Communicated on 7 October 2014
SECOND SECTION
Application no. 30173/12
Stig Wølch JØRGENSEN and Others
against Denmark
lodged on 15 May 2012
STATEMENT OF FACTS
1. The facts of the case, as submitted by the applicants, may be summarised as follows.
2. The applicants are four Danish nationals, Mr Stig Jørgensen (the first applicant), born in 1952, living in Århus, Mrs Solveig Ryberg (the second applicant), born in 1954, living in Galten, Mr Mikael Nielsen (the third applicant), born in 1977, living in Flensburg, and Mr Denis Christiansen (the fourth applicant), born in 1979, living in Århus. The applicants are represented before the Court by Mr Claus Bonnez, a lawyer practising in Århus.
3. The case concerns the death of two men, Lars Wølch Jørgensen and Claus Nielsen, henceforth L and C, during a police operation which took place in the early hours of 29 December 2001. The third and the fourth applicants were also involved.
4. The first applicant is the father of L, who was born in 1976. The second applicant is the mother of C, who was born in 1978. The third and the fourth applicants are henceforth referred to as M and D.
5. On 29 December 2001 at 2.07 and 2.17 a.m., a named person reported to the police that three four-wheel drive vehicles without licence plates were being driven “like mad” at a commercial zone in Tilst, a suburb of Århus. It was snowing lightly.
6. At 2.18 a.m., police officers B and F, with B as driver in a patrol car, a Peugeot 406, informed the central office that they had found the three vehicles.
7. Two minutes later, at 2.20 a.m. police officer F informed the central office that he and B had fired their weapons; that they had been rammed several times by heavy vehicles; that they needed an ambulance since one man was bleeding heavily, and that they needed reinforcements, because two men had fled.
8. It was later clarified that the three vehicles had been stolen, that there were six men present, L, C, M, D, T and P, some of whom had tried to steal a loader tractor parked close to where the incident had taken place, that all the men but L were wearing white boiler suits, that they were all hooded, that they were in possession of a police scanner and that they hurried to the cars when the police were on their way. At the time of the event, L was driving a green Jeep with D as passenger, C was driving a black Mercedes with T in the passenger seat and M in the boot, and P was driving a grey Jeep. Moreover, there had been a collision between the police car and both the green Jeep and the black Mercedes. The police officers had fired their weapons, 7.65 mm Walther pistols, 15 times in total, of which three bullets had failed and five had entered the tyres of the green Jeep and the black Mercedes. The crucial bullets were fired as follows: the first two had entered the front window and the left side window of the green Jeep, the next two had entered the front of the black Mercedes, the following two bullets had passed through the right side window of the black Mercedes, and the last bullet had entered the right side window of the green Jeep. The men were not carrying firearms. A crowbar was found in the black Mercedes between the driver’s and the passenger’s seats. L and C had been shot, and died from their wounds shortly after. The incident lasted less than two minutes.
9. The Regional State Prosecutor (Statsadvokaten i Viborg) was informed at 3.20 a.m. about the incident and immediately thereafter, with the assistance of a special police unit, he initiated a criminal investigation concerning F and B, who were interviewed respectively at 6.55 and 9.15 a.m. Technical examinations were made of the bullets, the pistols, the cars and the scene of the alleged crime. Maps were drawn, photos were taken, recordings of conversations over the police radio were secured and autopsies of L and C were carried out. All relevant persons were interviewed, including the person who had called the police, the persons who had been present in the area at the relevant time, and the police officers who had arrived after the incident. P, who was arrested later that day, D, who was arrested on 30 December 2001, and M and T, who were arrested on 3 January 2002, were also heard. They were charged with car theft and aiding and abetting attempted murder, but the latter charges were dropped, it appears, in September 2002.
10. In a statement of 15 March 2002, the Regional State Prosecutor gave his account of the events, based on the materials in the case, which he found sufficient. He proposed to the Police Complaints Board (Politiklagenævnet for Statsadvokaten i Viborg) that criminal proceedings against the police officers should not be initiated as he found that the lethal force for which they were responsible had been justified self-defence.
