FOURTH SECTION
DECISION
Application no. 26330/12
Krystyna BŁOŃSKA
against Poland
The European Court of Human Rights (Fourth Section), sitting on 1 April 2014 as a Chamber composed of:
Ineta Ziemele, President,
George Nicolaou,
Ledi Bianku,
Nona Tsotsoria,
Zdravka Kalaydjieva,
Paul Mahoney,
Krzysztof Wojtyczek, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 18 April 2012,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Krystyna Błońska, is a Polish national, who was born in 1950 and lives in Olsztyn. She was represented before the Court by Mr W. Wrzecionkowski, a lawyer practising in Olsztyn.
2. The applicant is the mother of Mr Przemysław Błoński (PB) who died on 2 December 2006.
A. The circumstances of the case
3. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Events of 19 November 2006
4. On 19 November 2006 PB met with two friends (MG and SG) in a pub in Olsztyn and later took them home in his Ford car.
5. At about 8.20 p.m. on 19 November 2006 a police patrol was informed that a Ford car was driving dangerously in a district of Olsztyn. The police patrol, comprised of officers DD and BC, moved into the area and passed the information on to another patrol. They were in an unmarked police car.
6. The unmarked police car was overtaken by a speeding Ford. The police patrol turned on the flashing lights and the siren and gave chase. Officers DD and BC gave signals to the driver of the Ford to stop but they were not respected. A second unmarked police car, with officers LL and IP, joined the chase. At some point the first police car overtook the Ford and blocked the nearest junction by parking the car sideways across the road. The Ford stopped but as officer DD tried to get out of the car the driver of the Ford suddenly accelerated and hit the back of the police car. Officer DD gave a warning “Stop police!” and ordered the driver to stay still.
7. Subsequently, the Ford reversed and the two police officers (DD and BC) got out of their car. Officer DD ran to arrest the driver of the Ford but when he was near the driver, he suddenly accelerated in reverse. In reaction, officer DD had to jump aside to avoid being hit. He found himself in front of the Ford. Officer DD held his hand on the holster and shouted to the driver to stop the engine. The driver started moving in the direction of police officer DD who jumped to the right and later towards officer BC. Officer DD, who found himself at the back of the Ford, fired three shots aiming at the left wheel of the car. The Ford drove for another 100 metres and then hit a tree.
8. PB was taken to a hospital with a gunshot wound to the back of his head. A bullet was removed from his head. On 2 December 2006 PB died in hospital.
2. Investigation into the incident
9. On 19 November 2006 the on-duty officer of the Olsztyn Police informed the Olsztyn-Południe District Prosecutor’s Office about the incident involving PB. Prosecutor JJ arrived at the scene of the incident shortly after.
10. The police secured the firearms of the police officers present during the incident and three cartridges.
11. The District Prosecutor opened an investigation into the alleged excess of authority by the police.
12. The prosecutor ordered that a forensic report be prepared. On 4 December 2006 the forensic expert submitted his report describing PB’s injuries, in particular a gunshot entry wound to the back of the head (right side). The cause of the death was acute heart failure related to the gunshot injuries of the brain.
13. The prosecutor heard PB’s mother (the applicant) and his sister. They stated that PB had been afraid of the policemen because a former officer MH had threatened him in the past. Officer DD denied having known PB. He stated that he had used the gun (aiming at the back tyre) because PB had attempted to knock him and officer BC down. Officer BC confirmed this version of events. She stated that PB had not obeyed their commands.
14. On 11 December 2006 a reconstruction of the incident was staged with officer DD. He demonstrated his position at the time of firing. The position of officer DD corresponded to the location of the cartridges found on the site of the incident.
15. The prosecutor ordered that a report by a firearm expert be prepared in order to establish, inter alia, the trajectory of the bullet removed from PB’s head. In his opinion of 9 January 2007, the firearm expert found that the bullet had been fired from officer DD’s gun. The shape of the bullet could indicate that it had ricocheted before entering PB’s body. Three cartridges found on the spot had also been fired from officer DD’s gun. Two remaining bullets had missed the car.
16. In his supplementary opinion of 19 January 2007, the firearm expert found that PB had been shot in his head by a bullet fired by officer DD, which ricocheted from the road. The findings of the firearm expert were supported by a reconstruction of the incident. In the course of the reconstruction a crack had been found in the road where the bullet had ricocheted.
