SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 56558/00
by Mrs Józsefné OLÁH
against Hungary
The European Court of Human Rights (Second Section), sitting on 14 September 2004 as a Chamber composed of
MrJ.-P. Costa, President,
MrA.B. Baka,
MrL. Loucaides,
MrK. Jungwiert,
MrV. Butkevych,
MrsW. Thomassen,
MrM. Ugrekhelidze, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged on 8 November 1999
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mrs Józsefné Oláh, is a Hungarian national, who was born in 1972 and lives in Ózd. She is represented before the Court by Mr I. Furmann, a lawyer practising in Miskolc, who also assists “the Legal Defence Bureau for National and Ethnic Minorities” (hereafter the “NEKI”). The respondent Government are represented by Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice.
A. Particular circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is of Roma origin, as was her late husband, Mr Oláh.
The other person involved in the case, Sergeant L.T. was born in 1970. In 1996 he joined the Budapest VI/VII District Police Department. Following ten months' training, he received his firearm in January 1997.
1. The incident leading to Mr Oláh's death
On 24 July 1997 at around 10.30 p.m. Mr Oláh, accompanied by an accomplice, broke the window of a car parked some fifteen metres from the French Embassy in Budapest and stole the radio.
That night Sergeant L.T. was on guard in front of the Embassy. Having noticed Mr Oláh and his accomplice, he left his sentry-box. Seeing a police officer in uniform approach, Mr Oláh handed the car radio to his accomplice and both men started to run.
Sergeant L.T. ordered them to stop. Mr Oláh and his accomplice looked back but kept running. Sergeant L.T. drew a gun and started to pursue them from a distance of some twenty metres. During the chase, he saw a shiny object in the hand of one of the fugitives. In a nearby street he again ordered them to stop. When they failed to do so, he fired a warning shot. Some time later he again ordered them to stop and fired a second warning shot. After some one hundred metres, Sergeant L.T. lost sight of them. Following a tip-off from an eye-witness (E. B.), Sergeant L.T. went through the gateway to a house in order to search for them.
The gateway opened up onto a yard which was crossed by a path. To the right of the path, there was a garden; the entrance door to the building was located to the left of the path. Mr Oláh hid himself by the entrance door; his accomplice was lying in the garden. The visibility in the yard, which was not lit, was one metre. Sergeant L.T. crossed the path holding his firearm in his right hand. As Sergeant L.T. passed by, Mr Oláh, leaning forward, made a sudden move towards him. Sergeant L.T. stepped aside, turned towards Mr Oláh and – holding his firearm at a height of some 1.2 metres – fired a non-targeted shot at him from a distance of 1.6 metres.
The bullet entered the right side of Mr Oláh's chest between the sixth and seventh rib, in a downward direction. It passed through the liver and exited through the tenth rib, finally lodging itself in the entrance door at a height of 130.5 centimetres.
Mr Oláh collapsed. Sergeant L.T. got his handcuffs ready, but having noticed that Mr Oláh's injuries were serious he decided that it was not necessary to use them. At this point the eye-witness E.B. arrived. Sergeant L.T. asked him to call an ambulance and continued his search for Mr Oláh's accomplice.
The ambulance arrived and transported Mr Oláh to the National Institute for Traumatology at 11.21 p.m. where he underwent surgery. On 26 July 1997 he died due to circulatory and respiratory failure caused by haemorrhagic shock.
2. Administrative proceedings
Meanwhile, on 24 July 1997 at 11.30 p.m. the police inspected the scene of the incident and arrested Mr Oláh's accomplice who was still hiding in the grass. Outside the house where the incident took place, they found the two spent cartridges from the warning shots; the spent cartridge from the lethal shot was found in the yard, as was the stolen radio.
On 25 July 1997 Sergeant L.T. reported the events to the Head of the Budapest VI/VII District Police Department. He maintained that, during the chase and, again, immediately before firing the lethal shot, he had seen a shiny object in Mr Oláh's hand. He had perceived the latter's sudden move away from the door towards him as an attack, probably with a knife. He further deposed that he had intended to shoot Mr Oláh in his thigh in self-defence.