11. The Regional State Prosecutor’s account of the events was detailed and contained numerous specific references to the testimony and evidence in the case. It ran to approximately 40 pages. The account may be summarised as follows. When the police arrived, the grey Jeep fled and passed so close to the police car that the latter had to make an evasive manoeuvre, although there was enough space for both cars. Thereafter, the police car drove right up in front of the green Jeep. The green Jeep advanced slowly, drove into the police car and pushed it backwards. F jumped out of the police car. The green Jeep reversed and accelerated. F stood behind the open right door and fired twice at the front of the green Jeep. One bullet entered the front window. Another bullet entered the left side window and hit L in the head (which proved to be fatal). The black Mercedes accelerated and collided with the police car on its left side, where B was seated. The black Mercedes reversed and accelerated. Either on the first or the second acceleration by the black Mercedes (this could not be fully established), F shot twice at the front of the black Mercedes from his position behind the open right front door of the police car. One of the shots hit C next to his eyelid, causing no harm. Either before or after the black Mercedes had collided with the police car, the green Jeep collided with the front of the police car for the second time. B jumped out of the police car, approached the green Jeep and fired three times at the left front tyre, but the gun did not go off. In the meantime the black Mercedes drove behind the police car, away from it, but it became stuck on a slope in the snow. F approached it and stood in front of its right front door. F fired two bullets, which went through the right side window. A shell part of a bullet hit T superficially on the forehead. One bullet hit C fatally in the left side of his back, when he was sitting with his torso and head leaning over the right front seat. The green Jeep passed both the police car and the black Mercedes and collided with a white van on the opposite side of the street. At some point B had fired a bullet at the right front tyre of the black Mercedes. Thereafter B ran towards the green Jeep and tried to open the door on the right-hand side, where D was sitting in the passenger seat with his head between his legs. The door was locked. B ordered the men to stop. When there was no reaction he fired at the right front tyre and the right back tyre. Then he knocked on the right front side window of the green Jeep with the stock of his pistol, which caused one shot to go off, breaking the window. The green Jeep drove off with L still driving and D in the passenger seat. F aimed two shots at the left back tyre of the green Jeep. One bullet hit the left back light. There was no trace of the other bullet. Probably at the same time, M and T escaped from the black Mercedes. F called the central station and began giving C first aid. B and his police dog, which had been in the boot of the police car, chased the men who had fled, but in vain.
12. The Regional State Prosecutor found no elements indicating that F or B had shot at T and M when they fled on foot.
13. The Regional State Prosecutor found it established and justified that F and B had felt attacked by the heavy four-wheel drive vehicles and that they had felt in imminent danger which justified acts of self-defence. He was not able to decide the degree of danger. In the assessment of whether the use of their weapons had been proportionate to the danger, he took into account that F, when he had fired his weapon from the position behind the open right front door of the police car, had had very little time to decide how to react to the attacks from the green Jeep and the black Mercedes; that F had felt that there was no time for warning shots or to try to shoot at the tyres, which in any event would had been difficult from this position; that the alternative of doing nothing would have resulted in B and F being run into, and that at the relevant time F and B were not aware how many men they were dealing with; and that the men that they could see were disguised and hooded, which must have been horrifying. With regard to the subsequent two bullets fired by F when he stood on the road at the right-hand side of the black Mercedes, one of which had killed C, the Regional Prosecutor noted that F had stated that, beforehand, he had seen the passenger in the Mercedes reach for an object between the passenger’s and the driver’s seats, which he perceived to be a sawn-off shotgun, and that he had shouted “drop it” or something like that, but that there had been no reaction and that he had therefore thought “now it is him or me”. Having regard to the fact that C had been leaning his torso and head over the right front seat, the Regional State Prosecutor found it established that it had in fact been C, and not passenger T, who had reached for the crowbar found in the black Mercedes. In this respect he also took into account that T had denied reaching for the crowbar at the relevant time, and that both C and T were wearing white boiler suits and were hooded. Lastly, he found it established that the last shot fired by B, which came out through the roof, went off unintentionally when B knocked on the right front side window of the green Jeep with the stock of his pistol. The Regional State Prosecutor found that this shot was regrettable but did not find that it should result in criminal proceedings being initiated against B.