17. The prosecutor also ordered a report by a car expert. The expert established that damage to the police car confirmed the version of events as presented by officers DD and BC.
18. Having regard to the above evidence, the prosecutor found that the police officers, including officer DD had acted lawfully in the pursuit of the driver of the Ford. When police officers DD and BC attempted to arrest PB, he started driving the car in their direction thus exposing them to a direct danger to their life and limb. Officer DD had fired 3 times aiming at the back wheel of the car seeing that the driver (PB) was driving towards officer BC. The prosecutor established that the version of events put forward by officers DD and BC was consistent with the findings of the experts.
19. The prosecutor established that officer DD had not exceeded his authority when firing at the car. The driver of the car had not obeyed police orders and had resisted police attempts to arrest him. He further endangered directly the life of officer BC. The use of a firearm had been justified under sections 17 § 1 (1) and 17 § 1 (6) of the Police Act. Accordingly, the prosecutor found that officer DD had used his firearm in accordance with the law (both grounds were present) and thus had not transgressed his authority.
20. On 7 February 2007 the Olsztyn-Południe District Prosecutor discontinued the investigation in the case since no crime had been committed.
21. The applicant appealed. She alleged that the district prosecutor had relied exclusively on the testimonies of officers DD and BC and had omitted to refer to testimonies of other witnesses who had given a different account of the relevant events. She also claimed that at the relevant time there had been no justification for the use of firearms in the absence of a direct danger to life.
22. On 13 July 2007 the Olsztyn District Court quashed the decision to discontinue the investigation. It found that the prosecutor had not addressed all the relevant circumstances of the case. Firstly, he had omitted to address the issue of the acquaintance between officer DD and other officers involved in the incident with a former officer MH. The latter officer had been in conflict with PB and had allegedly threatened PB. Secondly, the prosecutor had to explain why the radio communications between the police officers and the on-duty officer had not been recorded. Thirdly, it was necessary to establish the precise course of the events in view of the ambiguous testimonies of the two police officers (DD and BC) including a drawing of the movements of the cars and persons involved. Fourthly, it was necessary to establish whether the use of the firearm had been justified by a risk to the life of officer BC at the relevant time.
23. On 3 July 2007 the applicant requested the Białystok Appellate Prosecutor’s Office that all prosecutors of the Olsztyn District and Regional Prosecutor Offices be excluded from the examination of the case. The request was granted and the subsequent investigation was conducted by the Łomża District Prosecutor.
24. The prosecutor ordered that an additional opinion by a firearm expert be prepared. In his opinion of 18 October 2007, the firearm expert presented his version of the consecutive stages of the incident, accompanied by drawings, which were based on the testimony of the two officers (primarily of officer DD). The expert observed that it was likely that the car had been moving at the time of firing and for this reason the bullets had missed the wheel and ricocheted.
25. On 22 November 2007 the Łomża District Prosecutor discontinued the investigation concerning the abuse of authority by police officer DD. The prosecutor followed the instructions of the district court in respect of the additional evidence to be obtained. It was also established that PB’s blood contained 2.84 mg of alcohol per litre.
26. On the basis of the additional expert report the prosecutor established that officer DD had fired three shots aiming at the left back wheel of the Ford (at the time DD had been behind the car). The distance between him and the car was of 4 to 6 metres. He had not hit the tyres and the bullet had ricocheted. The incident took place in the evening on an unlit road. It was not possible to have regard to the communications between the police officers and the on-duty officer because the relevant recording device had been defective for a few years. The two other police officers had been too far from the site to see precisely what happened.
27. The prosecutor accepted all the expert opinions obtained in the case. The most relevant were the opinions of the firearm expert which explained the trajectory of the bullet, and the opinion prepared following the reconstruction of the incident. The analysis of the telephone traffic and of other evidence led the prosecutor to conclude that the former police officer MH had not been in any way involved in the incident.
28. Officer DD stated that he had used his firearm because the driver of the Ford had attempted to run him and officer BC over. Officer BC confirmed this version of events. With regard to certain inconsistencies in the accounts of the witnesses, the prosecutor noted that the incident had taken place in the late evening and in bad visibility. In addition, the events unfolded speedily and had been very stressful. The prosecutor found officer DD’s testimony most comprehensive. This testimony was supported by the material evidence in the case.