Subsequently, administrative proceedings were instituted against Sergeant L.T. with a view to examining the lawfulness of his use of his weapon. The opinion of a forensic weapons expert was also obtained. On 28 July 1997 the Head of the District Police Department discontinued these proceedings on the ground that “according to the information obtained, the police officer had used his firearm lawfully and professionally”. In the decision, it was established that although Sergeant L.T.'s shot had been aimed at Mr Oláh's thigh, Mr Oláh had in fact been hit on the trunk, because he had been in the act of descending the stairs leading from the entrance door.
On 5 August 1997 the applicant, represented by Mr Furmann, lodged a complaint challenging the administrative decision. In reaction to this complaint, the Budapest Police Department suspended the proceedings pending the outcome of the criminal proceedings initiated against Sergeant L.T. (see below). Following Sergeant L.T.'s acquittal, the District Police Department discontinued the administrative proceedings on 21 February 2000. The applicant was informed of this decision.
Subsequent to Mr Oláh's death, a second administrative procedure was opened in order to establish the circumstances of the death. On 30 July 1997 an autopsy was carried out by two forensic pathologists. On 2 September 1997 the Budapest V District Police Department discontinued the proceedings, having regard to the competent authority's conclusion that Sergeant L.T.'s use of his firearm had been lawful and to the finding that there was no appearance of any medical negligence in the treatment administered to Mr Oláh. The applicant was informed of this decision.
3. Criminal proceedings
Subsequently, criminal proceedings were instituted against Sergeant L.T. on a charge of homicide. On 1 August 1997 Mr Furmann requested the Investigation Office of the Budapest Regional Public Prosecutor's Office to inform him about the state of these proceedings. On 5 August 1997 Mr Furmann submitted to the Budapest Investigation Office a power of attorney signed by Mr Oláh's mother.
Meanwhile, a reporter and a cameraman from Hungarian Television who had been working at the scene of the incident on 24 July 1997 submitted a video and an audiotape recording of a conversation with Mr Oláh's accomplice about a knife found lying on the ground nearby. Both men were heard as witnesses on 1 and 11 August 1997, respectively.
Two further witnesses were heard on 15 September 1997. One of them (E.B.) was the eye-witness who had given the tip-off to Sergeant L.T. and had been asked by Sergeant L.T. to call an ambulance; the other (Z.K.) lived in the house where the incident occurred.
On 29 September 1997 Mr Furmann submitted two expert opinions which had been prepared at the request of the NEKI.
On 30 September 1997 the Investigation Office appointed a forensic medical expert who submitted his opinion on 15 October 1997.
On 8 October 1997 the Investigation Office appointed a forensic weapons expert who submitted his opinion on 27 October 1997. The opinion was based on an on-site demonstration.
On 14 October 1997 the National Ambulance Service deposed that it had been called at 10.39 p.m. on the evening of the incident. On 29 October and 3 November 1997 the ambulance driver, the doctor and her assistant were heard as witnesses.
On 3 November 1997 Mr Oláh's accomplice failed to appear at the Investigation Office where he was to be heard as a witness. He was eventually heard on 22 January 1998.
On 19 November 1997 Sergeant L.T. was questioned by the Investigation Office as a suspect.
A further on-site demonstration, attended by Mr Furmann, was held at 10.10 p.m. on 9 December 1997 in order to check the visibility conditions.
On 30 December 1997 the National Service of Meteorology submitted information on the visibility conditions at the time of the incident.
On 10 March 1998 Mr Furmann again requested information about the proceedings. On 19 March 1998 he was informed that the investigation had been completed and that the case had been transferred to the Budapest Public Prosecutor's Office.
On 6 May 1998 the Public Prosecutor's Office preferred a bill of indictment against Sergeant L.T. charging him with homicide.
On 8 July 1998 the Regional Court heard Sergeant L.T., a witness (Z.K.), the ambulance doctor, the cameraman and the forensic weapons expert. Mr Furmann had not been notified in advance of this hearing. On the same day Mr Furmann sent a letter to the presiding judge requesting that he be notified about the date of the next hearing. In his reply the presiding judge dismissed the request on the ground that Mr Furmann and his client, Mr Oláh's mother, could not be regarded as a party to the criminal proceedings in accordance with sections 53, 55 and 57 of the Code of Criminal Procedure.
