MENDY v. FRANCE

FIFTH SECTION

DECISION

Application no. 71428/12
Florence MENDY
against France

The European Court of Human Rights (Fifth Section), sitting on 4 September 2018 as a Chamber composed of:

Angelika Nußberger, President
Yonko Grozev,
André Potocki,
Síofra O’Leary,
Mārtiņš Mits,
Gabriele Kucsko-Stadlmayer,
Lado Chanturia, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the aforementioned application lodged on 2 November 2012,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms Florence Mendy, is a French national who was born in 1976 and lives in La-Seyne-sur-Mer. She was represented before the Court by Mr P. Spinosi, a lawyer practising in Paris.

A. The circumstances of the case

2. The facts of the case, as submitted by the parties, may be summarised as follows.

3. The applicant is the sister of L.M., a sports coach working in a football club, who was killed by a police officer under the circumstances set out below.

4. Just after 6 p.m. on 3 May 2007 an employee at a day nursery adjoining the football club informed the police that L.M. had been seen threatening J.-P. H., a club member, with a knife.

5. Police sergeant L.L. and police officer S.T., members of the serious crimes bureau, arrived at the scene of the incident within minutes. They looked through some windows to see L.M. and J.-P.H. inside a sports hall, with L.M. brandishing a knife. The police officers were unable to enter the premises, and therefore shouted an order through a window to L.M. to drop his knife, one of the officers showing his service gun at the window. J.‑P.H. took the opportunity to run out into the street. He was immediately pursued by L.M. Police sergeant L.L., who found himself facing L.M. with his knife pointing at him, moved aside. L.M. ran on after J.-P. H. One of the officers fired a warning shot in the air. L.M. nevertheless kept on running after J.-P. H., with the two officers in hot pursuit.

6. Shortly afterwards, police sergeant L.L. was skirting round a container when he once again came face-to-face with L.M., who made one unsuccessful attempt to stab him, and then tried again, this time injuring his hand. L.M. ran off again, was hit by a car at a street corner, got up and resumed his pursuit of J.‑P.H., still armed with his knife. Police officer S.T. then fired two shots at L.M., missing him. He then ran after him, firing two more shots at him. The shots hit L.M. and he collapsed. Despite his injury, police sergeant L.L. immediately ran to L.M.’s assistance, alerted the emergency services and called for reinforcements. It was 6.14 p.m. At that time the officers could not find J.‑P.H. as he had sought refuge in a police station.

7. At around 8 p.m. on 4 May 2007 L.M. died at the hospital to which he had been taken the previous evening.

8. During the evening of 3 May 2007 the Regional Delegation of the General Inspectorate of the Police Service was instructed to conduct an investigation. The driver of the vehicle which had hit L.M., the persons present at the day nursery, one of whose employees had called the police, and the two police officers were questioned. On the following day a reconstruction of the events was organised.

9. On 7 May 2007 an autopsy of L.M. showed that he had been hit by two bullets: the first had gone through his left hand and the second had hit his head, killing him.

10. The case was discontinued.

11. On 19 May 2007 the applicant lodged a complaint against persons unknown for murder, joining the proceedings as a civil party.

12. Between December 2007 and July 2008 the witnesses and police officers underwent further questioning.

13. An expert report ordered by the investigating judge stated that at the time of the fatal gunshot, according to the testimony of a mother present at the day nursery, L.M. had been standing about twenty-five metres away from J.‑P.H. It specified that the ballistics assessment had found that L.M. must have been five metres from S.T. when he had been shot.

14. On 15 December 2009 the investigating judge issued a discontinuance order on the grounds that the investigation had not shown any intention on the police officer’s part of wishing to kill L.M., that the events had unfolded extremely quickly and unforeseeably, and that S.T. had been acting legitimately in attempting to protect the life of J.-P.H., whom L.M. had been directly threatening. The judge emphasised, in particular, that despite the shots previously fired, L.M. had continued chasing J.‑P.H., thus showing his determination to attack him physically. The judge noted, in that regard, that one of the witnesses had stated that L.M. had not seemed to be in a “normal state” or to be reacting as if fully aware of what he was doing. He further observed that a knife with a fourteen-centimetre-long blade had been found near L.M.’s body, as had a twenty-one-centimetre-long curved oriental dagger in a metal sheath. Lastly, the judge held that the use of the firearm had been proportionate to the threat posed by L.M. to J.-P. H.’s life.

