Information Note on the Court’s case-law 243
August-September 2020
Kotilainen and Others v. Finland - 62439/12
Judgment 17.9.2020 [Section I]
Article 2
Positive obligations
Failure to preventively confiscate gun from student whose internet postings prior to committing school killings, while not containing specific threats, cast doubt on his fitness to safely possess firearm: violation
Facts – The applicants are relatives of individuals who were killed in a school shooting. The perpetrator (one of the students) had been licenced to possess a gun and, further to certain of his internet posts, had been interviewed by a police officer as regards his fitness to possess the weapon, following which it was decided that there was no need to withdraw his weapon. He killed ten people and then killed himself during the incident.
Law – Article 2 (substantive limb): The use of firearms entailed a high level of inherent risk to the right to life since any kind of misconduct, not only intentional but also negligent behaviour, involving the use of firearms might have fatal consequences on victims, and the risk of such weapons being used to commit deliberate criminal acts was even more serious. Accordingly, it was a form of dangerous activity which must engage the States’ positive obligation to adopt and implement measures designed to ensure public safety. This primary obligation consisted in the duty to adopt regulations for the protection of life and to ensure the effective implementation and functioning of that regulatory framework.
i. Regulatory framework – The Court was not prepared to hold that the absence of a nationwide sharing between the various local police authorities of information regarding past records of various threats which had not given rise to criminal proceedings could in itself be considered as a relevant deficiency.
ii. Licensing of the perpetrator’s firearm – The domestic courts had established that the licence granted to the perpetrator had been issued in compliance with the relevant legislation (the perpetrator had fulfilled the statutory requirements and had undergone a personal interview as a prerequisite for the license) and had found there was no evidence of negligence on the part of the licensing authorities. The Court saw no reason to call these findings into question.
iii. Existence of a real and immediate risk to life – The domestic courts had concluded that, although, prior to the murderous attack committed by the perpetrator, there had been certain factual elements suggesting that the perpetrator might potentially pose a risk of committing life-threatening acts, the information available to the local police authority at the time preceding the perpetrator’s criminal act, including his Internet postings, had not given rise to any reason to suspect an actual risk of an attack in the form of a school shooting. There remained a substantial difference between conduct involving video clips and cryptic postings on the Internet without any specific or even unspecific threats, and the indiscriminate killing of persons present at a specific location (see, mutatis mutandis, Van Colle v. the United Kingdom, 7678/09, 13 November 2012, Information Note 157). The domestic courts’ approach had therefore not been inconsistent with the test of actual or imputed knowledge of a real and imminent risk to life as laid down in the Court’s case-law.
Furthermore, the present case must also be distinguished from Bljakaj and Others (74448/12, 18 September 2014, Information Note 177), which concerned a mentally disturbed and dangerous person in respect of whom the need for further medical supervision had been identified and who, due to the acute state he had been in and the threats made by him, had been under immediate police control previously on the same day on which he severely wounded his wife and killed her lawyer.
The Court was therefore not in a position to conclude that there had been a real and immediate risk to life emanating from the perpetrator of which the police knew or ought to have known in advance of the attack. Thus, it could not be held that the circumstances in the present case had given rise to a duty of personal protection toward the victims of the subsequent killing, or toward the other pupils or staff of the school concerned.
The above conclusion was not affected by the argument advanced by the applicants according to which the police authority ought to have obtained the perpetrator’s medical and military records to verify data regarding his mental health. Access by the police to an individual’s medical data could not be a matter of routine and must remain subject to specific requirements of necessity and justification, which could not be established with the benefit of hindsight. Furthermore, even if the data on the perpetrator’s medical history had been available, it could not be determined whether or to what extent the assessment of whether the perpetrator posed a real and imminent risk at the relevant time might have depended on such information.
iv. Duty of special diligence – The Court held that the duty to provide general protection to society against potential criminal acts of one or several individuals may be engaged in respect of persons, notably dangerous prisoners, who were in the charge of State authorities, or in circumstances where the imminent danger emanating from them had become apparent in connection with an intervention by the police. The Court considered that a similar obligation of special diligence was engaged in the circumstances of the present case.
Although the perpetrator was not in the charge of State authorities, those authorities were responsible for determining and upholding the requirements for the lawful possession of firearms. Given the particularly high level of risk to life involved in any misconduct with firearms, it was essential for the State to put in place and rigorously apply a system of adequate and effective safeguards designed to counteract and prevent any improper and dangerous use of such weapons. This entailed a duty for the authorities to intervene when alerted to facts that gave rise to concrete suspicions regarding compliance with such requirements.
In the present case, the local police had become aware of the perpetrator’s postings on the Internet which, although they did not contain any threats, were of such a nature as to cast doubt on whether the perpetrator could safely remain in possession of a firearm. Indeed, the police had not remained passive but had conducted an interview with the perpetrator. No action had been taken, however, to confiscate the weapon he was known and licensed to possess. While an individual error of judgment could not suffice to conclude a violation of the State’s positive obligations, especially not when identified with the benefit of hindsight, what was in issue in the present case could be seen to go beyond such an error of judgment.
For the Court, the seizure of the perpetrator’s weapon was a reasonable measure of precaution to take under circumstances where doubts had arisen, on the basis of information that had come to the attention of the competent authority, as to whether the perpetrator was fit to possess a dangerous firearm. That measure would not have entailed any significant interference with any competing rights under the Convention, and thus it would not have involved any particularly difficult or delicate balancing exercise. Nor would such a measure have required any high threshold of application, rather the contrary. This finding was a matter separate from the conclusion according to which it could not be held that the decision not to seize the gun had been causally relevant to the subsequent killings, or that it had entailed a failure to comply with the State’s obligation to provide personal protection to the victims.
Therefore, the domestic authorities had not observed the special duty of diligence incumbent on them because of the particularly high level of risk to life inherent in any misconduct involving the use of firearms. There had thus been a violation by the respondent State of its substantive positive obligations.
Conclusion: violation (six votes to one).
The Court found, unanimously, no violation of Article 2 under its procedural aspect.
Article 41: EUR 30,000 for non-pecuniary damage to each household unit jointly; EUR 31,571.97 for pecuniary damage to one of the applicants (loss of earnings owing to the death of his mother).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy