BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF LEONIDIS v. GREECE
(Application
no. 43326/05)
JUDGMENT
STRASBOURG
8
January 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Leonidis v. Greece,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Christos Rozakis,
Khanlar
Hajiyev,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 4 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 43326/05) against the Hellenic
Republic lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Greek national, Mr Grigorios Leonidis (“the
applicant”), on 23 November 2005.
- The
applicant was represented by the Greek Helsinki Monitor. The Greek
Government (“the Government”) were represented by
their Agent's delegates, Mr K. Georgiadis, Adviser at the
State Legal Council, and Mr I. Bakopoulos, Legal Assistant
at the State Legal Council.
- The
applicant contended that his son had been killed in circumstances in
which resort to lethal force was not justified. He also complained
that the authorities had failed to carry out an adequate, effective
and prompt investigation into the incident.
- On
14 September 2007 the Court decided to give notice of the application
to the Government. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, Mr Grigorios Leonidis, is a Greek national of
Russian-Pontic origin who was born in 1952 and lives in Thessaloniki.
A. Circumstances surrounding the death of Nikolaos
Leonidis as established by the domestic courts
- In
the early hours of 25 March 2000 the applicant's 18 year-old son,
Nikolaos Leonidis, and two of his friends were in a district of the
old town of Thessaloniki.
- Plainclothes
police officers G.A. and C.T., serving in the Ano Poli police
station, were out on patrol duty in an unmarked police vehicle when
they noticed the three young men on the street. The three men were
not committing any offence, but G.A. noticed in his car mirror that
one of them turned to look at the police car as it passed. Since
several burglaries had been recently reported in that area, he
decided to carry out an identity check. However, as he drove back
towards them, the three men ran away.
- The
two police officers got out of the car and ran after them. The chase
apparently continued for a minute. The three young men split up and
ran off in different directions.
- G.A.
ran after Nikolaos Leonidis. As he approached him, Nikolaos Leonidis
put his hand inside his jacket. Suspecting that the latter might take
out a weapon, G.A pulled out his own service revolver, a 357 magnum
Smith and Wesson, which had no safety catch and was loaded. Holding
the revolver in his right hand, with his finger on the trigger, he
ordered Nikolaos Leonidis to stop. After running a few metres,
Nikolaos Leonidis tired of the chase, lost his balance and tripped.
That allowed G.A. to catch hold of him with his left hand. G.A. then
pushed him against a car and immobilised him by forcing him to raise
his hands and place them on the car roof while he was pointing his
gun towards the sky.
- Then,
with his left hand G.A. twisted the young man's left wrist behind his
back in order to handcuff him. At that point Nikolaos Leonidis jabbed
him with his right elbow in the right side, causing him sharp pain.
Reacting to the pain, G.A. bent forward, and while he was drawing
himself back up, his revolver went off, firing a single shot in the
lower part of Nikolaos Leonidis' right ear, instantly killing him.
- C.T.,
who had in the meantime arrived close to the two men, was five metres
away from the scene and partially witnessed the incident. From where
he was standing, he was not able to see the shooting.
B. Criminal investigation into the killing
- A
few hours after the fatal shot police officers from the Ano Poli
police station conducted a preliminary inquiry (προανάκριση)
into the event. The police officers inspected the area and drafted an
inspection report as well as a sketch plan. In addition, they took a
statement from C.T. A few hours later, a crime scene reconstruction
was conducted in the presence of the Public Prosecutor and a report
was drawn up in this respect.
- On
the same day a forensic post-mortem examination was performed
by a forensic medicine expert from the University of Thessaloniki.
The doctor indicated that the cause of death was a fracture of the
cranium due to a gunshot wound and that the shot had been fired
either at point-blank range or from a few centimetres distance.
According to the report, the exact range was to be established after
further examination in the criminal police laboratory.
- The
forensic medicine expert also examined G.A. According to the report,
G.A. was diagnosed with “a contusion in the right hemithorax”.
- On
the same day, at around 1 p.m., the applicant was informed of the
incident.
- The
following day, the Public Prosecutor of Thessaloniki instituted
criminal proceedings against G.A. for wilful homicide, exceeding the
limits of self-defence and unauthorised use of weapons. The applicant
joined the proceedings as a civil party, claiming a specific amount
by way of damages.
- On
the same day G.A. gave his statement before the investigating judge
and he was set free after he had given a bank guarantee of EUR 1,467.
- On
5 April 2000 the applicant gave a statement and asked the
investigating judge to examine in detail the amount of pressure that
needs to be put on the trigger in order to release the hammer and
fire the gun as well as whether the use of the gun had been
absolutely necessary after the victim's arrest.
- On
24 May 2000 the criminal police laboratory published the report on
the range at which the bullet had been fired. According to the two
experts, the sample of skin taken from the victim was too small to
establish the exact range.
- On
19 June 2000 the ballistic examination of the weapon was conducted.
The report indicated that only one cartridge had been fired from
G.A.'s weapon.