15. The applicant appealed, arguing, in particular, that her brother had not intended to injure J.-P.H. and that he had lost his temper because the police officers had drawn their weapons on their arrival on the scene. The applicant also contested the distance between L.M. and J.-P.H., submitting that it had transpired from the witness statements that J.‑P.H. had managed to shake off her brother, who had therefore been alone at the time of the fatal gunshot. She also argued that given the short distance between her brother and the police officer, the latter could had aimed at the lower part of his body.

16. By judgment of 16 February 2010, the Investigations Division of the Aix-en-Provence Court of Appeal annulled the discontinuance decision and ordered further inquiries with an eye to charging S.T. with acts of violence leading to L.M.’s accidental death. That court, answering the applicant’s arguments point by point with detailed reasoning, emphasised in particular that it was wrong to claim that L.M. had felt threatened at the sight of the police officer’s service weapon through the window, as he had already been showing an aggressive attitude to J.-P.H. before the officers’ arrival. It also pointed out that L.M. ought to have dropped his knife after the warnings given by the officers. The court added that the fact that the witnesses had not seen L.M. and J.-P.H. together did not imply, as claimed by the applicant, that L.M. had been alone and J.-P.H. had had time to escape. Furthermore, it held that L.M.’s behaviour had indeed posed an immediate danger and that it had therefore been vital to ensure that he did not catch up with J.‑P.H. In that connection, it emphasised that L.M., who had at no point dropped his knife despite the requests from the police officers and had injured one of them, had presented a real danger. Nevertheless, the Investigations Division noted that the proportionality of the means used by the officer had been debatable, as the direction in which he had shot could well have been the result of a miscalculation on his part, and that he should have provided more detailed information on this matter.

17. S.T. was questioned further on 10 May. He explained that his last two gunshots had been reflex actions, that is to say that he had fired them while moving and therefore been unable to take aim. He pointed out that they had not been precision shots, since a displacement of the gun barrel by one millimetre could divert the point of impact by several centimetres. He explained that he had tried to hit the bulk of the person’s body, the torso, but had missed, mainly because of the rapidity of events and the fact that both the protagonists had been moving.

18. By judgment of 3 May 2011 the Investigations Division ruled that there were no grounds for prosecuting S.T. or anyone else. It justified that decision with reference to the behaviour of L.M., who had at no time, despite several shouted warnings, dropped the knife with which he had been threatening J.‑P.H., who had still been pursuing the latter when the shots had been fired, and who had thus posed an imminent danger. The Division emphasised that it had transpired from the further inquiries that S.T. had explained, consistently with the evidence on file, in particular the ballistics report, that he had fired reflex shots, merely seeking to hit the bulk of his body, without deliberately aiming at his head. It noted that the expert had confirmed that S.T.’s estimation of his distance from L.M. was consistent with the ballistics findings, and that it should be remembered that the police officer and L.M. had been running, which, at a distance of five metres, ruled out any greater precision. It noted that the first shots fired had not in fact hit L.M. The Investigations Division considered that the response had been proportionate to the seriousness of the endangerment of J.‑P.H., especially since the second police officer, who had been injured by L.M., had no longer been able to act. It therefore concluded that the conditions for legitimate defence of others had been met.

19. The applicant appealed on points of law.

20. By judgment of 2 May 2012 the Court of Cassation dismissed her appeal on points of law.

B. Relevant domestic law

21. Articles 122-5 (1) and 122-7 of the Penal Code as applicable at the material time provide:

Article 122-5 (1)

“A person is not criminally liable if, confronted with an unjustified attack upon himself or upon another, he performs at that moment an action compelled by the necessity of self-defence or the defence of another person, except where the means of defence used are not proportionate to the seriousness of the attack.”

Article 122-7

“A person is not criminally liable if, confronted with a present or imminent danger to himself, another person or property, he performs an act necessary to ensure the safety of the person or property, except where the means used are disproportionate to the seriousness of the threat.”

22. Prior to the enactment of Law no. 2017-258 of 28 February 2017, police officers were subject to the requirements of self-defence or legitimate defence (Article 122-5 of the Penal Code) and of necessity (Article 122-7 of the Penal Code). The use of service weapons was thus subject to the proportionality flowing from the said legal texts, compliance with which was supervised by the Court of Cassation. As an illustration, the Court of Cassation ruled well-founded a judgment holding that the following act had not satisfied the proportionality requirement for legitimate defence: a police officer had fired a fatal gunshot at a vehicle which had avoided direct contact and confrontation with the security forces but had previously formed part of, before leaving, the same group as another car involved fifteen or twenty minutes earlier in forcing a police barrier, with fatal consequences (see Cass. crim., 26 July 2000, no. 00‑83.552 ). Furthermore, Article 9 of Decree no. 86-592 of 18 March 1986 setting out the police deontological code regulated the use of force:

“Where it is authorised by law to use force, and in particular to use service weapons, police officers may do so only insofar as strictly necessary and proportionate to the aim pursued”.