Nevertheless, the judge informed Mr Furmann of the dates of the subsequent hearings.
At 12.10 p.m. on 13 July 1998 the Regional Court conducted an on-site inspection of the scene of the incident.
The next hearing was held on 28 September 1998. The reporter, another journalist, the eye-witness E.B., four police officers and Mr Oláh's accomplice were heard as witnesses.
Another hearing was held on 23 November 1998. On that occasion four police officers and the ambulance assistant were heard as witnesses.
At the next hearing on 11 December 1998 the forensic medical expert and the weapons expert were heard. The parties presented their closing arguments. The public prosecutor proposed that Sergeant L.T. be acquitted by virtue of section 29(2) of the Criminal Code. He argued that the defendant should not be punished because he had been acting lawfully in self-defence even though he had exceeded the necessary force (elhárítás szükséges mértékének túllépése) in the circumstances. According to the public prosecutor, Sergeant L.T. could not have assessed properly the situation with which he was confronted on account of his fear and, given the circumstances, his over-reaction was justified. The public prosecutor however observed that the lawfulness of the use of a firearm in itself did not preclude the commission of a crime and referred to sections 15(1) and 17(2) of the Police Act in this connection.
Counsel for the defence pleaded that Sergeant L.T should be acquitted primarily on the ground of the absence of any danger to society and hence the absence of a crime or, alternatively, by reason of lawful self-defence.
On the same date the Regional Court acquitted Sergeant L.T., applying section 10(2) of the Criminal Code. The court found it impossible to determine whether Mr Oláh had been armed at the time of the incident. In particular, it remained unclear whether Mr Oláh or his accomplice had had an object in their hands and, if so, whether that object had been a knife, the stolen radio or an object which the offenders had been using to smash the car window. The court observed that the knife apparently found during the inspection of the scene had been lost and could no longer be located in police storage.
Moreover, the court, relying on the opinions of the weapons expert and the two forensic pathologists, considered it proven that Mr Oláh had been shot while leaning or moving forward, rather than standing or hiding. Given that it was almost completely dark at the time of the incident, the court accepted that Sergeant L.T. could not properly decipher Mr Oláh's intention when the latter moved towards him.
The Regional Court was satisfied that the defendant's action did not constitute a crime. Under sections 52(1) and 54(k) of the Police Act, he had been free to use his gun to avert an attack directed against his life or bodily integrity. His action had therefore not been “materially illegal” (materiális jogellenesség), that is, dangerous to society. In these circumstances, no criminal act had been committed – a conclusion which allowed the court to dispense with the examination of the question of self-defence, in particular whether it was lawful self-defence or excessive.
The public prosecutor appealed against this judgment, requesting that the defendant be acquitted under section 29(2) of the Criminal Code. Subsequently, the public prosecutor withdrew the appeal. Consequently, on 1 June 1999 the Regional Court's judgment became final.
On 8 January 1999 Mr Furmann requested a copy of the Regional Court's judgment. On 13 October 1999 Mr Furmann, submitting a power of attorney signed by the applicant on 1 October 1999, requested a copy of the case file from the Regional Court. He stated that the case file was needed in order to introduce an application with the European Court of Human Rights. On 20 October 1999 the Regional Court dismissed Mr Furmann's request on the ground that the applicant had not been a party to the criminal proceedings. On 2 November 1999 Mr Furmann appealed against this decision. He relied on the Convention and made references to the Court's case-law under Article 6 on the principle of equality of arms in criminal proceedings.
On 6 December 1999 the Supreme Court dismissed the appeal holding that there was no connection between the cases referred to and the applicant's request for a copy of the case file. It was satisfied that the rejection of the request did not hinder the applicant's exercise of her right to lodge an application with the European Court of Human Rights.
B. Relevant domestic law
Act IV of 1959 on the Civil Code
Section 349
(1) Liability for damage caused in the sphere of State administration shall be established only if the damage could not have been be prevented by ordinary legal remedies or if the injured party has had recourse to ordinary legal remedies appropriate for preventing the damage.
(3) These rules shall also apply to liability for damage caused in the judicial and prosecution spheres, unless otherwise provided by statute.
