene of the crime, questioned multiple witnesses and carried out searches (see paragraphs 6-11 above). M.K.\u2019s body had been examined by a medical expert and the cause of death had been established (see paragraph\u00a05 above). However, due to the fact that no material evidence had been found at the scene of the crime, witness testimonies had been the main source of information for the authorities. In this regard, the Government submitted that M.K., before his death, had refused to cooperate and provide details about the assault (see paragraph 5 above), and that his relatives had failed to provide important information right away. In particular, the applicant\u2019s sister had mentioned M.K.\u2019s conflict with T.D. only in April\u00a02006 (see paragraph 13 above), and only in 2009 had the applicant\u2019s mother revealed the fact that V.S. had come to her house to apologise (see paragraph 29 above). The Government therefore argued that the efforts of the authorities had been limited by a lack of cooperation on the witnesses\u2019 part, and thus they could not be reproached for the fact that the investigation had failed to produce tangible results. In response to the applicant\u2019s claim that some conversations between the victims and the authorities had not been recorded (see paragraph\u00a072 above), the Government stated that \u201cit might be true that some details of the investigation [had been] left unrecorded\u201d, but they would base their submissions on the written material in the case.<\/p>\n 74. The Government disputed the applicant\u2019s submission that T.D. had been identified as a suspect immediately after M.K.\u2019s death (see paragraph\u00a071 above) \u2013 they stated that T.D. had been mentioned for the first time by the applicant\u2019s sister in April 2006 (see paragraph 13 above). As soon as that information had been received, the authorities had promptly apprehended and questioned T.D. and taken steps to verify his confession by taking him to the scene of the crime and repeatedly questioning other witnesses (see paragraphs 16-24 above). However, the Government emphasised that it had also been necessary to protect T.D.\u2019s right not to incriminate himself, and thus after he had withdrawn his confession, it had been necessary to question him again and duly investigate his allegations of pressure by the police (see paragraphs 27-30 above).<\/p>\n 75. The Government pointed out that a total of thirty-five witnesses had been questioned in the course of the proceedings, many of them repeatedly. However, despite the authorities\u2019 efforts, the investigation had been made difficult by various factors outside of their control: one of the potential suspects, V.S., had committed suicide; another suspect, T.D., had changed his testimony; and some witnesses had also changed their testimony or moved abroad (see paragraphs\u00a012, 24, 27 and 30 above). Nonetheless, the authorities had managed to complete the pre-trial investigation and forward the case to a court for examination on the merits. The Government contended that, despite the shortcomings established by the Prosecutor General\u2019s Office (see paragraphs 38 and 39 above), in the circumstances of the case, the investigation had to be considered effective.<\/p>\n 76. The Government further submitted that after the case against T.D. had been forwarded to the court for examination on the merits, both the first-instance and appellate courts had played an active role and had held oral hearings and examined witnesses. In addition, the appellate court had decided to carry out a fresh assessment of the evidence \u2013 a decision which had prolonged the proceedings, but had been favourable to the applicant.<\/p>\n 77. Lastly, the Government acknowledged that the overall length of the investigation might appear excessive, but argued that it was justified in the circumstances. They also argued that the duration of the proceedings had not affected the authorities\u2019 ability to establish the relevant facts and secure the available evidence. Furthermore, after T.D.\u2019s acquittal, the courts had remitted the case for further investigation, and that investigation was still ongoing (see paragraphs 59 and 60 above). The statute of limitations would expire in 2025, therefore if any new circumstances came to light, those responsible for M.K.\u2019s killing could still be identified and punished.<\/p>\n 2. The Court\u2019s assessment<\/em><\/p>\n 78. The Court observes at the outset that the applicant did not contend that the authorities of the respondent State had been responsible for the death of her brother; nor did she imply that the authorities had known or ought to have known that her brother had been at risk of physical violence at the hands of third parties and had failed to take appropriate measures to safeguard him against such a risk. Accordingly, the present case falls to be examined from the perspective of the State\u2019s obligation to conduct an effective investigation under the procedural limb of Article 2 of the Convention.