29. The prosecutor found that the use of the firearm by police officer DD had been justified under sections 17 § 1 (1) (illegal attempt on the life or health of a person) and 17 § 1 (6) (direct pursuit of a person posing danger to someone’s life or health) of the Police Act. In accordance with the Ordinance of the Council of Ministers of 19 July 2005 (“the 2005 Ordinance”) on the specific conditions of the use of firearms by the police no further warnings of the police were necessary in situations governed by section 17 § 1 (1) of the Police Act (as in the case).
30. The prosecutor established that officer DD had fired three shots at the back wheel of the car in the situation of a direct danger to the life and limb of the police officer BC. This version of events was supported by other evidence collected in the case, and in particular, by the expert evidence. According to the prosecutor, the police officer DD had not exceeded his authority in the situation when PB had not obeyed police commands and had continued carrying out dangerous car manoeuvres. The police officer DD had used his firearm in order to protect the life of his fellow officer PB and had aimed at the wheels of the car. He could not have predicted that one of the bullets would rebound against the surface of the road and would hit the driver.
3. Criminal proceedings against officer DD
31. On 18 December 2007 the applicant filed a private bill of indictment against the police officer DD, alleging that he had exceeded his authority when using his firearm. She claimed that at the critical time there had been no direct danger to the life and limb as PB had been driving away from the scene.
32. Prosecutor JJ was heard as one of many witnesses. She testified that when she arrived at the scene of the incident officers DD and BC had already left. Some other police officers, including senior ones, were present. The prosecutor asked in vain for the firearm to be handed over. She alleged that the police failed to respect the relevant procedures because they had not waited for her arrival before commencing investigative work. Later, she went to the hospital where officers DD and BC had been taken. Certain police officers had objected to the questioning of BC directly after the incident but the questioning had taken place. It was terminated in the early hours of the morning. The prosecutor excluded that the questioning had been influenced by third parties. The prosecutor wanted to hear also officer DD. After consultation with a doctor she decided not to question him.
33. On 22 May 2009 the Olsztyn Regional Court acquitted officer DD. It considered credible the evidence of the accused as it had been confirmed by various expert reports in the case and the evidence of officer BC. The credibility of the statements of officer BB had been supported by the evidence of prosecutor JJ who had questioned her directly after the incident and the police psychologist EKS. It appeared from the protocol that prosecutor JJ had arrived at the scene of the incident at 22.05 hours, which was just over one hour after the incident. There were no indications that her arrival at the scene had been delayed or that some evidence at the scene had been destroyed. The court held that there had been no evidence indicating that the police had obstructed or interfered with the investigation into the incident.
34. Two other police officers confirmed the circumstances concerning the pursuit of the Ford and the dangerous manoeuvres of the driver. They had not seen the moment of shooting. The court attached significant weight to the evidence of the expert in ballistics and the results of the reconstruction of the incident. They confirmed that PB had been shot in his head with a bullet ricocheting from the road. The court noted that telephone calls between officers DD and BC were normal. It also noted that that officer DD had worn a vest with a sign “Police” on it.
35. The court held that the accused had not breached the relevant rules concerning the use of firearms by the police. The use of a firearm had been justified under section 17 § 1 (6) in conjunction with section 17 § 1 (1) of the Police Act. PB had exposed third parties to direct danger to their life and limb by his dangerous driving. Subsequently, he posed danger to the life of the police officers when they had attempted to arrest him. In conclusion, the accused was acquitted.
36. The applicant appealed. She argued that the use of firearms had been unlawful since at the critical time PB had not endangered the life of the police officers. In addition, the police officer DD had not complied with the rules set out in the 2005 Ordinance as he had failed to give a verbal warning and to fire a warning shot.
37. On 13 October 2009 the Białystok Court of Appeal upheld the first‑instance judgment. It confirmed that PB had on a few occasions exposed officers DD and BC to a direct danger to their life and limb. It also confirmed that the police officer DD had used his firearm in compliance with the Police Act and the 2005 Ordinance. In the circumstances of the case (direct danger to life) the 2005 Ordinance had not required officer DD to give a verbal warning and to fire a warning shot. He had been solely required to give a verbal warning “police” which he had done.