Act IV of 1978 on the Criminal Code
Section 29 (Lawful defence)
(1) Any person who does an act which is necessary in order to prevent an unlawful attack against himself or another person, his own goods, or those of other persons, or against the public interest, or an unlawful attack directly threatening the above, shall not be liable to punishment.
(2) A person shall not be punished either if he exceeds the necessary measure of prevention because he is unable to appreciate it due to fear or justifiable excitement (menthető felindulás).
(3) The punishment may, without limitation, be mitigated if the perpetrator is restricted in appreciating the necessary degree of prevention through fear or justifiable excitement.
Section 10 (The criminal act)
(1) A criminal act is an act perpetrated intentionally or – if the law also punishes negligent perpetration – by negligence, which is dangerous to society and in respect of which the law imposes punishment.
(2) An act or omission shall be deemed an act of danger to society if it violates or endangers the State, the social or economic order of the Republic of Hungary, a person or the rights of citizens.
Act XXXIV of 1994 on the Police
Section 15 (Requirement of proportionality)
(1) The actions of the police shall not be such as to cause prejudice which is clearly disproportionate to the legitimate aim of the action.
(2) If there exists several possible and appropriate actions or coercive measures in a given situation, the act or measure chosen should be the one which, besides ensuring efficiency, entails the least restriction, injury or damage to the person concerned.
Section 17
(2) During police actions, in the application of coercive measures, the infliction of injuries or deprivation of life should be avoided as far as possible. ...
Section 54
A police officer may use his firearm: ...
(k) in order to avert an attack directed against his own life, bodily integrity or personal freedom.
Act I of 1973 on the Code of Criminal Procedure (as in force in the relevant period)
Section 53
(1) A victim is a party whose rights or lawful interests have been infringed or endangered by the offence.
(2) The victim:
(a) may be present at any procedural acts carried out during the investigation, provided that the victim's presence is permitted by this Act, or during the trial, unless this Act states otherwise;
(b) may have access to documents concerning him/her after the conclusion of the investigation,
(c) may, at any stage of the proceedings, file motions or observations, and request information on his/her procedural rights and obligations,
(d) may submit questions to be put to those heard at the hearing and may take the floor.
Section 55
(1) A civil party is a victim who files a civil-law claim for determination in the criminal proceedings.
(5) In the event of the victim's death, his/her heir may become a civil party. However, the rights set out in section 53 will be applicable only in relation to the proof of the civil-law claim.
Section 215
(1) If possible, the court shall decide on the merits of the civil-law claim in the judgment or decision terminating the criminal proceedings. If this procedure delays the criminal proceedings significantly, the court may redirect the civil-law claim to other courts.
Joint Decree No. 4 of 1991 of the Minister of Justice and the Minister of the Interior on issuing copies of documents from criminal case-files
Section 1
(1) Copies of documents from the criminal case-files shall be issued to the ... civil party ... and his/her representative at their request.
COMPLAINTS
The applicant complains under Articles 2 and 3 of the Convention that her husband died as a consequence of the unlawful and unprofessional action of Sergeant L.T. She submits that the use of the firearm was unjustified, that Sergeant L.T.'s failure to provide first-aid to Mr Oláh was inhuman and aggravated the latter's condition, and that the investigation into the incident was ineffective.
The applicant also complains that she had no effective remedy at her disposal relating to her complaint under Article 2. In particular, she submits that although she was able to participate in the preliminary investigation she could only have taken part in Sergeant L.T.'s trial had she joined the proceedings as a civil party. She relies on Articles 6 and 13 of the Convention.
Furthermore, the applicant, relying on Article 14 of the Convention, alleges that her husband's death and the lack of any effective investigation reflect the general prejudice among police officers vis-à-vis members of the Roma minority.
Lastly, the applicant claims that the Regional Court's refusal to provide her lawyer with a copy of the case file hindered the effective exercise of her right of individual petition to the Court, in breach of Article 34 of the Convention.
THE LAW
1. The applicant complains that Sergeant L.T.'s use of his firearm against her husband was unjustified, that Sergeant L.T.'s subsequent failure to provide first-aid to him was inhuman and contributed to his death, and that the investigation into the incident was ineffective. She relies on Articles 2 and 3 of the Convention.