C. Criminal proceedings against police officer G.A.
- Following
the preliminary inquiry the case was referred to the Indictment
Division of the Thessaloniki Criminal Court of First Instance, which
on 29 March 2001 decided not to press charges against G.A.,
considering that Nikolaos Leonidis' death had resulted from his
sudden and violent assault on G.A. and the accidental discharge of
the latter's revolver that was its consequence (decision
no. 513/2001).
- On
3 April 2001 the applicant lodged an appeal. On 18 June 2001 the
Indictment Division of the Thessaloniki Court of Appeal confirmed the
dismissal of charges against G.A. (decision no. 895/2001). It stated,
inter alia, that:
“The
blow surprised the defendant, his body first bent forward and then
backwards to the left, because of the pain and the surprise he felt,
and his weapon, which was a revolver and did not have a safety catch,
went off.
(...) [Nikolaos Leonidis's death] was not the result of
the defendant's reckless behaviour, but of the victim's violent and
sudden assault and the discharge of the latter's revolver that was
its consequence. There is nothing to show that [G.A.], given the
circumstances and his knowledge and abilities, could have foreseen
and avoided the death of the victim.”
- On
9 July 2001 the applicant appealed to the Court of Cassation.
- On
11 April 2003 the Court of Cassation overturned the decision appealed
against and remitted the case to the Indictment Division of the
Thessaloniki Court of Appeal for reconsideration (decision no.
1013/2003). It held that the reasoning given in the decision appealed
against was ambiguous, contradictory and insufficient. In particular,
it did not indicate how the trigger had been squeezed, although it
implied that the discharge was connected to the victim's violent
movement. Furthermore, it did not make references to the forensic
ballistics report.
- On
20 June 2003 the Indictment Division of the Thessaloniki Court of
Appeal overturned the dismissal of charges and committed the
defendant for trial before the Katerini Assize Court. It stated,
inter alia, that the victim had already been immobilised at the
time he was shot and did not pose a threat to the defendant (decision
no. 872/2003).
- On
28 August 2003 the defendant appealed to the Court of Cassation.
- On
23 December 2004 the Court of Cassation dismissed the defendant's
appeal (decision no. 2396/2004).
- On
21 June 2005 the hearing before the Katerini Assize Court took place.
The Katerini Assize Court heard evidence from the applicant, two
other relatives of the victim, police officer C.T. and two other
police officers, as well as from the defendant.
- The
Katerini Assize Court also heard statements from two experts the
defendant had asked to be called. The first expert, a forensic
medicine expert, who had read the post mortem examination,
reached a conclusion supporting the defendant's view. The second
expert was a mathematician who put forward a theory on the trajectory
of the bullet in support of the defendant's view. The court also read
out various documents, such as the results of the post mortem
examination of the deceased, forensic medical reports, autopsy
reports, photos and the crime scene reconstruction report.
- On
the same day the Katerini Assize Court published its judgment
acquitting the defendant by four votes to three (judgment no.
47/2005). On the basis of the case-file and the evidence submitted
the majority held in particular that:
“... the violent blow surprised the defendant, who
felt pain and bent forward and then backwards to the left and his
muscles were “contracted” because of the pain that the
violent and unexpected hit had caused him (...),
... because of his reflex action the defendant
involuntarily squeezed the trigger of his revolver, which was not
equipped with a safety catch, and a bullet was fired (...)
... It is apparent that the defendant had not intended
to kill the victim, as charged, since: 1) the gun went off against
his will and it was the result of the involuntary reflex action of
the muscles of his right arm as a response to the sudden and intense
blow that he had received from the victim; 2) he did not know the
victim and he had no reason to hurt him, let alone to kill him; 3) if
he had really wanted to kill Nikolaos Leonidis ..., he would have
shot him during the chase and before his arrest; in any event there
was no longer any reason to shoot him since he had already
immobilised and arrested him ...; 4) only one bullet was fired from
the gun ...; 5) from the trajectory of the bullet [according to the
report of the mathematical expert], it appears that the hand that had
fired the gun had not been steady ...; furthermore, it does not
appear from the evidence that the defendant shot the victim in cold
blood ... or that he acted in self-defence, since no attack was
launched by the victim, who had already been immobilised ...”
- Furthermore,
the Katerini Assize Court examined the facts complained of under the
provisions concerning reckless homicide. It concluded that:
“... on the night of 25 March 2000 [G.A.] carried
out his duties in the most impeccable way possible. He pursued the
deceased with professional consciousness, he did not fire his gun
during the pursuit, although another in his place might have done so,
and, most importantly, he arrested and immobilised the deceased
holding his revolver in his right arm and pointing it to the sky, in
order to avoid accidents... What followed, i.e. the death of Nikolaos
Leonidis, was not the result of an intentional act of the defendant
or the latter's reckless behaviour, but of the victim's violent and
sudden assault that caused the reflex action of the defendant ... and
the discharge of the revolver that the latter was holding in his
right hand. The reflex action of the defendant was an instantaneous
reaction of the nervous system, an automatic contraction of the body
muscles (including those of the right arm) out of the defendant's
control, as a response to the pain suffered from the violent and
sudden blow; since this contraction was not a voluntary action, it
cannot be considered an actus reus and hence he [the
defendant] cannot be considered criminally liable...
