Communicated on 15 December 2015
FIRST SECTION
Application no. 62439/12
Elmeri KOTILAINEN and Others against Finland
lodged on 28 September 2012
STATEMENT OF FACTS
1. A list of the applicants is set out in the appendix.
The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. The applicants are relatives of those persons who were killed in a school shooting in Kauhajoki in September 2008. The perpetrator killed ten people and then killed himself during the incident, which attracted wide publicity both in Finland and internationally.
4. The case was investigated by the National Bureau of Investigation (Keskusrikospoliisi, Centralkrimilapolisen) and the pre-trial investigation against the policer officer who had granted the perpetrator a licence to carry a gun was concluded on 8 December 2008. The public prosecutor pressed charges against this police officer on 16 February 2009. He was charged with negligent breach of an official duty (tuottamuksellinen virkavelvollisuuden rikkominen, brott mot tjänsteplikt av oaktsamhet) by the public prosecutor, and breach of an official duty (virkavelvollisuuden rikkominen, brott mot tjänsteplikt) and on ten counts of grossly negligent homicide (törkeä kuolemantuottamus, grovt dödsvållande) by the applicants. The applicants also joined the charges brought by the public prosecutor and presented their compensation claims against the Finnish State.
5. On 29 January 2010 the Kauhajoki District Court (käräjäoikeus, tingsrätten) partly dismissed the charges brought by the public prosecutor and the applicants and partly dismissed, without examining the merits, the charges brought by the applicants in so far as they concerned a too distant time before the killing. The applicants’ compensation claims were also rejected. The court found that the licence to carry a gun had been issued to the perpetrator in accordance with the law as he had fulfilled at the time the legal requirements for such a licence. The first suspicions of a possible shooting had arisen only a few days before it took place. It was shown that the day before the school shooting, the police officer in question had been aware of material that the perpetrator had published on internet but had not found it threatening. However, he had called the perpetrator for questioning on the same day. As the interview with the perpetrator had not revealed any clear reason to withdraw his gun licence, the police officer had only given him a verbal warning. The court found that the police officer had had all possible material in his possession and he had discussed the situation with his colleagues. He had interrogated the perpetrator in person, and found nothing unusual in his behaviour. His decision had been within his margin of appreciation and there was no evidence of any negligence. He had thus not breached his official duties.
6. By letter dated 30 April 2010 the applicants appealed to the Vaasa Appeal Court (hovioikeus, hovrätten), requesting that the District Court judgment be quashed and the police officer be convicted.
7. On 19 January 2011 the Vaasa Appeal Court made a procedural decision concerning the locus standi of the applicants as far as the charges of the negligent breach of official duty and breach of official duty were concerned. It found that the applicants could not be considered directly concerned by these counts and that they did not therefore have any locus standi in this respect.
8. On 15 April 2011 the Vaasa Appeal Court convicted the police officer of negligent breach of official duty for having failed to confiscate the perpetrator’s gun temporarily the day before the shooting. It found that the licence to carry a gun had been issued in accordance with the law as the perpetrator fulfilled the legal requirements applicable at the time for such a licence and he had even been personally interviewed by the police officer before obtaining this licence. The police officer in question had acted in accordance with the practice at the time. There was no evidence of clear negligence on his part as far as granting the licence in the first place was concerned. Concerning the question of whether the police officer had a reasoned ground to believe that the perpetrator was misusing his gun, the court found that such misuse had already taken place a few days before the school shooting and that the police officer should have temporarily confiscated the perpetrator’s gun. His decision not to do so was not within his margin of appreciation and therefore he was guilty of negligent breach of his official duties. As to the charges of grossly negligent homicide, the court found that the police officer had not had any concrete grounds to suspect that the perpetrator would commit the killings. The risk he had taken, and the negligence he had committed, by not taking the gun away from the perpetrator was not relevant as far as the consequences of the homicide were concerned. The police officer was thus not, through his negligence, responsible for the homicides. When assessing the punishment, the court took into account the harm caused to the police officer by the extremely wide media publicity of the incident, mainly caused by the acts of the perpetrator, and found that this publicity had been disproportionate vis‑à-vis the police officer’s negligence. He was therefore given a warning. Regarding the outcome of the case, the court found that no State liability for damage suffered by the applicants could be established on the basis of acts or omissions of the police officer in question or those of any other civil servants or State organs.