14. On 3 April 2002 the Police Complaints Board stated that it had been kept up to date with the investigation since the beginning of January 2002 and agreed that no further investigation was required. As to B, it was in agreement with the Regional State Prosecutor’s assessment and decision. With regard to F, it agreed that the shots fired at the Jeep and the Mercedes while those cars were accelerating had been fired in self-defence. However, in respect of the subsequent fatal shots fired at C, the Police Complaints Board found that Article 13 of the Penal Code on self-defence had been interpreted so widely that the decision, for the sake of all concerned, ought to be taken by the courts.
15. On 4 April 2002 the Regional State Prosecutor decided not to initiate criminal proceedings against F and B. Shortly after, the applicants received the decision and the opinion of the Police Complaints Board.
16. The first, second and third applicants, plus T, appealed against the decisions to the Director of Public Prosecutions (Rigsadvokaten), who on 25 June 2002 upheld the decision not to initiate criminal proceedings against F and B. His decision was sent to each of the applicants. In addition the Prosecutor General replied to 25 questions posed by the first applicant about the investigation.
17. The case attracted wide media attention from the newspapers and television.
18. Based on a request by the media in November 2002, the Regional State Prosecutor decided to reopen the case, notably as to an expert opinion of 14 January 2002, procured by the Weapons Section of the Criminal Technical Department. The Regional Prosecutor posed various new questions in that connection and interviewed F, B, D, T, M and P anew.
19. On 26 May 2003, the Regional State Prosecutor submitted a supplementary statement to the Police Complaints Board. Having received a new expert opinion from the Weapons Section, he changed his account of the event as follows. At the beginning, when F stood behind the open right door, it was originally found established that F had fired twice at the front of the green Jeep, with one bullet entering the front window and another bullet entering the left side window and fatally hitting L in the head. However, although nobody had stated that B had also fired a shot at the green Jeep, it had to be B who had fired the bullet through the front window of the green Jeep. B had no recollection thereof. Accordingly, at the relevant time, F had only fired one shot, but still the fatal bullet. Moreover, it had to be F and not B who had later fired a shot at the right front tyre of the black Mercedes, when it became stuck on a slope behind the police car. Since there was no further information about the shot that B must have fired though the front window of the green Jeep, which did not hit anybody, it was not possible for the Regional State Prosecutor to decide whether that shot had been deliberate or accidental and, if it had been deliberate, whether it had been fired in self-defence. The Regional State Prosecutor also replied to various questions about the investigation, which had been submitted to him or the Director of Public Prosecutions. He regretted that the information had not been clear as to the two shots. In conclusion, again he proposed to the Police Complaints Board that criminal proceedings against the police officers should not be initiated as he found that the lethal force for which they were responsible had been justified self-defence.
20. On 11 June 2003 the Police Complaints Board stated that it still found that criminal proceedings should be initiated against F for the fatal shot fired at C in the black Mercedes, in order to have a decision by the courts as to the extent of self-defence covered by Article 13 of the Penal Code. It agreed with the Regional State Prosecutor as to the new version of events and that it was regrettable that the original expert opinion by the Weapons Section had been erroneous, which in its view had contributed to reducing the general trustworthiness of the investigation.
21. On 12 June 2003 the Regional State Prosecutor informed the applicants that he upheld his decision of 4 April 2002 not to initiate criminal proceedings against F and B.
22. The first, second and third applicants, plus T, appealed to the Director of Public Prosecutions and submitted questions and comments about the investigation in July, August, September, October and December 2003, as well as in February and April 2004.
23. On 30 June 2004, the Director of Public Prosecutions upheld the decision by the Regional State Prosecutor. His statement in support thereof and reply to the various questions posed by, inter alios, the first applicant, ran to 23 pages.