- The
Katerini Assize Court reached the same conclusion as far as the
charge of unauthorised use of weapons was concerned. In particular,
it held:
“Consequently, since neither the death of the
victim nor the use of the defendant's gun can be considered as “acts”
in the legal sense of the term, the objective element of the crimes
that the defendant is being accused of has not been established and
he should be declared innocent.”
- Two
of the minority judges, including the President of the Katerini
Assize Court, considered that the defendant should have been declared
guilty of reckless homicide and unauthorised use of weapons. They
based their reasoning on the way revolvers function:
“... There is a slight time delay of 1 to 1.5
seconds between the moment the trigger is pulled and the moment the
gun fires. This is the time the hammer needs to be cocked and
released; the time the hammer needs to be cocked corresponds to the
time the cylinder needs to rotate clockwise. When the hammer has
already been cocked, it needs less pressure on the trigger to release
the hammer and fire the gun. On the contrary, when the gun is in a
hammer-down position, it needs more pressure on the trigger and more
time to fire the gun, since in this case, the trigger first cocks the
hammer (thus advancing the cylinder) and then releases the hammer at
the rear of its travel, firing the round in the chamber. In the
present case, it appears from the testimonies ... that ... with his
left hand [G.A.] twisted the young man's left wrist behind his back
in order to handcuff him, while with his right hand he was holding
the revolver, obviously with the hammer cocked, pressing against the
victim's right scapula. ... [Leonidis's death] resulted from the
defendant's negligent conduct, since: 1) he should not have cocked
the hammer of his gun, since in that case the trigger needs less
pressure to fire the gun; 2) he should not have had his finger on the
trigger but on its protective frame; 3) he should not have been
pressing the gun against the victim's scapula while he had his finger
on the trigger and the hammer cocked. If the gun had been in a
hammer-down position, even if the defendant had had his finger on the
trigger, it would have been more difficult for the gun to go off,
since it required more pressure on the trigger. ... the defendant had
no intention to kill the victim ... he should have been declared
guilty of reckless homicide and unauthorised use of weapons.”
- On
7 November 2005 the applicant, who did not have the right to appeal
in cassation under domestic law, asked the Public Prosecutor to bring
the case before the Court of Cassation. On 14 November 2005 the
Prosecutor dismissed his request.
D. Administrative investigation into the incident
- Shortly
after the shooting, G.A. was declared free of duty for two days and
he was later granted sick leave for a total period of 52 days. On
17 May 2000 he resumed his duties in Ano Poli. On 3 July 2000 he
was transferred to an administrative post in the Thessaloniki General
Police Directorate.
- In
the meantime, on 27 March 2000, two days after the fatal incident,
the Thessaloniki police headquarters launched a Sworn Administrative
Inquiry (Ενορκη
Διοικητική
Εξέταση,
– SAI) in order to ascertain the exact circumstances in
which Nikolaos Leonidis's death had occurred and whether police
officer G.A was guilty of any disciplinary offence. That
investigation was assigned to an officer of the police department
dealing with administrative investigations.
- On
3 April 2001 the report on the findings of the SAI was issued.
According to the report, the death of Nikolaos Leonidis was not the
result of the police officer's reckless behaviour, but of the
victim's violent and sudden assault and the discharge of the latter's
revolver that was its consequence. The report concluded that, given
the circumstances of the case, it was advisable not to institute
disciplinary proceedings against G.A. In accordance with this
recommendation, no disciplinary proceedings were instituted.
E. Civil proceedings before the administrative courts
- In
the meantime, while the case was pending before the penal courts, on
29 November 2002 the applicant brought an action against the State
under section 105 of the Law introducing the Civil Code seeking
compensation for damage sustained as a result of an unlawful act by a
public authority, namely, his son's killing by police officer G.A.
- On
31 January 2005, approximately five months prior to G.A.'s acquittal
by the Katerini Assize Court, the Thessaloniki Administrative Court
of First Instance allowed the applicant's claims in part (judgment
no. 148/2005). It held inter alia:
“... The grounds set forth in Article 133 of
Presidential Decree no. 141/1991, which authorises the use of
firearms, do not apply under the circumstances of the present case,
since [G.A.] had not been attacked by the victim ... nor was he
acting in self-defence... The
use of the firearm by the police officer in order to arrest the
deceased was unlawful and resulted in the young man's death. ... The
police officer's outline of events, according to which the firing was
provoked by a 'reflex action' following the blow he had received from
the victim – in the sense that he involuntarily pulled the
trigger – cannot be accepted, because it is in contradiction
with his own statement concerning an 'unconscious instinctive
reaction caused by the violent blow he had received'. In fact, that
means that pulling the trigger was an instinctive reaction to the
victim's behaviour, which implies that [G.A.] acted without using his
reason and without showing the prudence and discipline expected from
a police officer with ten years of experience. ... thus, police
officer G.A is 70 % responsible for Nikolaos Leonidis's death since
he used his firearm in violation of the applicable law...”