9. By letter dated 13 June 2011, the applicants appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Appeal Court.
10. On 30 March 2012 the Supreme Court refused the applicants leave to appeal.
11. By letter dated 1 June 2012 the applicants lodged an extraordinary appeal with the Supreme Court, alleging that one of the Supreme Court justices had been biased, as he had been working at the Office of the Prosecutor General (valtakunnansyyttäjänvirasto, riksåklagarämbetet) at the time when the charges were brought.
12. On 25 April 2014 the Supreme Court rejected the applicants’ application. It found that it could not be shown that the justice in question had been involved in the matter when charges were brought. He did not even have any competence to influence the prosecutor’s decision. The sole fact that he had worked at the Office of the Prosecutor General at the time when charges were brought did not give any reason to doubt his impartiality or independence as a justice. Nor was there any other reason to doubt his impartiality.
COMPLAINTS
13. The applicants complained under Articles 2 and 5 of the Convention of the lack of any measures on the part of the police to prevent the shooting. They claimed that the perpetrator should not have been granted a licence to carry a gun due to his mental problems.
14. The applicants complained under Articles 6 and 13 of the Convention that the domestic courts had not been impartial and independent, that they had assessed the evidence wrongly, and that there had been no fair trial as the pre-trial investigation had been conducted by the police. Moreover, the applicants claimed that they did not have any effective remedy as their charges had been dismissed without examining the merits for the lack of locus standi.
QUESTION TO THE PARTIES
In view of the positive obligation under Article 2 of the Convention (see for example Osman v. the United Kingdom, 28 October 1998, § 116, Reports of Judgments and Decisions 1998‑VIII), did the Finnish authorities fail to take adequate and appropriate steps to protect the lives of the applicants’ relatives?
Appendix
Mr Elmeri KOTILAINEN is a Finnish national who was born in 2006, lives in Jyväskylä and is represented by Mr Esa Puranen Mr Harri FINNILÄ is a Finnish national who was born in 1958, lives in Mantila and is represented by Mr Esa Puranen Mrs Sirkka FINNILÄ is a Finnish national who was born in 1955, lives in Mantila and is represented by Mr Esa Puranen Mrs Anneli HEIKKILÄ-KIILI a Finnish national who was born in 1960, lives in Norinkylä and is represented by Mr Esa Puranen Mr Sauli KIILI is a Finnish national who lives in Norinkylä and is represented by Mr Esa Puranen Mrs Raili KORKIAMÄKI is a Finnish national who lives in Munakka and is represented by Mr Esa Puranen Mr Tapani KORKIAMÄKI is a Finnish national who was born in 1954, lives in Munakka and is represented by Mr Esa Puranen Mr Jarmo KOSKINEN is a Finnish national who lives in Tampere and is represented by Mr Esa Puranen Mrs Kirsi KOSKINEN is a Finnish national who was born in 1954, lives in Tampere and is represented by Mr Esa PuranenMr Pasi KOTILAINEN is a Finnish national who was born in 1978, lives in Jyväskylä and is represented by Mr Esa PuranenMrs Helena LAHTI-RÖYSKÖ is a Finnish national who was born in 1957, lives in Koskenkorva and is represented by Mr Esa PuranenMr Jussi LAHTI-RÖYSKÖ is a Finnish national who lives in Koskenkorva and is represented by Mr Esa PuranenMs Marja-Terttu MARTISKAINEN is a Finnish national who lives in Koskenkorva and is represented by Mr Esa PuranenMr Seppo RANTALA is a Finnish national who was born in 1962, lives in Kauhava and is represented by Mr Esa PuranenMrs Taina RANTALA is a Finnish national who was born in 1961, lives in Kauhava and is represented by Mr Esa PuranenMrs Marketta VALLI is a Finnish national who was born in 1948, lives in Ilmajoki and is represented by Mr Esa PuranenMr Matti VALLI is a Finnish national who lives in Ilmajoki and is represented by Mr Esa PuranenMr Matti YLI-MANNILA is a Finnish national who was born in 1956, lives in Alajärvi and is represented by Mr Esa PuranenMrs Mervi YLI-MANNILA is a Finnish national who was born in 1959, lives in Alajärvi and is represented by Mr Esa Puranen
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