38. The applicant filed a cassation appeal. She claimed that the use of firearm had been unlawful.
39. On 22 September 2010 the Supreme Court quashed the Court of Appeal’s judgment and remitted the case. It found that the lower court had failed to address the argument of the private prosecutor (the applicant) that officer DD had not been exempted from the requirement to fire a warning shot. The Supreme Court found that at the time of firing there had been no direct danger to the life or limb of the police officers. It had been established by the lower courts that at the critical time the Ford had been driving away from the scene. This situation was controlled therefore by section 17 § 1 (6) of the Police Act (direct pursuit of a person). Under the relevant provisions of the 2005 Ordinance in such a case the police officer had been required to give a verbal warning and to fire a warning shot. The Supreme Court accepted that the first of these requirements appeared to have been complied with since officer DD had given a warning “stop‑police” and had kept his right hand on the holster. There was no doubt, however, that the second requirement (warning shot) had not been complied with.
40. On 10 March 2011 the Court of Appeal again upheld the Regional Court’s judgment. Following the instructions of the Supreme Court, it concentrated its review on the lawfulness of the use of a firearm. The Court of Appeal found that the dynamic nature of the incident did not permit to distinguish precisely between an attempt on life of the police officers and the pursuit of the driver. In fact, these two elements of the case overlapped considerably. It was important to note that officer DD had aimed at the wheel and had had no intention of causing injury. The Court of Appeal noted that since the incident unfolded in a matter of seconds it would have been unrealistic to expect of officer DD to comply strictly with the 2005 Ordinance by giving first a verbal warning and then firing a warning shot. It was important to note that officer DD had given a warning “stop-police” which had been evidently ignored. The Court of Appeal found that the use of the firearm in order to immobilise the Ford had been justified by the circumstances. Although, the use of firearms by the police had to comply with the relevant regulations it was necessary to have regard to specific circumstances of each case. The court held that officer DD had not abused his authority in such a way that his criminal liability was called for. The Court of Appeal, contrary to the lower court, found that at the critical time the actions of PB had entered the phase of “escaping”. Accordingly, from the formal point of view specified in the 2005 Ordinance the use of a firearm should have been preceded by a verbal warning and a warning shot. However, in the specific circumstances of the case officer DD’s failure to comply with these rules did not amount to a criminal offence since there had been no causal link between this omission and the unfortunate result of the use of a firearm. Furthermore, there was no criminal intent in the behaviour of officer DD. Accordingly, officer DD could not be held criminally liable for the offence of abuse of authority.
41. The applicant appealed. She argued that the Court of Appeal had failed to heed the instructions of the Supreme Court. She also alleged that the Court of Appeal had wrongly found that the use of the firearm had been justified despite the failure to give a verbal warning and to fire a warning shot. Lastly, she alleged a breach of Article 2 § 2 (b) of the Convention. In this respect, she claimed that the Court of Appeal had found that shooting at the escaping car had been justified and that the firearm could be used despite a failure to comply with all relevant requirements. She relied on Nachova v. Bulgaria.
42. On 15 December 2011 the Supreme Court dismissed the applicant’s cassation appeal. It noted that the Court of Appeal had followed its instructions. In particular, the Court of Appeal found that the firearm had been used at the time when PB began to escape the location. Secondly, the Court of Appeal analysed whether the failure to comply with the relevant requirements of the 2005 Ordinance applicable to the situation of escaping could have resulted in holding officer DD criminally liable for the offence of the abuse of authority. The Supreme Court noted that one of the constitutive elements of this offence was acting to the detriment of a public or individual interest. However, the Supreme Court concurred with the lower court that officer DD had not intended to deprive the victim of his life and had not been able to foresee that his action would result in such an unfortunate outcome.
43. With regard to the applicant’s argument concerning the failure to fire a warning shot, the Supreme Court noted that the lower court had acknowledged this failure, but had found no causal link between the latter and PB’s death. The issue of a verbal warning had been already determined in the earlier judgment of the Supreme Court. Lastly, the Supreme Court dismissed as unfounded the argument concerning a breach of Article 2 § 2 (b) of the Convention. A deprivation of life shall not be regarded as incompatible with this provision if it resulted from the use of force which was absolutely necessary in order to effect a lawful arrest.