40. On
15 April 2005 the State appealed to the Thessaloniki Administrative
Court of Appeal challenging the implementation of the substantive law
and the assessment of the evidence. It referred subsequently, in a
separate memorandum, that G.A. had been acquitted by the Katerini
Assize Court on 21 June 2005.
- On
19 May 2007 the Thessaloniki
Administrative Court of Appeal rejected the appeal and awarded the
applicant EUR 80,000 EUR for non-pecuniary damage (judgment
no. 432/2007), considering inter
alia:
“Even
supposing that the use of the firearm by the police officer in order
to arrest the deceased was not in breach of a specific provision,
nevertheless it constituted unlawful conduct, since he failed to take
those steps that are appropriate to his duties, that result from the
relevant legislation, from common sense, from his scientific and
professional education and experience and from the notion of good
faith and aim at the protection of individual freedoms, namely the
right to life and limb. Consequently, the appellant is
responsible...”
II. RELEVANT DOMESTIC LAW AND PRACTICE
- At
the material time, the use of firearms by law-enforcement officials
was regulated by Law no. 29/1943, which was enacted on 30 April 1943
when Greece was under German occupation. Section 1 of that statute
listed a wide range of situations in which a police officer could use
firearms (for example in order “to enforce the laws, decrees
and decisions of the relevant authorities or to disperse public
gatherings or suppress mutinies”), without being liable for the
consequences. These provisions were modified by Article 133 of
Presidential Decree no. 141/1991, which authorises the use of
firearms in the situations set forth in Law no. 29/1943 “only
when absolutely necessary and when all less extreme methods have been
exhausted”. Law no. 29/1943 was criticised as “defective”
and “vague” by the Public Prosecutor of the Supreme Court
(see Opinion no. 12/1992). Senior Greek police officers and trade
unions have called for this legislation to be updated. In a letter to
the Minister of Public Order dated April 2001, the National
Commission for Human Rights (NCHR), an advisory body to the
government, expressed the view that new legislation which would
incorporate relevant international human rights law and guidelines
was imperative (NCHR, 2001 Report, pp. 107-15). In February 2002 the
Minister of Public Order announced that a new law would shortly be
enacted, which would “safeguard citizens against the reckless
use of police weapons, but also safeguard police officers who will be
better informed as to when they can use them”.
- On
24 July 2003 Law no. 3169/2003, which is entitled “Carrying and
use of firearms by police officers, training of police officers in
the use of firearms and other provisions”, came into force. Law
no. 29/1943 was repealed (section 8). Further, in April 2004, the
“Pocket Book on Human Rights for the Police”, which was
prepared by the United Nations Centre for Human Rights, was
translated into Greek with a view to its being distributed to Greek
policemen.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 2 AND 6 OF THE
CONVENTION
- Relying
on Articles 2 and 6 of the Convention, the applicant alleged that the
police officer seeking to arrest his son had used excessive firepower
which resulted in his death and complained that no effective inquiry
had been conducted into the event that could lead to the punishment
of the perpetrator.
- The
Court considers that the aforementioned complaints, as formulated by
the applicant, only fall under the scope of Article 2 of the
Convention and therefore should be examined from the standpoint of
this provision, which reads as follows:
“1. Everyone's right to life shall be
protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”
A. Admissibility
- The Court notes that the applicant brought civil
proceedings against the State in respect of his son's killing by
police officer G.A and was successful in these proceedings, being
awarded and receiving compensation for the non-pecuniary damage he
had sustained in that respect (see paragraphs 38-41 above). However,
the Court recalls that in cases of wilful ill-treatment or unlawful
use of force resulting in death, the Court considers that the breach
of Article 2 cannot be remedied exclusively through an award of
compensation to the relatives of the victim. As it was pointed out in
the Nikolova and Velichkova case, this is so because, if the
authorities could confine their reaction to incidents of wilful
police ill-treatment to the mere payment of compensation, while not
doing enough in the prosecution and punishment of those responsible,
it would be possible in some cases for agents of the State to abuse
the rights of those within their control with virtual impunity and
the general legal prohibitions of killing and torture and inhuman and
degrading treatment, despite their fundamental importance, would be
ineffective in practice. (see, Nikolova and Velichkova
v. Bulgaria, no. 7888/03, § 55, 20 December 2007).
- Therefore, the possibility of seeking and receiving
compensation represents, in these cases, only one part of the
measures necessary to provide redress for the alleged violations. The
Court must, then, also examine the effectiveness of the criminal
proceedings against the police officer in order to ascertain whether
the applicant was afforded appropriate redress (Nikolova and
Velichkova, cited above, § 56).