The Law of 28 February 2017 harmonised the statuses of police officers and gendarmes, who were already subject in practice to very similar regulations developed over the years in the case-law of the Court of Cassation (see, for example the following judgments of the Court of Cassation: Cass. crim., 26 July 2000, no. 00‑83.552, mentioned above; Cass. crim., 12 February 2002, no. 01‑82.863; and Cass. crim., 10 October 2007, no. 06‑88.426; see also, as regards the gendarmerie, the references in Guerdner and Others v. France, no. 68780/10, §§ 43‑44, 17 April 2014) consistent with the case-law of the Court (see Guerdner and Others, cited above, § 74).

COMPLAINTS

23. Relying on Article 2 of the Convention, the applicant submitted that the use of such a degree of force by the police officers had not been absolutely necessary, given that her brother’s conduct had not posed any sufficiently imminent threat to justify the gunshots.

24. She also considered that the State had failed in its positive obligations to protect L.M.’s life on account, firstly, of the lack of supervision of the police operation, and secondly, of the vagueness of the statutory framework governing the use of firearms.

25. Under the procedural limb, the applicant submitted that the proceedings had fallen short of the independence and effectiveness requirements under Article 2 of the Convention.

THE LAW

26. The applicant considered that her brother’s right to life had been violated. She relied on both the substantive and the procedural limbs of Article 2 of the Convention, which provides:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

A. The substantive limb

27. The Court refers to the judgments in the cases of McCann and Others v. the United Kingdom, (27 September 1995, Series A no. 324), Giuliani and Gaggio v. Italy ([GC], no. 23458/02, §§ 174‑182 and §§ 208‑210, ECHR 2011 (extracts)), and Makaratzis v. Greece ([GC], no. 50385/99, §§ 56‑60, ECHR 2004‑XI), as well as, more recently, Aydan v. Turkey (no. 16281/10, §§ 63‑71, 12 March 2013), Guerdner and Others (cited above, §§ 61‑62), and Armani Da Silva v. the United Kingdom ([GC], no. 5878/08, §§ 244‑248, ECHR 2016), which set out all the general principles emerging from its case-law on the use of lethal force.

28. The Court notes from the outset, as did the domestic courts, that it transpires from the results of the investigation that L.M. was armed with a knife throughout the whole series of events. He failed to drop the weapon when the police officers ordered him to do so, and was still bearing it while he pursued J.-P.H., endeavouring to stab him. Moreover, the Court notes that it is undisputed that L.M. subsequently injured the hand of one of the officers, forcing him to abandon the chase. Furthermore, a dagger was also found on L.M.’s belt after the events (see paragraph 14 above).

29. The Court further observes that the investigations showed that one of the police officers fired a warning shot at the beginning of the chase, but that L.M. ignored it, continuing to run after J.-P.H. (see paragraphs 5 and 18 above). Nor did L.M. stop after being hit by a car (see paragraph 6 above). The Court also notes that it transpires from the domestic decisions and the evidence gathered, particularly one witness statement, that L.M. was not in a “normal state”. Having regard to the foregoing considerations, the Court finds that the police officers could legitimately have concluded that L.M. was out of control, relentlessly continuing to run after J.-P.H. despite all their attempts to halt him.

30. Moreover, it transpires from the domestic decisions, which were particularly closely reasoned in the present case, that L.M.’s frenzied conduct undeniably posed an imminent threat to J.-P.H., whose life was in danger: L.M. had threatened him and then run after him armed with a knife, refusing to obey the officer’s orders, ignoring the warning shot, immediately stabbing police sergeant L.L. when he attempted to arrest him, injuring his hand, and resuming his relentless pursuit of J.-P.H. after being hit by a car.

31. In the light of the foregoing considerations, the Court considers that police officer S.T. acted in the honest belief that J.-P.H.’s life was in danger (see, mutatis mutandis, Giuliani and Gaggio, cited above, § 189), being convinced of the necessity of using force (see, mutatis mutandis, Armani Da Silva, cited above, § 248), which allowed him to make use of the appropriate means of defending J.-P.H. It considers that that justified recourse to a potentially lethal means of defence such as the firing of shots (see, mutatis mutandis, Giuliani and Gaggio, cited above, § 191), which was, moreover, preceded by a warning shot. In that connection, the Court reiterates that when called upon to examine whether the use of lethal force was legitimate, the Court, being 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 (ibid., § 179).