44. The Supreme Court noted that the use of a firearm in respect of an escaping driver could be justified by the danger to which he exposed other persons. The Strasbourg case-law indicated that the police should fire at the tyres, but not at the windows and the body of an escaping car. In the present case these conditions were met. It was justified to fire at the tyres of the escaping car because its driver had not reacted to police orders and created danger for the life and limb of the other persons on the road as well as to the police officers attempting his arrest.
B. Relevant domestic law
1. The Police Act
45. Section 16 of the Police Act of 6 April 1990 (Ustawa o Policji) reads, in so far as relevant:
“1. If a lawful order given by a police authority or police officer has not been complied with, a police officer may apply the following coercive measures:
1) physical, technical and chemical means to restrain or escort persons or to stop vehicles;
2) truncheons;
3) water cannons;
4) police dogs;
5) rubber bullets fired from firearms.
2. Police officers may apply only such coercive measures as correspond to the exigencies of a given situation and are necessary to ensure that their orders are obeyed.”
46. Section 17 of the Police Act provides:
“1. If the coercive measures mentioned in section 16 (1) prove insufficient, or their use in the circumstances is not possible, a police officer may use firearms exclusively:
1) in order to fend off a direct and illegal attempt on the life, health or liberty of a police officer or other person, or to prevent activities directly related to such an attempt,
2) against a person who fails to obey an order to drop immediately a weapon or another dangerous instrument whose use poses a threat to the life, health or liberty of a police officer or other person,
...
6) in the direct pursuit of a person in relation to whom the use of firearms was lawful under paragraphs 1-3 or 5, or who is reasonably suspected of committing a crime, an attempted act of terrorism, abduction in order to obtain a ransom or other demand, mugging, robbery, violent assault, intentional serious bodily injury, rape, arson or other intentional threat to public security, life and/or health,
...
3. Firearms shall be used so as to cause minimum damage to the person targeted, and without any intention of depriving that person of his or her life and without endangering the life or health of others.
4. The Council of Ministers shall issue a resolution defining the conditions and operational procedural requirements for the use of firearms by the organised Police detachments mentioned in paragraph 2.”
2. The 2005 Ordinance
47. The Ordinance of the Council of Ministers of 19 July 2005 (“the 2005 Ordinance”) on the specific conditions of the use of firearms by the police specified in § 3.1 that prior to the use of a firearm a police officer shall (1) give a verbal warning “police”, (2) give a verbal warning “stop – I shoot” and (3) fire a warning shot. Pursuant to § 3.2 of the Ordinance the above requirements were not applicable to situations foreseen in section 17 § 1 (1), (3), (5) and (8) of the Police Act.
COMPLAINTS
48. The applicant complained under Article 2 of the Convention that in the absence of any danger to the life or limb of another person the use of force against her son had not been absolutely necessary. She relied on Nachova v. Bulgaria. Furthermore, the police officers did not comply with the conditions concerning the use of firearms set out in the domestic law.
49. The applicant further alleged that the proceedings carried out by the authorities had been ineffective. In her submission, the authorities did not explain whether the use of force in the case was absolutely necessary. She also pointed out to the following shortcomings in the domestic proceedings: a) the prosecutor was belatedly notified about the incident, b) police destroyed some evidence on the site of the incident before the prosecutor’s arrival, c) first important actions were taken by the police officers from the same police force as the police officers implicated in the incident; d) the police urged the prosecutor not to question the two police officers directly after the incident; this allowed them to prepare their version of the incident; the applicant referred to a significant number of telephone calls between the two officers; e) the police failed to provide recordings of conversations between the police officer DD and the local police headquarters.
50. The applicant also complained under Article 6 that she did not have a fair trial on account of the above procedural shortcomings in the investigation. She further referred to the unjustified discontinuation of the proceedings by the prosecutor and the failure to include a crucial witness (passenger of the Ford) in the staging of the reconstruction of the incident.
THE LAW
A. Substantive aspect of Article 2
51. The applicant alleged that the use of force against her son had not been absolutely necessary in the circumstances of the case. She relied on Article 2 of the Convention. This provision reads in its relevant part:
“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;
...”