- In
these circumstances, the Court considers that the applicant may still
claim to be a victim within the meaning of Article 34 of the
Convention (see, mutatis mutandis, Krastanov v. Bulgaria,
no. 50222/99, § 48, 30 September 2004).
- Furthermore,
the Court notes that the application is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention or
inadmissible on any other grounds.
B. Merits
1. The submissions of the parties
- The
applicant submitted that his son's death was the result of the
unnecessary and disproportionate use of force by the police officer
involved in the incident. Relying on previous case-law (Makaratzis
v. Greece, Celniku v. Greece, and Karagiannopoulos v.
Greece) he complained that the legislation on the use of weapons
by agents of the State was obsolete and inadequate. The applicant
also complained about the failure of investigating and prosecuting
authorities to proceed with a prompt, independent, comprehensive and
effective official investigation into his son's death.
- The
Government pointed out that, as it had been established by the
domestic courts, police officer G.A. was trying to carry out a lawful
arrest and did not deliberately shoot the applicant's son. The
latter's unfortunate death had been the result of his own violent and
sudden assault on the police officer that had caused the discharge of
the revolver. According to the Government, G.A. had tried to minimise
any risk and preserve the applicant's son's life. That was clearly
demonstrated by the fact that the police officer was pointing his gun
towards the sky. There had been no element of negligence or oversight
in the way in which the operation was conducted.
- The
Government claimed that immediately after the incident a preliminary
investigation had been launched and charges mandatorily brought
against G.A. According to the Government, the investigation had been
prompt and effective. In particular, the authorities had showed
initiative and had produced medical, forensic and ballistic reports
within a short period of time. In addition, the
administrative inquiry into the incident had been independent, since
it had been assigned to an officer of the police department
dealing with administrative investigations. It concluded that both
inquiries took into account the different elements produced and
satisfied the requirements of Article 2 of the Convention.
2. The Court's assessment
a. Whether the death of the applicant's
son amounted to a breach of the substantive requirements of Article 2
of the Convention
i. General principles
- The
Court reiterates that Article 2, which safeguards the right to life,
ranks as one of the most fundamental provisions in the Convention and
enshrines one of the basic values of the democratic societies making
up the Council of Europe. The Court must subject allegations of
breach of this provision to the most careful scrutiny. In cases
concerning the use of force by State agents, it must take into
consideration not only the actions of the agents of the State who
actually administered the force but also all the surrounding
circumstances including such matters as the relevant legal or
regulatory framework in place and the planning and control of the
actions under examination (see McCann and Others v. the United
Kingdom, 27 September 1995, §§ 146-147, Series A
no. 324; Makaratzis v. Greece [GC], no. 50385/99, §§
57-59, ECHR 2004-XI; and Nachova and Others v. Bulgaria
[GC], nos. 43577/98 and 43579/98, § 93, ECHR 2005-VII).
- As
the text of Article 2 § 2 itself shows, the use of lethal force
by State security forces may be justified in certain circumstances.
However, any use of force must be no more than “absolutely
necessary”, that is to say it must be strictly proportionate in
the circumstances. In view of the fundamental nature of the right to
life, the circumstances in which deprivation of life may be justified
must be strictly construed (see Andronicou and Constantinou v.
Cyprus, 9 October 1997, §§ 171, 181, 186, 192, and 193,
Reports 1997-VI and McKerr v. the United Kingdom,
no. 28883/95, §§ 108 et seq., ECHR 2001-III).
- Accordingly,
the legitimate aim of effecting a lawful arrest can only justify
putting human life at risk in circumstances of absolute necessity.
The Court considers that in principle there can be no such necessity
where it is known that the person to be arrested poses no threat to
life or limb and is not suspected of having committed a violent
offence, even if refraining from using lethal force may result in the
opportunity to arrest the fugitive being lost (see Makaratzis,
cited above, §§ 64-66).
- In
addition to setting out the circumstances when deprivation of life
may be justified, Article 2 implies a primary duty on the State to
secure the right to life by putting in place an appropriate legal and
administrative framework defining the limited circumstances in which
law-enforcement officials may use force and firearms, in the light of
the relevant international standards (see Celniku v. Greece,
no. 21449/04, § 47, 5 July 2007 and Karagiannopoulos
v. Greece, no. 27850/03, §§ 53-54, 21 June
2007).
- Furthermore,
law-enforcement agents must be trained to assess whether or not there
is an absolute necessity to use firearms not only on the basis of the
letter of the relevant regulations but also with due regard to the
pre-eminence of respect for human life as a fundamental value (see
McCann and Others, cited above, pp. 61-62, §§
211-214; and Nachova and Others, cited above, § 97).
ii. Application of the above principles to
the present case
- In
the present case, the Court notes firstly that it is undisputed
between the parties that Nikolaos Leonidis was killed in the course
of a spontaneous police operation by police officer G.A. The Court
observes that a judicial determination of the facts took place in the
criminal proceedings brought against the police officer. Even though
certain facts remain unclear, the Court considers, in the light of
all the material produced before it, that there is a sufficient
factual and evidentiary basis on which to assess the case, taking as
a starting point the findings of the national courts (see Makaratzis
v. Greece [GC], no. 50385/99, § 47, ECHR 2004-XI; and Perk
and Others v. Turkey, no. 50739/99, § 57, 28 March 2006).