24. On 9 February 2005 the Director of Public Prosecutions refused to reopen the case in respect of the third applicant, who maintained that the police officers had shot at him when he was fleeing.
25. On 31 October 2005 the Ombudsman made a statement addressing complaints by the first applicant and by the representative of the first and third applicants of June, July and August 2005. The Ombudsman stated that he would not examine the case any further since he understood the complaints to be a general disagreement with the account of the events as established by the Regional State Prosecutor and the Director of Public Prosecutions, which would fall outside the framework of an examination by the Ombudsman, and since there were no prospects of him criticising the decision by the Regional State Prosecutor and the Director of Public Prosecutions to discontinue the investigation of the case.
26. On 30 June 2006 the Regional State Prosecutor refused a request by the first applicant to reopen the case.
27. On 23 December 2006 and 19 November 2007, the applicants and T and P initiated compensation proceedings before the High Court of Western Denmark (Vestre Landsret, henceforth “the High Court”), against the Police Commissioner for Eastern Jutland, the Ministry of Justice, and the Director of Public Prosecutions for non-pecuniary loss due to alleged infringement of Articles 2 and 3 of the Convention. The applicants wanted the High Court to assess whether the force used by F and B went beyond the “absolutely necessary” and whether the investigation had been effective and conducted in such a way that it could be relied on. The applicants found that the force went beyond the “absolutely necessary”. As regards the procedural aspect, the applicants contended that the investigation had been insufficient and that further reconstructions should have been staged. Moreover, the applicants did not have access to all the material in the case from the very beginning and they had not been present when F and B were interviewed or at the reconstructions.
28. Before the High Court, technical evidence, expert opinions and autopsy reports were submitted, police radio records were heard, and maps, sketches and photos were shown. The first applicant, T, M, D, F and B were heard, as well as the man who had called the police that night and a witness who had been in the vicinity.
29. On 15 September 2009, by a judgment which ran to 131 pages, the High Court found unanimously against the applicants. Concerning the substantive aspect, the High Court found that the events, in so far as they could be established, corresponded to the account given by the Regional State Prosecutor in his supplementary statement, and that F and B had acted within the limits of self-defence. It found no elements indicating that the third and fourth applicants had been shot at by F or B when they were fleeing.
30. Concerning the procedural aspect, the High Court found that the investigation had been sufficient and that the error in the original expert opinion by the Weapons Section had been corrected in the reopened proceedings. It noted that it was normal and human for witnesses to some extent to have divergent perceptions and recollections of events and that technical evidence could not always establish the facts without leaving a certain margin. Likewise in the present case, it would not be possible to reconstruct the details of the events with absolute certainty. Nevertheless, as to the fatal shots, the High Court found that the investigation had been effective and appropriate to establish the facts and to determine whether the force used had been absolutely necessary. There was no indication that new or repeated examinations could lead to a further clarification of the events and there was no indication of negligence in the investigation as carried out. Moreover, the applicants had had access to all the materials in the case as soon as the charges against them for aiding and abetting attempted murder were dropped in 2002.
31. Specifically, in its reasoning, the High Court stated as follows:
“Concerning the shooting
It has been submitted that the defendant must prove that the police officers acted in self-defence, when inter alia the fatal shots were fired.
[...] The two police officers arrived at a seemingly routine police operation, where car thieves, who knew that the police were on their way, should be arrested. The police operation suddenly became unexpectedly dramatic, when the police car was driven into, and the police officers realised that the car thieves, whom the police officers could see were masked, attempted to avoid arrest by using the stolen four‑wheel drive vehicles to collide with the police car in which the police officers were seated. In these circumstances, there is no basis for changing the starting point, according to which it is [the applicants] and T who must substantiate the authorities’ liability when using force.
In the case against the Police Commissioner for Eastern Jutland the High Court must assess whether the fatal shot fired by F against the green Jeep and the shots fired by F outside the passenger seat of the black Mercedes, one of which killed C, and the shot fired by B at the moving green Jeep were such as to incur liability, and whether shots were fired at T and M when they were on the run. The plaintiffs have not disputed that the police officers were in a situation which justified the shots at the tyres of the cars and the shots through the front of the black Mercedes.