32. The Court further observes that police officer S.T. initially fired two shots, which missed L.M., but which nonetheless did not deter him from continuing in pursuit of J.-P.H. with his knife (see paragraphs 6 and 14 above). Furthermore, relying on the further inquiries which it had ordered, the Investigations Chamber ruled that, as regards the subsequent two shots, the police officer had not taken aim, merely seeking to hit the bulk of the body of the person whom he was attempting to arrest, and that those explanations were consistent with the ballistics report. In that context, the Court notes that according to the conclusions of the expert report mentioned by the Investigations Division, the police officer had been at a distance of five metres from L.M. when he had fired the shots. However, it observes that the fatal gunshot was fired while both the policeman and the victim were running full tilt, which significantly reduced the precision of the former’s shot. Finally, the Court observes that it transpires from the same expert report that L.M. had come up within four or five metres from J.-P.H. It concludes from all those circumstances that the police officer’s response was absolutely necessary (see, mutatis mutandis, Armani Da Silva, cited above, § 251) in the light of the very serious imminent danger to J.-P.H.’s life (see, to converse effect, Toubache v. France, no. 119510/15, § 47, 7 June 2018, where human lives had no longer been in danger).

33. In view of L.M.’s attitude, of police sergeant L.L.’s inability to intervene once he had been injured, and of the undeniable imminent danger to J.-P.H., police officer S.T.’s decision to use his firearm, despite the risk of inaccuracy stemming from his pursuit of L.M., could, in the particular circumstances of the case, be deemed absolutely necessary “in defence of any person from unlawful violence” within the meaning of Article 2 § 2 (a) of the Convention (see Giuliani and Gaggio, cited above, § 194).

34. Moreover, the Court considers that the applicant’ allegations concerning the mismanagement of the police operations and the impact of the officers’ arrival on her brother’s behaviour are unsubstantiated. On the contrary, it transpires from the domestic judicial decisions and the witness evidence that it was by no means established that L.M.’s violent acts were attributable to his having felt threatened by the police officers’ actions. In any event, L.M. had been showing an aggressive attitude before the police had arrived on the scene, which had been the reason why the employee of the nearby day nursery had called the police and why the latter had arrived so quickly (see paragraphs 4 and 16 above). The Court considers that the same applies to the applicant’s criticism of the officers’ operational choices and techniques: it was in fact L.M.’s conduct that had led to the police officers’ use of force (see, mutatis mutandis, Lamartine and Others (dec.), no. 25382/12, § 36, 8 July 2014), and now induces the Court to find that that use of force was justified and absolutely necessary in view of the circumstances of the case (see, mutatis mutandis, McCann and Others, cited above, § 200, and Armani Da Silva, cited above, § 251).

35. Finally, as regards the applicant’s allegation that the statutory framework governing the use of firearms was inadequate, the Court notes that Article 122-5 (1) of the Penal Code applicable to the security forces, concerning the justification for legitimate defence, mentions the “need” for defensive action and the “real” nature of the danger, and specifies that the defensive response must be proportionate to the degree of aggression. The Court concludes that even though the terms used are not identical, this provision echoes the wording of Article 2 of the Convention and contains the elements required by the Court’s case-law. It considers that given the circumstances of the present case it cannot be concluded that no appropriate domestic legal framework existed (see, mutatis mutandis, Giuliani and Gaggio, cited above, §§ 212 and 215).

36. It follows that the complaints are manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

B. The procedural limb

37. Relying on Article 2, the applicant submitted that the investigation did not satisfy the requisite conditions of independence and effectiveness.

38. The Court notes, in particular, that the Investigations Division, which carefully studied the applicant’s pleas, set aside the discontinuance decision and ordered further inquiries with an eye to placing S.T. under investigation and subjecting him to further questioning. The Court notes that the police officer’s explanations enabled the Investigations Division to form the conviction that he had used force in a legitimate and proportional manner.

39. Furthermore, it should be emphasised that in the present case such supervision of the proportionality of the use of force was conducted at all three domestic judicial levels.

40. Thus, referring to its finding that the domestic court decisions were particularly closely reasoned in the instant case (see paragraph 30 above), the Court considers that the investigation as a whole was sufficiently effective to determine that the use of lethal force had been justified in the present case (see, mutatis mutandis, Giuliani and Gaggio, cited above, §§ 301 and 309).

41. Moreover, the Court observes that the complaint regarding lack of independence is unsubstantiated. It notes that there is no evidence on file to establish this aspect of the complaint, which, additionally, was not raised before the domestic courts.

42. It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in French and notified in writing on 27 September 2018.

Claudia WesterdiekAngelika Nußberger
RegistrarPresident

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