Nika v. Albania

Legal summary

November 2023

Nika v. Albania - 1049/17

Judgment 14.11.2023 [Section III]

Article 2

Article 2-1

Life

Effective investigation

Article 2-2

Use of force

Unjustified use of lethal force by State agents during a political protest resulting in the death of applicants’ relative from a gunshot wound and ineffectiveness of the ensuing investigation: violation

Facts – The applicants are the wife and daughters of A.N., who died of a gunshot wound in the head that he suffered on 21 January 2011 during a protest organised by the main opposition party in front of the Albanian Prime Minister’s office. After the situation degenerated, several National Guard officers started using their firearms, firing with blank but also live bullets. Three other protesters were also killed and several protesters and officers of the National Guard and the police were injured. A criminal investigation was opened into the events and two of the suspects, National Guard officers, were found guilty of negligent manslaughter in respect of two of the victims. A.N.’s case was severed from the rest of the criminal investigation and is still ongoing.

The applicants brought compensation proceedings and were awarded damages. The first-instance Administrative Court held that the officers of the National Guard had used their weapons in violation of the domestic legislation in force at the time. It concluded that the State authorities had been responsible for A.N.’s death.

Law – Article 2:

(a) Procedural limb –

(i) General shortcomings in the early stages of the criminal investigation – Although the authorities had reacted promptly, opening an investigation on the same day of the incident, there had been the following general shortcomings in the early stages:

– Senior officials had made hasty public statements that the victims had been shot at close range with weapons different from those used by the National Guard and the police. Those raised doubts as to whether the executive authorities had been committed from the outset to shedding full light on the serious events and to not diverting or interfering inappropriately with the criminal investigation.

– The General Prosecutor had been harshly criticised by the then Prime Minister as well as by a parliamentary committee of inquiry that had been established in parallel with the ongoing criminal investigation to inquire into alleged abuses committed by the prosecutors investigating the events (and not for the purpose of elucidating the facts and possible State responsibility). Those actions, seen in their overall context, must have had a negative impact on the effectiveness of the investigation, particularly because of their potential to dissuade witnesses from cooperating.

– Although arrest warrants had been issued within a few hours of the incident in respect of six National Guard officers, they had not been executed, allegedly on account of administrative defects. That had led to an eighteen-day delay in the suspects’ questioning, resulting in loss of precious time and the opportunity to minimise any chance of collusion or distortion of the truth. No explanation was provided as to why the various authorities involved had not cooperated to resolve the alleged defects and to execute the warrants swiftly.

– There had been a lack of expedition and diligence providing the prosecutors with the video recordings of the incident and a failure by the prosecutors to seize those recordings immediately after it. A large part of those recordings, saved in an external drive that had been in the server room of the Prime Minister’s Office, had been erased in the immediate aftermath of the incident. Doubts as to whether their deletion might have been deliberate and effected for the purpose of concealing the truth had not been dispelled in proceedings brought against an information technology officer of the Prime Minister’s office, which had not determined the precise circumstances and the identity of the person(s) who had ordered and carried out the deletion of the recordings. The authorities had been under an obligation to keep them intact and safe from any third-party interference.

(ii) Failure to adequately investigate the possible responsibility for the turn of events on the part of the commanders on the ground – The authorities had failed to seriously and adequately pursue certain key lines of inquiry. In particular, they had failed to investigate the possibility that the demonstrators, including A.N., had been directly targeted; the extent to which the commanding officers had been responsible for the turn of events; to systematically analyse the forensic characteristics of the gunshot wounds sustained by demonstrators who had suffered non-lethal injuries; and to account for the large number of marks left by projectiles found, at human height level, on the building’s metal fence where much of the violent confrontation had taken place. Further, no exact chronology of the events had been established, including the sequence and nature of the orders given by the National Guard’s commanders on the ground and the precise moment at which the various victims, including A.N., had been shot and the locations in which they had been standing.

Nor had there been an inquiry of any kind to determine whether there had been any failure in regard to the planning, coordination and execution of the State agents’ duties. Such a detailed inquiry could have shed light on whether additional factors had played any role in the events leading to the loss of life on that day and drawn conclusions that would have helped to prevent similar incidents from occurring in the future.

(iii) Specific shortcomings in respect of the investigation into A.N.’s death – The Government had not responded to the applicants’ allegation that a forensic examination had been carried out in respect of the bodies of the other victims but not A.N. or provided documents clarifying what examinations they had requested be performed on his body. An expert report on A.N.’s wounds, which had been produced several years after his death, had relied on earlier medical reports and records and not on an examination of his body. Furthermore, in the absence of any evidence by the Government to the contrary, the Court found that the applicants had not been involved in the procedure to the extent necessary to safeguard their legitimate interests. Indeed, a number of their questions had remained unanswered to date.

(iv) Conclusion – In view of all the above, the investigation could not be regarded as an effective one capable of leading to the identification and punishment of those responsible for the alleged events and of establishing the truth. The Government’s objection, which had been joined to the merits of the procedural aspect, as to non-exhaustion of domestic remedies because of ongoing investigation, was therefore dismissed.

Conclusion: violation (unanimously).

(b) Substantive limb –

(i) Whether the respondent State took the necessary legislative, administrative and regulatory measures to reduce as far as possible the adverse consequences of the use of force – One of the justifications put forward by the authorities for the use of firearms had been the protection of the Prime Minister’s Office. The Court found it problematic that, at the material time, the legal provisions regulating the use of firearms had allowed their use for the protection of property without providing any further details as to the kind of exceptional circumstances in which such use might be justified. Although the use of firearms for the protection of property in public places where there were gatherings of people had been restricted by some safeguards, Article 2 did not allow the use of lethal force for the protection of property as such. To the extent that it could not be completely excluded that the use of lethal force for the protection of property might be justified in some exceptional circumstances, such circumstances had to be clearly defined. In that connection, the Court noted that the law had since been amended to include the condition that the lives of the personnel defending that object (or the lives of other persons) were clearly at risk.

Furthermore, the laws in question had not provided for an oral warning and the firing of a warning shot in the air before shots were fired directly at people.

(ii) Whether the use of lethal force was justified – The Court accepted the Administrative Court’s conclusions that the State had been responsible for A.N.’s death as well as the Government’s acknowledgement of State responsibility in that regard due to use of disproportionate lethal force by National Guard officers. However, neither had provided details as to the circumstances that had led to A.N.’s death and the acts or omissions on the part of State agents that had given rise to State responsibility under Article 2. In view of the Administrative Court’s finding that the National Guard officers had used their weapons in a manner that had been in violation of domestic law and of the State’s responsibility for A.N.’s death as the authorities had “failed to take all necessary measures to avoid the loss of life of the deceased”, the Court proceeded on the basis that A.N. had been killed as a result of the use of firearms by National Guard officers.

The assessment of the facts by the Court of Appeal in the context of the criminal proceedings against the National Guard officers had been limited and had not yielded a full account of the circumstances that had preceded the use of deadly force. There had also been no discussion at the domestic level of whether greater use of non-lethal means of crowd dispersal could have been made. A water cannon and tear gas had been used only once, and the Government had not provided any explanation in that regard.

The Government had accepted that the use of lethal force had not been legitimate. It had not been established that at the time when live bullets had been fired the relatively small group of violent protesters had presented a serious and immediate danger to any person and there had been no indication that there had been an immediate and real risk for persons in the building or any other persons. The Court could not accept the argument that in the circumstances the defence of a building constituted a legitimate ground for the use of lethal force.

Moreover, it had never been alleged that A.N. had presented any serious threat to National Guard personnel or to the guarded premises - indeed, he had been standing on the sidewalk across the boulevard opposite the building - and there was no indication that he had been involved in any violent acts. Even if the Court accepted that the officers had only fired warning shots in the air, it had not been shown that that had been carried out in an Article 2 compliant manner. Warning shots must be fired into the air, with the gun almost vertical, to ensure that the target was not hit. That was even more essential in the instant case as it had concerned a demonstration attended by numerous persons, and any negligent action on the part of the national guard officers in using firearms might have had a fatal result. It was accordingly difficult to imagine that firing into the air at a prudent angle could have hit A.N. standing at the street level in the head, even by ricochet. Consequently, even supposing that A.N. had been killed by a bullet fired into the air, the firing of that shot had been badly executed; no care had been taken to minimise to the greatest extent possible any risk to the lives of non-violent bystanders, to the point of constituting gross negligence.

(iii) Whether the organisation and planning of the policing operations were compatible with the obligation to protect life arising out of Article 2 of the Convention – There had been serious failings in that regard, despite the fact that the authorities had had sufficient time to prepare, as the event had been announced several days in advance and written notice about its organisation, the gathering points of the protesters and their itinerary had been submitted to the police. It further appeared that there had not been precise and clear instructions on the use of lethal force and as to specific crowd-control measures or adequate prior coordination in respect of those two factors between the National Guard and the police. The quantities of tear gas available and the presence of one water cannon had clearly been insufficient to disperse the crowd without recourse to potentially lethal measures. The regular police had not been equipped with tear-gas masks, so that they had to retreat and leave the National Guard units to handle all crowd control measures on their own. There had also not been a clear chain of command; its absence by its very nature would have increased the risk of some police officers shooting erratically. The possibility that no appropriate orders had been given by the commanders on the ground in such a volatile situation had also raised questions about the adequacy of the planning and the direct handling of the operation. Additionally, the oral warning that had been given prior to the use of firearms, potentially lethal weapons, had been vague, imprecise and inadequate.

(iv) Conclusion – The use of lethal force by National Guard officers which had resulted in A.N.’s death had not complied with the strict requirements of Article 2. There had been deficiencies in the legal framework governing the use of potentially lethal weapons in connection with crowd-control operations in general, serious defects in the planning and control of the event under examination, and a failure to demonstrate that the use of deadly force by the National Guard officers had been absolutely necessary, given the circumstances. Indeed, the respondent Government had accepted that such a use of force had been disproportionate.

Conclusion: violation (unanimously).

Article 41: no claim made.

Article 46: The Court abstained from formulating general measures, noting that the domestic laws regulating the use of firearms had in the meantime been amended prohibiting shooting in the air as a means of crowd dispersal. As regards individual measures, the Court, noting that the criminal investigation was still open, considered that the authorities should continue (in so far as that proved feasible) their efforts aimed at elucidating the circumstances of A.N.’s death, and at identifying and punishing those responsible, where appropriate.

(See also Giuliani and Gaggio v. Italy [GC], 23458/02, 24 March 2011, Legal Summary)

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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