<\/p>\n 79. The relevant general principles concerning the effectiveness of an investigation within the meaning of Article 2 of the Convention were summarised in Mustafa Tun\u00e7 and Fecire Tun\u00e7 v. Turkey ([GC], no.\u00a024014\/05, \u00a7\u00a7 169-82, 14 April 2015).<\/p>\n 80. Turning to the circumstances of the present case, the Court notes that the applicant did not challenge the independence of the investigation, and nor does the Court see any grounds to do so. Furthermore, having examined the documents in its possession, the Court is satisfied that the applicant was involved in the domestic proceedings to the extent necessary to safeguard her legitimate interests. Accordingly, what needs to be assessed is whether the investigation was adequate, that is to say, capable of leading to the establishment of the facts and the identification and punishment of those responsible, and whether it was carried out with promptness and reasonable expedition (ibid., \u00a7\u00a7 172 and 178).<\/p>\n 81. In this connection, the Court observes that the authorities opened the pre-trial investigation promptly after M.K.\u2019s hospitalisation. In July 2005 they carried out multiple investigative measures aimed at establishing the cause of M.K.\u2019s death and the factual circumstances of the assault (see paragraphs 6-11 above). The Court takes note of the contents of the police report drawn up on the day of M.K.\u2019s hospitalisation, which stated that M.K. refused to talk to the police (see paragraph\u00a05 above). Although the applicant argued that, before his death, M.K. had cooperated with the authorities to the extent that his injuries had permitted him (see paragraph\u00a072 above), in the absence of any written material in support of that claim, the Court is able to accept that without the direct victim\u2019s testimony, it was significantly more difficult for the authorities to establish all the circumstances of the crime (see the Government\u2019s submissions to that effect in paragraph\u00a073 above). In these circumstances, the Court is satisfied that during the first month the investigation into the applicant\u2019s brother\u2019s death was prompt and thorough.<\/p>\n 82. However, in the Court\u2019s view, after those initial steps, the investigation could no longer be considered either thorough or prompt. It notes in particular the authorities\u2019 actions with regard to V.S. The authorities questioned him very early in the investigation (see paragraph\u00a09 above) and the Court considers that to be indicative of the fact that they had reasons to believe that V.S. might have been involved in the killing of M.K. Furthermore, in July 2005 several witnesses testified that M.K. had previously been assaulted by V.S. (see paragraph 11 above). The Court points out that at that time the authorities were aware of V.S.\u2019s intention to commit suicide \u2013 V.S. told them about it himself, and a psychiatric hospital informed them about his previous suicide attempt (see paragraphs 9 and 12 about). However, despite having reliable information that V.S. might take his own life, the authorities did not take any prompt action to locate and question him about his previous assault on M.K., or carry out any other measures to examine his possible role in M.K.\u2019s death. The Court agrees with the Government that the death of V.S. made it more difficult to establish the circumstances of the crime against M.K. (see paragraph 75 above). However, the authorities failed to act with the promptness required in the circumstances to secure evidence from V.S. before he committed suicide.<\/p>\n 83. Furthermore, it does not escape the Court\u2019s attention that following the death of V.S., between August 2005 and August 2006 only six witnesses were questioned and no other relevant investigative measures were taken (see paragraph 13 above).<\/p>\n 84. The Court further observes that in April\u00a02006 the applicant\u2019s sister indicated to the authorities that T.D. was another potential person of interest (see paragraph 13 above). Although the applicant claimed that T.D. must have been a suspect from the very beginning of the investigation (see paragraph 71 above), the Court does not have any documents supporting that claim. In any event, from the material in the Court\u2019s possession, it appears that there were no attempts to locate T.D. before November 2006, that is to say, not until seven months after the authorities had become aware that there had been a conflict between him and M.K. (see paragraph\u00a015 above). No explanation for this delay has been provided to the Court.<\/p>\n 85. After T.D. was apprehended and confessed to assaulting M.K., the applicant\u2019s mother and her live-in partner were questioned about certain details of T.D.\u2019s confession, and did not corroborate them (see paragraph 19 above). However, it does not appear that any measures were taken to address this discrepancy. In this connection, the Court further notes that the domestic courts which subsequently examined the charges against T.D. found that his confession had been \u201cunpersuasive and illogical\u201d and had contained multiple contradictions, but that no investigative measures had been carried out to eliminate them (see paragraphs 45, 47 and 54 above).