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 vanis hed 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 unt il 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 Eur opean 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 understandin g 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 .