- According
to the findings of the domestic courts, the fatal shot was triggered
not by any deliberate action on the part of police officer G.A. but
by the sudden reaction of the victim. Though the Court is not bound
by the findings of domestic courts, in normal circumstances cogent
elements are required for it to depart from the findings of fact
reached by those courts (see Klaas, cited above, p. 18, §
30). In the present case and in view of the material provided, the
Court sees no reason to question the fact as established by the Greek
courts. Therefore, the Court takes the view that Nikolaos Leonidis's
death was not the result of a deliberate action.
- Nevertheless,
in the light of the foregoing, the Court will have to determine
whether the way in which the police operation was conducted showed
that the police officer had taken appropriate care to ensure that any
risk to the life of the applicant's son was kept to a minimum.
- In
carrying out its assessment of the planning and control phase of the
operation from the standpoint of Article 2 of the Convention, the
Court must have particular regard to the context in which the
incident occurred as well as to the way in which the situation
developed (see Andronicou and Constantinou v. Cyprus, cited
above, § 182).
- The
Court finds it established that the operation in question was a
spontaneous chase decided on the spot by the two police officers and
it was mounted with the aim of carrying out an identity check on the
applicant's son and his friends. The latter were neither committing
any offence nor being violent nor aggressive. In the Court's view,
the mere fact that the applicant's son ran away when the two
policemen approached him does not imply that he did so because he had
committed an illegal act. This is even more so in the present case
where it might not have been initially obvious to him that the two
men were policemen. In this connexion, the Court recalls that the two
policemen were in plain clothes and were in an unmarked vehicle.
- The
Court does not find it necessary, however, to establish whether there
was initially a need to pull out a weapon during the chase, since it
cannot substitute its own assessment of the situation for that of an
officer who was required to react in the heat of the moment to avert
an honestly perceived danger to his life (see Huohvanainen v.
Finland, no. 57389/00, § 97, 13 March
2007). However, the Court considers that after he had
immobilised the applicant's son, police officer G.A. had no reason to
keep hold of his weapon, especially with his finger on the trigger.
In fact, in the Court's view, the police officer should have put his
weapon in its holster before handcuffing Nikolaos Leonidis who was
not holding a weapon and was not in any way threatening the police
officer's life or limb.
- In
this respect, the Court attaches particular importance to the views
expressed by the minority judges of the Katerini Assize Court as to
the negligent use of the weapon according to which the gun should not
have been cocked, since in that case it needs less pressure on the
trigger to fire the gun. In addition, the Court finds no reason to
question the findings of the administrative courts which examined the
applicant's civil claims and concluded that the use of the firearm by
the police officer in order to arrest the deceased had been unlawful
and that he had not shown the prudence and discipline expected from a
police officer of his experience.
- The
Court is also mindful of the fact that at the relevant time the use
of weapons by agents of the State was governed by legislation which
was recognised to be obsolete and inadequate in a modern democratic
society. The Court recalls that it has already held that the system
in operation did not provide those responsible for applying the laws
with clear guidelines and criteria concerning the use of force in
peacetime (see Makaratzis, cited above, § 62, Celniku
v. Greece, cited above, § 51 and Karagiannopoulos
v. Greece, cited above, § 63). The lack of clear rules
might also explain why G.A. acted rather irresponsibly, which he
would probably not have done had he received the proper training.
- In
the light of the above, the Court considers that, as far as its
obligation under the first sentence of Article 2 § 1 to avoid
real and immediate risk to life in hot-pursuit police operations, the
respondent State had not, at the relevant time, done all that could
be reasonably expected of it (see, mutatis mutandis,
Makaratzis v. Greece [GC], cited above, § 71).
Accordingly,
there has been a violation of Article 2.
b. Whether the investigation into the
incident was adequate and effective, as required by Article 2 of the
Convention
i. General principles
- The
obligation to protect the right to life under Article 2 of the
Convention, read in conjunction with the State's general duty under
Article 1 of the Convention to “secure to everyone within
[its] jurisdiction the rights and freedoms defined in [the]
Convention”, requires by implication that there should be some
form of effective official investigation when individuals have been
killed as a result of the use of force (see Çakıcı
v. Turkey [GC], no. 23657/94, § 86, ECHR 1999-IV). The
essential purpose of such an investigation is to secure the effective
implementation of the domestic laws safeguarding the right to life
and, in those cases involving State agents or bodies, to ensure their
accountability for deaths occurring under their responsibility (see
Anguelova v. Bulgaria, no. 38361/97, § 137, ECHR
2002-IV). Since the true circumstances of the death in such cases are
often, in practice, largely confined within the knowledge of State
officials or authorities, the bringing of appropriate domestic
proceedings, such as a criminal prosecution, disciplinary proceedings
and proceedings for the exercise of remedies available to victims and
their families, will be conditioned by an adequate official
investigation, which must be independent and impartial (see
Makaratzis, cited above, § 73).