<\/p>\n 86. The Court further observes that from the start of the investigation there were some indications that M.K. might have been assaulted by several individuals (see paragraphs 11 and 23 above). It can accept that after T.D. confessed to killing M.K. alone, the authorities did not have sufficient grounds to examine the possibility that there might have been multiple perpetrators. However, soon after T.D. withdrew his confession, the applicant and her mother testified that following M.K.\u2019s funeral, V.S. had apologised to the applicant\u2019s mother, saying that \u201cthey had not meant it\u201d (see paragraphs 27 and 29 above). The Court notes that in that same statement the applicant claimed that she had already told the authorities about V.S.\u2019s apology, but that this had not been recorded (see paragraph 29 above). However, the Government denied that claim (see paragraph 73 above), and the Court does not have in its possession any material supporting the applicant\u2019s claim.<\/p>\n 87. Be that as it may, even assuming that the applicant and her mother did not give the information about V.S.\u2019s apology to the authorities promptly, there is no indication that after receiving it in 2009 the authorities actually assessed the possibility of there being multiple perpetrators \u2013 the testimony of the applicant and her mother was not dismissed as unreliable or unsubstantiated, but no actions were taken to investigate their allegations (see, mutatis mutandis, Hakim Aka v. Turkey, no. 62077\/08, \u00a7\u00a039, 6\u00a0November 2018). Indeed, the indictment was drawn up essentially on the basis of T.D.\u2019s initial confession, in which he claimed to have killed M.K. alone (see paragraph 43 above). The Court observes that the Klaip\u0117da Regional Court, which acquitted T.D., also criticised the pre-trial investigation for not addressing the hypothesis that there were multiple perpetrators, and that during the proceedings before that court a pre-trial investigation officer testified that there had been suspicions that M.K. had been assaulted by several individuals, but \u201csince T.D. had confessed and no other suspects had been identified, that line of investigation had not been pursued\u201d (see paragraph\u00a046 above).<\/p>\n 88. In this connection, the Court reiterates that failing to follow an obvious line of inquiry undermines to a decisive extent an investigation\u2019s ability to establish the circumstances of a case and, where appropriate, the identity of those responsible (see Kolevi v. Bulgaria, no.\u00a01108\/02, \u00a7 201, 5\u00a0November 2009). It considers that, in the present case, the authorities\u2019 failure to adequately examine all the above-mentioned circumstances undermined the thoroughness of the pre-trial investigation.<\/p>\n 89. The Court also reiterates that in so far as an investigation leads to charges being brought before the national courts, the procedural obligations under Article 2 of the Convention extend to the trial stage of the proceedings. In such cases, the proceedings as a whole, including the trial stage, must satisfy the requirements of this provision of the Convention (see Sarbyanova-Pashaliyska and Pashaliyska v. Bulgaria, no. 3524\/14, \u00a7 38, 12\u00a0January 2017, and the cases cited therein). The Court notes that, in the present case, the proceedings before the Klaip\u0117da Regional Court lasted almost two years, during which time only eight hearings were held and four were adjourned for reasons not attributable to the applicant (see paragraph\u00a044 above). Similarly, the proceedings before the Court of Appeal lasted slightly more than two years, during which time only five hearings were held and two were adjourned for reasons not attributable to the applicant (see paragraph\u00a052 above). Although acknowledging the complexity of the present case, the Court finds that the length of the court proceedings was excessive and not justified by any circumstances of the case.<\/p>\n 90. Lastly, the Court observes that during various stages of the domestic proceedings, prosecutors and courts indicated numerous shortcomings in the pre-trial investigation (see paragraphs 15, 21, 25, 32, 33, 37, 38, 39, 45-48 and 53-57 above). It notes, in particular, the conclusions adopted by the Prosecutor General\u2019s Office after disciplinary proceedings instituted following the applicant\u2019s complaint. The Prosecutor General found that the prosecutors in charge of the investigation had not taken all available measures to investigate the criminal offence within the shortest possible time; that because of the inappropriate and insufficient investigation during the initial stages, a great deal of important data of potential evidentiary value had been lost; that some of the reports in the case file were \u201cuninformative and formalistic\u201d; and that the length of the pre-trial investigation had been excessive. In the view of the Prosecutor General, all the shortcomings made it doubtful whether an appropriate and objective investigation of M.K.