In the assessment of whether the shots were fired under circumstances which exempt from punishment it is, according to the Court of Human Rights, decisive whether it was absolutely necessary to use firearms, and their use must have been reasonably reasoned in the concrete situation. A police officer who shoots must honestly perceive that there is a danger to his life or the lives of others. The crucial point is whether this perception could have been justified, and it is without importance if afterwards it turns out that the perception was not correct.
The shots were fired after the police car had stopped in front of the green Jeep. At 2.18.35 a.m., before the police car had passed the grey Jeep and before the collisions, the guard at the central office had been informed that the police car “had the three stolen vehicles”. The report that shots had been fired came at 2.20.42 a.m. It can therefore be concluded that the course of events, from when the police car was in front of the green Jeep until the report at 2.20.42 a.m., lasted approximately two minutes, and that the shooting incident lasted a shorter time, in that F, at the earliest, got out of the police car after the first collision with the green Jeep, and that the report at 2.20.42 a.m. was submitted only after F had assisted B and his dog over the fence. Within this short lapse of time, twelve shots were fired and three shots attempted.
It is not unusual for explanations from persons who have all witnessed the same dramatic event to be conflicting, without this reflecting that those present are consciously lying. The same event can have been experienced differently by those present, and the explanations may be marked by post-rationalisation. Thus, often it is not possible on the basis of the explanations by those present or technical examinations to establish the precise course of events. However, the uncertainties in the present case do not entail that the High Court cannot assess the legality of each act.
When assessing whether the police officers acted in self-defence, the High Court takes its starting point in the situation in which the police officers found themselves, when, expecting to arrest common car thieves, they found the car thieves in two of the stolen cars attacking them.
The police officers have explained that it was the green Jeep which attacked the police car, whereas D and T have explained that it was the police car which attacked the Jeep. It would go against logical supposition that the smaller police car should have attacked the bigger Jeep and the High Court therefore finds it established that it was the green Jeep that attacked the police car and not the other way around.
After the production of evidence it can be established that F, after the alighting and before the shooting, lifted his pistol, and that the car thieves in spite of this did not show any signs of surrendering. It can also be established that F’s shots against the two four‑wheel drive vehicles were fired very shortly after F had alighted. The High Court also finds that F, when the shots were fired, was situated at the right side of the police car. That corresponds with the explanations given by F and T, in that T stated, among other things, that F, during the firing against the Mercedes, stood “somewhere behind the police car”. In addition, the results of the technical examinations do not rule out that F fired the shots from this position. It is not possible to conclude with more precision how far from the police car F was, and F’s position in relation to the green Jeep. F has explained that he might have moved instinctively after alighting, so that he was not placed just behind the door. B has explained that he did not notice where F stood. The High Court thus finds that there are no reasons to assume that F was placed at the side of the green Jeep when he fired the fatal shot at L.
As to the reason for firing, F explained that the shots were fired because he assessed that the police officers were in a life-endangering situation surrounded by two four‑wheel drive vehicles with car thieves, who opposed arrest by driving into the police car with the four-wheel drive vehicles, and that everything went so fast that he did not have time to fire warning shots or consider other opportunities. The High Court does not find reason to contest this explanation.
Since the fatal shot at the driver of the green Jeep was fired in a situation in which F justifiably felt that his and B’s lives were in danger, the High Court finds that the situation was self-defence covered by Article 13 (1) of the Penal Code, and that the criteria set out by the Court of Human Rights for impunity in respect of the use of firearms are fulfilled.