52. 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 a 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, § 150, Series A no. 324; Makaratzis v. Greece [GC], no. 50385/99, §§ 56‑59, ECHR 2004‑XI; and Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 93, ECHR 2005‑VII).
53. The text of Article 2, read as a whole, demonstrates that paragraph 2 does not primarily define instances where it is permitted intentionally to kill an individual, but describes the situations where it is permitted to “use force” which may result, as an unintended outcome, in the deprivation of life. The use of force, however, must be no more than “absolutely necessary” for the achievement of one of the purposes set out in sub‑paragraphs (a), (b) or (c) (see McCann and Others, cited above, § 148). The use of the term “absolutely necessary” indicates that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is “necessary in a democratic society” under paragraphs 2 of Articles 8 to 11 of the Convention.
54. Accordingly, and with reference to Article 2 § 2 (b) of the Convention, the legitimate aim of effecting a lawful arrest can only justify putting human life at risk in circumstances of absolute necessity. The Court has held 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 a failure to use lethal force may result in the opportunity to arrest the fugitive being lost (see Nachova and Others, cited above, § 95, with further references; and Heikkinen v. Finland (dec.), no. 22102/09, 22 March 2011).
55. 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 Makaratzis, cited above, §§ 57-59, and the relevant provisions of the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials).
56. When called upon to examine whether the use of lethal force was legitimate, the Court, detached from the events at issue, 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 Bubbins v. the United Kingdom, no. 50196/99, § 139, ECHR 2005‑II).
57. There was no controversy between the parties that PB was hit by a ricocheted bullet fired by officer DD which led to PB’s subsequent death (see paragraph 30 above).
58. The Court is satisfied that the purpose of the police pursuit was to apprehend the driver of the car. Accordingly, the action of the police was taken for the purpose of effecting a lawful arrest within the meaning of Article 2 § 2 (b) of the Convention (see Nachova and Others, § 98; Makaratzis, § 53, both cited above; and Juozaitienė and Bikulčius v. Lithuania, nos. 70659/01 and 74371/01, § 74, 24 April 2008). However, the Court has to examine whether the force used in pursuit of the above aim was “absolutely necessary”.
59. It was established in the domestic proceedings that the police officers were in pursuit of PB who was driving dangerously in a city area. The police succeeded in blocking the road and PB was forced to stop his car. Nonetheless, he continued his dangerous manoeuvres. He drove his car into the police car and attempted to run over police officers DD and BC.
60. The prosecutor’s investigation (decision of the Łomża District Prosecutor of 22 November 2007) concluded that police officer DD used his firearm in order to protect the life of his fellow officer BC. The prosecutor found that the use of the firearm by officer DD was justified under sections 17 § 1 (1) (illegal attempt on the life or health of a person) and 17 § 1 (6) (direct pursuit of a person posing danger to someone’s life or health) of the Police Act (see paragraphs 29-30 above).
61. The Court notes that in the subsequent criminal proceedings against officer DD the Supreme Court expressly found that there was no breach of Article 2 § 2 (b) in the case. It is true that with regard to the compliance with the relevant domestic regulations on the use of firearms by the police the Court of Appeal and the Supreme Court arrived eventually at a different conclusion. The Court of Appeal (in its first judgment) found that the firearm was used in the situation of a direct danger to life and limb of police officers. The Supreme Court, on the other hand, held that at the time of firing PB had been in the phase of “escaping”. In this connection, the strict adherence to the domestic law would have required the police officer DD to fire also a warning shot. However, the domestic courts found that the use of the firearm in order to immobilise the car was justified in the specific circumstances of the case. In their analysis, they had regard to a number of relevant factors such as (1) the difficulty in strictly separating between an attempt on life of the police officers and the pursuit of PB, (2) dynamic nature of the incident, (3) failure of PB to heed the police orders and (4) the fact that officer DD aimed at the tyres and had no intention of causing harm.
62. The Court, contrary to the applicant’s assertion, is not persuaded that the failure of the police officer DD to strictly adhere to the letter of the domestic law was of significant relevance in the circumstances of the case. The Court has to examine whether PB’s death resulted from the use of force which was no more than absolutely necessary. The issue of some degree of non‑compliance with the domestic law by the police officer DD as regards the conditions of the use of a firearm is one of the elements to be taken into consideration by the Court. However, this particular aspect of the case cannot be viewed in isolation from the overall context and all the relevant circumstances of the incident. On this point the Court agrees with the analysis of the second judgment of the Court of Appeal (see paragraph 40 above).