\u2019s murder was possible at all (see paragraphs 38 and 39 above; see also Antonov v. Ukraine, no. 28096\/04, \u00a7 50, 3 November 2011). In the light of that conclusion, the Court is unable to give much weight to the Government\u2019s argument that the pre-trial investigation is officially still ongoing (see paragraphs 59 and 60 above; see also Angelova and Iliev v.\u00a0Bulgaria, no. 55523\/00, \u00a7 103, 26 July 2007).<\/p>\n 91. Accordingly, the Court concludes that the investigation into the applicant\u2019s brother\u2019s death was not sufficiently thorough \u2013 it was marred by the authorities\u2019 failures to obtain and secure relevant evidence, was excessively long, and contained numerous unjustified periods of inactivity. As a result, more than thirteen years after the applicant\u2019s brother\u2019s death, the circumstances of his death have still not been fully established.<\/p>\n 92. There has therefore been a violation of Article\u00a02 of the Convention under its procedural head.<\/p>\n II. APPLICATION OF ARTICLE\u00a041 OF THE CONVENTION<\/p>\n 93. Article\u00a041 of the Convention provides:<\/p>\n \u201cIf the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.\u201d<\/p>\n A. Damage<\/strong><\/p>\n 94. The applicant claimed 2,650 euros (EUR) in respect of pecuniary damage, an amount consisting of M.K.\u2019s funeral expenses. She also claimed EUR\u00a010,000 in respect of non-pecuniary damage for the suffering and inconvenience caused by the authorities\u2019 failure to adequately investigate her brother\u2019s death.<\/p>\n 95. The Government did not challenge the applicant\u2019s claim in respect of pecuniary damage. However, they considered her claim in respect of non\u2011pecuniary damage excessive and unsubstantiated.<\/p>\n 96. The Court does not discern any causal link between the violation of the procedural limb of Article 2 of the Convention found in the present case and the pecuniary damage alleged by the applicant; it therefore rejects this claim.<\/p>\n 97. However, the Court acknowledges that the applicant must have suffered emotional distress and inconvenience because of the violation found. It therefore awards the applicant EUR 10,000 in respect of non\u2011pecuniary damage.<\/p>\n B. Costs and expenses<\/strong><\/p>\n 98. The applicant also claimed the following amounts for costs and expenses:<\/p>\n – EUR 2,685 for the costs and expenses incurred before the domestic courts, an amount consisting of EUR 1,815 for legal fees paid by the applicant and EUR 870 for legal fees paid by her sister, her mother and her mother\u2019s partner;<\/p>\n – EUR 1,590 for the costs and expenses incurred before the Court, an amount consisting of EUR 1,500 for legal fees and EUR 90 for the translation of documents from English to Lithuanian.<\/p>\n 99. The Government did not dispute the claim for costs and expenses in respect of the proceedings before the Court. However, they argued that the applicant had failed to properly substantiate the costs and expenses allegedly incurred before the domestic courts.<\/p>\n 100. According to the Court\u2019s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court will uphold claims for costs and expenses only in so far as they are related to the violations it has found, and will reject them in so far as they relate to complaints that have not led to the finding of a violation, or to complaints declared inadmissible.<\/p>\n 101. In the present case, the Court does not see any grounds to award the costs and expenses which were incurred by the applicant\u2019s relatives in the proceedings before the domestic courts; it therefore rejects that part of the claim. It further observes that the applicant did not justify why translation from English to Lithuanian had been necessary, and rejects the part of the claim concerning translation costs (see Fridman v. Lithuania, no.\u00a040947\/11, \u00a7\u00a040, 24 January 2017, and Ko\u017eemiakina v. Lithuania, no. 231\/15, \u00a7 65, 2\u00a0October 2018).<\/p>\n 102. As to the remainder of the claim for costs and expenses, the Court considers it to be properly substantiated and reasonable as to quantum. It therefore awards the applicant EUR 3,315 under this head.<\/p>\n C. Default interest<\/strong><\/p>\n 103. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1. Declares the application admissible;<\/p>\n 2. Holds that there has been a violation of Article 2 of the Convention under its procedural head;<\/p>\n 3. Holds<\/p>\n (a) that the respondent State is to pay the applicant, within three months, the following amounts:<\/p>\n (i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n (ii) EUR 3,315 (three thousand three hundred and fifteen euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;<\/p>\n (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n 4. Dismisses the remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 1 October 2019, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Hasan Bak\u0131rc\u0131 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 Valeriu Gri\u0163co
\nValeriu Gri\u0163co, President,
\nEgidijus K\u016bris,
\nDarian Pavli, judges,
\nand Hasan Bak\u0131rc\u0131, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0President<\/p>\n