- The
investigation must be capable, firstly, of ascertaining the
circumstances in which the incident took place and, secondly, of
leading to the identification and punishment of those responsible.
This is not an obligation of result, but of means. The authorities
must have taken the reasonable steps available to them to secure the
evidence concerning the incident, including, inter alia, eyewitness
testimony and forensic evidence. A requirement of promptness and
reasonable expedition is implicit in this context. Any deficiency in
the investigation which undermines its capability of establishing the
circumstances of the case or the person responsible is liable to fall
foul of the required standard of effectiveness (see Kelly and
Others v. the United Kingdom, no. 30054/96, §§ 96-97, 4
May 2001).
ii. Application of the above principles to
the present case
- In
the present case the Court recalls that three separate sets of
proceedings were conducted in order to establish the facts of the
case, to identify those responsible and, if appropriate, secure the
punishment of those concerned. The criminal investigation was
conducted immediately and in the presence of the Public Prosecutor.
Statements were taken by the latter from G.A. and C.T. A forensic
post mortem examination was performed as well as a medical
examination of G.A. On the basis of these preliminary steps, the
Public Prosecutor decided the following day to institute criminal
proceedings against G.A. for, inter alia, wilful homicide. The
ensuing investigation was carried out by an investigating judge.
Laboratory and ballistics reports were obtained in May and June 2000.
- Parallel
to the above criminal investigation the Thessaloniki police
headquarters launched, on 27 March 2000, a Sworn Administrative
Inquiry and assigned the investigation to a police officer from a
different department. A report was concluded on 3 April 2001.
- The
police officer G.A. was brought to trial before the Katerini Assize
Court which eventually acquitted him on 21 June 2005, on the grounds
that no criminal offence had been committed. The Court has found no
evidence in the present case which would indicate that the Assize
Court's findings were reached other than on the basis of the
assessment of the evidence produced. Furthermore, nothing suggests
that the acquittal was caused by an investigation or evidence which
the domestic courts found to be incomplete for the assessment of
G.A.'s criminal liability.
- Civil
proceedings were instituted by the applicant against the State. On
the basis of the same investigative measures the State was held
liable for the death of the applicant's son by final judgment of 19
May 2007 and ordered to pay damages. Neither in these proceedings
were there reasons to consider that the findings were reached due to
an incomplete investigation.
- Having
regard to the above the Court is satisfied that the investigations
made were capable of ascertaining the circumstances of the case, to
identify those responsible and to punish where appropriate.
Furthermore, the Court has found no reason to conclude that the
investigation made was not prompt or otherwise undermined the
effectiveness of the proceedings.
- Accordingly
the Court finds that there has been no violation of Article 2 of the
Convention in respect of the respondent State's obligation to conduct
an effective investigation into the circumstances of the incident
which led to the death of the applicant's son.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If 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.”
A. Damage
- The
applicant claimed 60,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government argued that the non-pecuniary damage suffered by the
applicant for the loss of his son had been entirely covered since the
Thessaloniki Administrative Court of Appeal had awarded the applicant
EUR 80,000 for non-pecuniary damage.
- Having
regard to the above, the Court considers that the finding of a
violation of the Convention constitutes, in itself, sufficient just
satisfaction within the meaning of Article 41 of the Convention.
B. Costs and expenses
- The
applicant who declared that he was being represented by Greek
Helsinki Monitor free of charge claimed EUR 4,000 for the costs and
expenses incurred before the domestic courts and for those incurred
before the Court. In this connection he submitted a bill of costs
drawn up by a lawyer cooperating with Greek Helsinki Monitor for an
amount of EUR 4,000.
- The
Government contested the amount. It argued that the applicant had
been represented before the domestic courts by another lawyer and
that the amount claimed had not been paid by the applicant but by a
non-profit organisation.
- According
to the Court's settled case-law, costs and expenses will not be
awarded under Article 41 unless it is established that they were
actually and necessarily incurred and were also reasonable as to
quantum (see, for example, Sahin v. Germany [GC], no.
30943/96, § 105, ECHR 2003-VIII).
- In
the present case, the Court notes that the applicant was represented
free of charge by Greek Helsinki Monitor. Regard being had to this,
the Court considers it reasonable to reject the applicant's claims
under this head.
FOR THESE REASONS, THE COURT
- Declares the application admissible unanimously;
- Holds unanimously that there has been a
violation of Article 2 of the Convention on account of shortcomings
in the police operation in which the applicant's son died;
- Holds by 6 votes to 1 that there has been no
violation of Article 2 of the Convention in respect of the respondent
State's obligation to conduct an effective investigation into the
circumstances of the incident which led to the death of the
applicant's son;
- Holds by 6 votes to 1 that the finding of a
violation constitutes in itself sufficient just satisfaction;
- Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 8 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the partly dissenting opinion of
Judge Spielmann is annexed to this judgment.