As to the further sequence of events, the High Court finds that the black Mercedes after having run into the police car, which was moved due to the collision, got free of the police car, passed it and accelerated, until it became stuck in the snow, sloping at the side of the road. F ran to the black Mercedes to arrest the car thieves and positioned himself in front of the passenger seat, where T was seated. F and T have provided divergent explanations about the events leading to F shooting into the black Mercedes, where one of the shots hit C in his upper back, after which the shot went down into the abdominal cavity. F stated that there was much activity in the Mercedes. T has stated that he tried to take off his mask to show surrender. F has not mentioned signs of surrender, but instead explained that he saw a person - whom he remembered as the front passenger - bend down to reach for an object. F could see the object, which he feared was a sawn-off shotgun, and he thus shot from fear of being shot. It is not possible to establish whether it was C who bent down to reach for the object or T, but considering the technical evidence as to the angle of the bullet, the High Court finds it most likely that it was C who leaned forwards. When the crowbar, which was subsequently found on the floor by the passenger seat, in the situation could be mistaken for a shotgun, and since F after the collisions must have had a justified fear that the car thieves were in possession of firearms and might think of using those, the High Court finds F’s explanation substantiated. Hereafter, the High Court finds that also as to the firing of these shots, F was in a self-defence situation covered by Article 13 (1) of the Penal Code, and that the criteria set out by the Court of Human Rights for impunity in respect of the use of firearms are fulfilled.
At 2.53 a.m., B told the guard at the central station that when alighting the police car, he was forced to jump aside because the green Jeep almost ran into him, whereupon he had shot into the tyres. Subsequently, the green Jeep had run into a parked van, and B had run to the Jeep and smashed the side window with the stock of his pistol. D explained about this event that the window broke when B shot through the window, whereas B insisted all along that he did not shoot into the green Jeep and that it had been unintentional if he had shot into the car. Pursuant to the report by the Weapons Section of the Criminal Technical Department, the side window in the green Jeep was smashed due to a shot fired by B’s pistol. It follows from the report that the shot went off at an angle equivalent to a trajectory from around the right front tyre through the upper part of the side window to the impact in the ceiling. The conclusion in the report about the trajectory is not consistent with D’s explanation that B, immediately before the shot, aimed at him. In these circumstances the High Court does not find reason to disregard B’s statement that the shot was fired unintentionally, and therefore this shot does not breach Articles 2 or 3 of the Convention either, and cannot constitute a basis for liability for the Police Commissioner for Eastern Jutland.
After the explanations by T and M, and the rest of the production of evidence, there is no basis for assuming that there were shots against these persons [T and M], when they had alighted the black Mercedes and were setting off. The fact that F said to the guard at the central station that the escaped suspect had been hit does not support this either since F, who had shot several times through the windows of the black Mercedes, could have thought that other persons than the one lying next to the car [C] had been hit by the shots. Nor can [such an assumption] be deduced from the fact that police officer V had had that impression when he spoke to F just after the events. Accordingly, these plaintiffs do not have a compensation claim against the Police Commissioner for Eastern Jutland for unnecessary use of force.”
...
“Concerning the claims that the investigation under section 1020 a did not fulfil the requirements of the Convention
The Convention requires that the investigation which must be carried out into complaints about the authorities’ use of force, must be effective in the sense that it is capable of leading to a determination of whether in the circumstances the force used was or was not justified, and the investigation must appear trustworthy to the public.
It can be taken as a given that the Regional State Prosecutor was informed rapidly about what had happened in Tilst; that the area was cordoned off immediately; and that the necessary investigation steps were initiated instantly. All relevant persons were heard several times in an attempt to describe the events and to clarify discrepancies. Technical examinations were carried out of the alleged crime scene, the cars, the weapons, and reconstructions of the events were made in order to establish how the collisions had happened and what the trajectories had been. When attention was called to possible errors in the examinations by the Weapons Section of the Criminal Technical Department, or the assessments based on those examinations, the investigation was reopened and the error corrected.
The Regional State Prosecutor has in his decisions indicated in several places that there are circumstances which cannot be clarified. [The applicants] and T have submitted that the investigations were unsatisfactory and flawed on several points.
As mentioned above, in a course of events like the present one it will not be possible subsequently to clarify every detail. The High Court finds that the investigation of the shooting - which in respect of the fatal shots led to the conclusion that they were fired in an act of self-defence – was efficient and suitable for establishing whether the police officers had committed criminal offences, and whether unnecessary force had been used. There is no reason to assume that new investigation steps would have led to further clarification of the actual course of events. The fact that additional investigation could have been carried out cannot lead to another conclusion, since the investigating authority had not acted negligently.