63. Having regard to the detailed findings of the domestic authorities, the Court is of the view that the police officer DD could reasonably have considered that there was a need to resort to the use of his weapon in order to stop the car and to neutralise the threat posed by its driver. It accepts the finding of the Supreme Court (see paragraph 44 above) that in the circumstances of the instant case the use of force was justified by the danger to the life and limb of the other persons on the road as well as to the police officers attempting his arrest (compare and contrast, Juozaitienė and Bikulčius, cited above, § 82). To hold otherwise would be to impose an unrealistic burden on the State and its law-enforcement personnel in the performance of their duty, perhaps to the detriment of their lives and those of others (see McCann and Others, § 200 and Makaratzis, § 66, both cited above). It was established that PB represented a danger to the arresting officers and accordingly recourse to potentially deadly force can be considered as “absolutely necessary” (compare and contrast, Nachova and Others, cited above, §§ 106-107). It should also be noted that the police was involved in an unplanned operation which gave rise to developments to which the police were called upon to react without prior preparation (see Makaratzis, cited above, § 69).
64. With regard to the level of force used the Court notes that officer DD fired three shots aiming at the tyres of the car, thus intending to minimise the danger from the use of his firearm to the driver and the car passengers. Officer DD displayed caution in the use of his firearm in accordance with what could be expected from law-enforcement professionals. The Court is satisfied that the force used cannot be considered excessive in the circumstances, despite an unintended and tragic result of its use (compare and contrast, Juozaitienė and Bikulčius, cited above, § 77 where police officers fired erratically at the car escaping from the scene of the incident; and, similarly, Wasilewska and Kałucka v. Poland, nos. 28975/04 and 33406/04, § 53, 23 February 2010).
65. The applicant does not allege that the relevant regulations on the use of firearms by the police were inadequate and the Court cannot discern any prima facie deficiency in this respect.
66. The Court considers that the use of force in the present case did not exceed what was “absolutely necessary” for the purposes of effecting PB’s arrest and/or averting the perceived threat posed by him. It follows that the complaint under the substantive aspect of Article 2 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. Procedural aspect of Article 2
67. The applicant also alleged that the respondent State had failed in several respects to comply with the procedural obligations arising out of Article 2 of the Convention. She relied on Articles 2 and 6 of the Convention. The Court considers that this complaint should be examined under Article 2 of the Convention alone.
68. The Court has recently restated the general principles concerning a procedural obligation to carry out an effective investigation into alleged breaches of the substantive limb of Article 2 in the case of Giuliani and Gaggio v. Italy [GC], (no. 23458/02, §§ 298-306 with further references, ECHR 2011 (extracts)).
69. The Court notes that shortly after the incident on 19 November 2006 the Olsztyn-Południe District Prosecutor opened an investigation into the alleged excess of authority by the police. The first decision of the Olsztyn‑Południe District Prosecutor to discontinue the investigation was quashed by the Olsztyn District Court. The case was remitted with the instructions to address a number of specific points in the case (see paragraph 22 above). The Court notes with approval the decision of the Białystok Appellate Prosecutor to transfer the investigation to the Łomża District Prosecutor apparently based on the concern to avoid any risk of partiality of the prosecutors of the Olsztyn District Prosecutor’s Office. The Łomża District Prosecutor again discontinued the investigation. On the basis of expert evidence, results of the reconstruction of the incident and the witness evidence, the prosecutor established that officer DD had fired three shots aiming at the left back wheel of the car. The prosecutor concluded that in the circumstances of the case officer DD had acted in the situation of a direct danger to the life and limb of his fellow officer and could not have foreseen that a bullet would rebound against the surface of the road and hit the driver.