N.V.
S.N.
PARTLY DISSENTING OPINION OF JUDGE SPIELMANN
(Translation)
I
voted against points 3 and 4 of the operative part for the following
reasons.
- I
do not share the majority view that there has been no violation of
Article 2 of the Convention in respect of the respondent State's
obligation to conduct an effective investigation into the
circumstances of the incident which led to the death of the
applicant's son.
- I
note that the authorities showed their willingness to conduct an
investigation into the shooting. In that connection, two separate
sets of proceedings were conducted: criminal proceedings and an
administrative inquiry. However, I am not persuaded that those
proceedings were sufficiently thorough and effective to meet the
above requirements of Article 2.
- I
also note that there were glaring omissions in the conduct of the
preliminary investigation. In particular, great importance should be
attached to the fact that the criminal police laboratory was unable
to determine the exact distance from which the bullet was fired,
because of an omission in the collection of evidence. In fact, the
sample of skin taken from the victim was not large enough, so the
experts were unable to conduct an effective examination in that
respect. Furthermore, it seems that no effort was made to identify
and question the victim's two friends who were with him that night
and might have witnessed the incident.
- I
am further struck by the fact that the ballistic report only
concerned the number of bullets fired from G.A.'s revolver and did
not mention anything about the functioning of a 357-magnum Smith and
Wesson. In particular, it bore no indication as to the pressure
needed in order to release the hammer and fire the gun, although the
applicant had expressly invited the investigating judge to examine
this issue. In this connection I regret that the question of the use
of G.A.'s revolver was considered only by minority judges on the
bench of the Katerini Assize Court.
- Moreover,
I cannot overlook the fact that during the hearing before the
Katerini Assize Court, the forensic expert who conducted the
post-mortem examination was not invited to analyse his report
and express his views on the incident. On the contrary, the court
heard evidence from another doctor who had never examined the victim,
but had only read the post-mortem examination report and had
been called by the defendant. I regret that the Katerini Assize Court
attached great importance to the statement of this expert and based
its conclusion on that and on the theory
concerning the trajectory of the bullet put forward by a
mathematician called by the defendant.
- I
further observe that the police officers who rushed to the scene of
the crime and conducted the preliminary inquiry were attached to the
Ano Poli police station, as was the officer involved in the incident,
thus calling into question the ability of the officers concerned to
conduct an independent inquiry, as it was highly likely that they
would have personally known the officer involved and might have
worked with him in the past, creating inevitable feelings of
professional solidarity. This is particularly so in the present case
where the applicant was not able to participate in the first stages
of the preliminary proceedings, namely the inspection of the area and
the crime scene reconstruction, since he was not informed of the
incident until ten hours later.
As
the Court has held previously (see Ramsahai and Others v. the
Netherlands [GC], no. 52391/99, §§ 325 and 337, ECHR
2007 ...):
“for the investigation to be 'effective' ... it
may generally be regarded as necessary for the persons responsible
for it and carrying it out to be independent from those implicated in
the events. This means not only a lack of hierarchical or
institutional connection but also a practical independence.... What
is at stake here is nothing less than public confidence in the
state's monopoly on the use of force.
...
The Court has had occasion to find a violation of
Article 2 in its procedural aspect in that an investigation into a
death in circumstances engaging the responsibility of a public
authority was carried out by direct colleagues of the persons
allegedly involved ... Supervision by another authority, however
independent, has been found not to be a sufficient safeguard for the
independence of the investigation ...”
- Lastly,
the Court has previously underlined the importance of the suspension
from duty of the agent under investigation or on trial as well as his
dismissal if he is convicted (see, mutatis mutandis,
Abdülsamet Yaman v. Turkey, no. 32446/96, § 55,
2 November 2004). In the present case, I regret that, after a short
period of 52 days during which he was granted sick leave, police
officer G.A. resumed his duties and a few months later he was
transferred to an administrative post in the headquarters of the
Thessaloniki Police Directorate.
- In
the light of the above-mentioned serious shortcomings in the
investigations, I conclude that they were not effective. It is
therefore my opinion that there has been a violation of Article 2
under its procedural aspect.
- I
also cannot share the view that the finding of a violation
constitutes in itself sufficient just satisfaction.
-
In the present case, the Court found a violation of Article 2 of the
Convention. Admittedly, the Thessaloniki Administrative Court of
Appeal had found the State responsible and had already awarded
damages. But the breach of Article 2, as found by this Court, cannot
be remedied exclusively by an award of compensation previously
granted by the domestic courts to the relatives of the victim. In my
view, the claim of non-pecuniary damage presented by the applicant
under Article 41 of the Convention is clearly distinguishable from
the claim presented before the domestic courts. In other words, I
find it contradictory to decide that the applicant can still claim to
be a victim within the meaning of Article 34 of the Convention
(paragraph 48) and then to hold that the finding of a violation of
the Convention constitutes in itself sufficient just satisfaction
within the meaning of Article 41 of the Convention.