[The applicants] have claimed that they have not been involved in the investigation to the extent that they are entitled under the Convention. Simultaneously with the investigation carried out by Regional State Prosecutor under chapter 93 c of the Administration of Justice Act, an investigation was carried out against P, T, M and D, who were charged with inter alia attempted homicide. Due to that pending investigation [the applicants] were not granted access. When the charges for attempted homicide were dropped, [the applicants] were granted access. Against this background there is no breach of the Convention on this account.
The two police officers were interviewed by the Regional State Prosecutor a few hours after the shooting incident. Since [they] were both at the police station, they had the possibility to agree on their statements while awaiting the interview, and in fact they have confirmed that they discussed the case while waiting. The possibility alone, that they agreed on their explanations, is unfortunate and capable of reducing public confidence in the investigation but is, pursuant to paragraph 330 in Ramsahai and Others v. the Netherlands [GC] (no. 52391/99, ECHR 2007‑II) not sufficient to conclude a breach [of the Convention].”
...
32. The applicants appealed against the judgment to the Supreme Court (Højesteret). They disagreed with the events as found established by the prosecution authorities and the High Court. In particular, they alleged as to the green Jeep that it was B who had fired the fatal shot at L, that later B had deliberately shot through the right front side window of the Jeep, and that the shot through the front window of the Jeep had been fired where the Jeep was found at the end of the events. As to the black Mercedes, they alleged that the two shots which went through the front window had been fired after the collision with the police car, and at another place, and that F, when he had fired the fatal shot at C, had not acted in self-defence. With regard to the investigation the applicants alleged, amongst other things, that some recordings had been deleted and that they had not been provided with some recordings of telephone conversations of the Regional State Prosecutor concerning the summoning of representatives of the police officers’ trade union. Finally, during the proceedings before the Supreme Court, they complained that they had not been granted a second expert opinion with regard to the bullet, called VS 3.1 in the file, which had killed L.
33. It was noted by the defendants, though, that as soon as the criminal investigations had been finalised against the implicated persons, the applicants had been granted access to all the material that they had requested, including recordings, except for recordings including persons who had no connection to the case.
34. Bullet VS 3.1 had originally been examined by the Weapons Section of the Criminal Technical Department and compared with the pistols used by F and B and test shots fired by the two pistols of specific bullets of the same calibre, 7.65 mm. In its expert opinion of 16 January 2002, it was noted that the bullet was rather damaged and thus had a low identification value. However, when using a special microscope, some specific small scratches were found which matched F’s pistol and the test bullets fired by this weapon. The applicants did not criticise the way the examination had been carried out, but before the Supreme Court they requested a new examination by the Weapons Section, or in the alternative by the UK Met Intelligence Bureau, New Scotland Yard, in order to establish whether the bullet had been fired by F or B. However, it was technically impossible to carry out a re‑examination, because the Weapons Section was no longer in possession of the test bullets used in the original examination. Accordingly, by a final decision of 10 June 2011 the Supreme Court refused to order a re‑examination of bullet VS 3.1. The applicants’ request for a review of that decision was refused by the Supreme Court on 4 August 2011.
35. By judgment of 30 November 2011 the Supreme Court unanimously found against the applicants, and stated in so far as relevant the following:
...
“Yardstick to be applied in the assessment of the course of events
By virtue of section 1020 a, subsection 2, of the Administration of Justice Act, the Regional State Prosecutor must initiate an investigation when a person dies due to the intervention of the police. The deceased were unarmed when they were shot at by the police, and it is therefore decisive for the assessment, whether it was absolutely necessary to use firearms as it happened. It is not the authorities which have to prove that there has been no breach of Article 2 of the Convention (see, Hugh Jordan v. the United Kingdom, no. 24746/94, § 113, ECHR 2001‑III (extracts)), but a satisfactory and plausible explanation regarding the necessity is required by the authorities (ibid., § 124).