70. Subsequently, the applicant filed a private bill of indictment against officer DD charging him with the excessive use of his firearm. The Court notes that the question of lawfulness of the use of the firearm was the key issue in these proceedings. This was also an important aspect of the case which needed to be finally determined at the domestic level (see, mutatis mutandis, Nikolova and Velichkova v. Bulgaria (dec.), no. 7888/03, 13 March 2007). After the repeated examination of the case officer DD was acquitted, the domestic courts finding that the use of the firearm to immobilise the car had been justified by the circumstances of the case (see paragraph 40 above – second judgment of the Court of Appeal). Having regard to the foregoing, the Court cannot accept the applicant’s argument that the authorities did not elucidate whether the use of force in the case was absolutely necessary. It is clear from the facts that this issue was exhaustively addressed both by the prosecuting authorities and the courts (compare and contrast, Wasilewska and Kałucka, cited above, § 62).
71. It was alleged by the applicant that the prosecutor had been belatedly notified about the incident and that the police urged prosecutor JJ not to interview officers DD and BC directly after the incident. However, the Olsztyn Regional Court established that prosecutor JJ had arrived at the scene at 22.05 hours which was just over one hour after the incident (see paragraph 33 above) and thus no significant delay occurred. With regard to the questioning of the two police officers, the Court notes that the prosecutor questioned officer BC directly after the incident despite doubts expressed by certain police officers and decided not to question officer DD having consulted a doctor (see paragraph 32 above). Prosecutor JJ excluded that the questioning had been influenced by third parties. In the circumstances of the case there is no basis to assume that officers BC and DD colluded with each other or with other police officers to obstruct the proper course of the investigation or that no steps were taken to reduce the risk of such collusion (see Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 330, ECHR 2007‑II). This conclusion was confirmed by the Olsztyn Regional Court in its judgment of 22 May 2009 (see paragraph 33 above).
72. The applicant also alleged that the police had destroyed some evidence before the prosecutor’s arrival and that the first important actions on the site of the incident had been taken by the police officers from the same force as officers DD and BC. It was further stated by prosecutor JJ that the police failed to respect the relevant procedures because they had commenced investigative work without waiting for her arrival at the site. The Court notes that the Olsztyn Regional Court rejected as groundless the allegation that the police had destroyed any evidence. The fact that the site was secured and the first investigative actions were taken by the police officers from the same force as the officers involved in the incident does not of itself give rise to an issue. In this respect it should be noted that the prosecutor arrived at the scene just over one hour after the incident and took over the investigation. There is no indication that the prosecutor was not independent from those implicated in the events. The fact that the police commenced investigative actions without having waited for the prosecutor in charge gives rise to a certain concern. Nonetheless, here again the Olsztyn Regional Court rejected the allegation that the police interfered with the investigation into the incident. At this junction the Court notes that both in the investigation and in the subsequent court proceedings there was no serious doubt about the essential circumstances of the case. There was no controversy about who fired at the car, how many times and from what weapon. In the investigation the prosecuting authorities relied on a number of expert reports concerning, inter alia, the trajectory of the bullets, damage to the police car and forensic examination of the victim. All of these confirmed the testimony of police officers BC and DD about the course of the relevant events. The only matter of controversy in the court proceedings was the domestic lawfulness of the use of a firearm by officer DD which the Court has analysed above with regard to the substantive aspect of the complaint under Article 2.
73. The applicant indicated two further failings in the investigation, namely the failure to examine recordings of conversations between the police officer DD and the local police headquarters as well as the failure to include the passenger of the car in the staging of the reconstruction of the incident. The first issue was addressed by the prosecutor who found that the relevant recording device had been defective for a few years. The second issue does not appear to be of a significant importance against the background of cogent and comprehensive examination of the circumstances of the incident by the prosecuting authorities and the courts. The Court considers that the failings pointed out by the applicant, and to the extent they appeared to be substantiated, did not impair the effectiveness of the investigation as a whole.
74. Having regard to the foregoing, the Court considers that both the prosecuting authorities and the courts conducted a thorough and objective examination of the case. Basing themselves on a comprehensive body of evidence, they established and analysed all relevant circumstances of the incident and determined whether the force used was justified in the circumstances. Furthermore, they acted with the requisite promptness. The Court concludes that the procedural obligation imposed by Article 2 of the Convention to carry out an effective investigation into the death of the applicant’s son was complied with in the present case.
It follows that the complaint under the procedural aspect of Article 2 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Fatoş AracıIneta Ziemele
Deputy RegistrarPresident
Full & Egal Universal Law Academy