The shooting
The Regional State Prosecutor’s investigation under section 1020 a, subsection 2, of the Administration of Justice Act, took place in accordance with section 1020 b, subsection 2, with the assistance of the National Commissioner of Police, including Department A, the Criminal Technical Department. [The latter] expressed as to the examination of bullet VS 3.1, that the bullet was rather damaged and thus had a low identification value. The Department has concluded that it must be considered probable that the bullet was fired from F’s pistol, and that the same specific scratch traces were not found in B’s pistol. [The applicants] have not criticised the way in which this examination was carried out. The Supreme Court does not find reason to criticise the investigation on this point. Moreover, the Supreme Court finds that by virtue of the examination carried out by the Criminal Technical Department it is sufficiently clarified from which pistol bullet VS 3.1 was fired, and thus that there is no need to carry out yet another technical expert examination.
The Supreme Court confirms that it can be found established after the production of evidence, that both the shot that killed L as driver of the green Jeep, and the shot that killed C as driver of the black Mercedes, were fired by police officer F. For the reasons submitted by the High Court, the Supreme Court confirms that both shots were fired in an act of self-defence covered by Article 13 (1) of the Penal Code, and that the criteria set out by the Court of Human Rights for impunity in respect of the use of firearms under Article 2 § 2 are fulfilled.
After the submission of evidence, the Supreme Court confirms that the shot that went through the right front side window of the green Jeep was fired by B. For the reasons set out by the High Court, the Supreme Court confirms that there is no basis for dismissing B’s explanation that the shot was fired unintentionally. Accordingly, in relation to D, it is confirmed that this shot did not entail a violation of Articles 2 and 3 of the Convention, and that the shot does not incur liability for the Police Commissioner for Eastern Jutland.
For the reasons set out by the High Court, there is no basis for D to claim compensation.
The investigation under section 1020 a
The Supreme Court agrees with the High Court that the possibility alone that for a few hours the police officers were able to agree on their statements, before being interviewed by the Regional State Prosecutor, is unfortunate. However, having made an overall assessment, the Supreme Court does not find grounds for concluding that as a consequence thereof, the examination by the Regional State Prosecutor was unsuited to clarify the question as to whether criminal proceedings should be initiated against the police officers, including whether the force used had been in breach of Article 2 of the Convention.
With this remark, and for the reasons set out by the High Court, the Supreme Court confirms that there has been no breach of the Convention relating to the investigation carried out by virtue of section 1020 a of the Administration of Justice Act. For those reasons the Ministry of Justice and the Director of Public Prosecutions have not incurred liability in connection with the investigation.
Concluding result
On this background the Supreme Court upholds the judgment by the High Court
Legal costs
The Supreme Court finds that there are such particular circumstances, that the appellants shall not pay legal costs to the defendants ...
COMPLAINTS
36. The applicants complained under Articles 2 and 3 that the use of force by the police had not been absolutely necessary and that the subsequent investigation had failed to meet the applicable standards. They also complained under Article 13 about the outcome of the domestic proceedings and alleged shortcomings during the investigation.
QUESTIONS
1. Have the applicants complied with the six-month time-limit laid down in Article 35 § 1 of the Convention? In particular, were the subsequent civil proceedings an effective remedy within the meaning of this provision, which the applicants had to exhaust and which should therefore be taken into account for the purposes of the six-month time-limit (see, inter alia, Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, §§ 227 and 234, 17 September 2014; Salman v. Turkey [GC], no. 21986/93, §§ 83-88, ECHR 2000‑VII; and İlhan v. Turkey [GC], no. 22277/93, §§ 61-62, ECHR 2000‑VII?
2. Has the applicants’ right to life, ensured by Article 2 of the Convention, been violated in the present case? In particular, was the use of force, notably the fatal shots against L and C, and the shot that went through the right front side window of the green Jeep (which did not hit anybody), absolutely necessary for the purposes of paragraph 2 (a) and (b) of this Article?
3. Having regard to the procedural protection of the right to life (see, for example, § 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII), was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?
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