The Court considers that these complaints fall to be examined under Article 2 of the Convention alone, which provides as relevant:
“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. ...”
1. Exhaustion of domestic remedies
The Government submit that the applicant has not exhausted the domestic remedies available to her, as required by Article 35 § 1 of the Convention, which provides as relevant:
“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ...”
The Government point out that the applicant did not formally take part in the criminal proceedings against Sergeant L.T. prior to 1 October 1999.
In fact, the applicant could have intervened in those proceedings as a civil party, and this would have enabled her to influence the outcome of the case by submitting arguments, evidence or procedural motions, and to have access to the case file (cf. sections 53 and 55 of the Code of Criminal Procedure).
Moreover, the applicant failed to file an official liability action under section 349 of the Civil Code in order to claim damages against the police. Had she done so, she could have put forward her arguments in support of her allegation that Mr Oláh's death resulted from the unprofessional conduct of Sergeant L.T.
The applicant submits that, up to 1 October 1999, her lawyer operated by virtue of an authority signed by Mr Oláh's mother. In any event, neither the mother nor the wife of the deceased victim had locus standi in the criminal proceedings against Sergeant L.T. Moreover, the rights of a civil party were very restricted (cf. section 55 § 5 of the Code of Criminal Procedure). In practice, civil-law claims are hardly ever the subject of a decision in criminal proceedings (cf. section 215 § 1 of the Code of Criminal Procedure). Accordingly, as a civil party she could not have influenced the outcome of the criminal proceedings to any significant extent. Consequently, the fact that she never intervened in the proceedings as a civil party was irrelevant from the standpoint of exhaustion of domestic remedies.
As regards the possibility to file an official liability action, the applicant stresses that in cases where State agents used lethal force against an individual, the State's duty to investigate the case of its own motion dispenses an applicant from pursuing a more cumbersome and less effective civil remedy.
The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see Aksoy v. Turkey, no. 21987/93, §§ 51-52, ECHR 1996-VI, and Akdivar and Others v. Turkey, no. 21893/93, §§ 65-67, ECHR 1996-IV).
The Court emphasises that the application of the rule of exhaustion of domestic remedies must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting States have agreed to set up. Accordingly, it has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see the aforementioned Akdivar and Others judgment § 69, and the Aksoy judgment §§ 53 and 54).
In the present case, the Court observes that the facts surrounding the killing of the applicant's husband were examined in the context of two procedures, an administrative inquiry and criminal proceedings against Sergeant L.T., the latter having been terminated by the judgment of – and containing findings of fact made by – a court of law.
The Court is hesitant to attribute decisive importance to the applicant's non-application for the status of civil party in the criminal proceedings against Sergeant L.T. Notwithstanding the possibilities which sections 53 and 55 of the Code of Criminal Procedure may afford the family of a victim of an allegedly unlawful killing by an agent of the State to participate in the criminal investigation and the subsequent trial, the onus is still on the authorities to discharge the procedural obligations which devolve on them by virtue of Article 2 (for which, see below). For this reason, the Government's objection must fail. While Article 2 requires the involvement to the appropriate degree of the deceased's family in this process (see Hugh Jordan v. the United Kingdom, no. 24746/94, § 109, ECHR 2001-III), the latter's participation does not of itself discharge the procedural obligation.
Similarly, as regards the official liability action which the applicant was apparently unwilling to file, the Court considers that while civil proceedings would provide an additional judicial forum, with the ability to reach findings of unlawfulness and with the possibility of an award of damages, it is a procedure undertaken on the initiative of the applicant, not the authorities, and it does not involve the identification or punishment of any alleged perpetrator. As such, it cannot be taken into account in the assessment of the State's compliance with its procedural obligations under Article 2 of the Convention (see, mutatis mutandis, Hugh Jordan v. the United Kingdom, op.cit., § 141; McShane v. the United Kingdom, no. 43290/98, § 125, 28 May 2002). Nor can it be regarded as an effective remedy to be exhausted in the circumstances.
It follows that the application cannot be rejected for non exhaustion of domestic remedies.
2. The Government's arguments on the merits
As to the substantive aspect of Article 2, the Government rely in essence on the reasoning of the Regional Court acquitting Sergeant L.T., according to which the defendant's act did not constitute a crime since he had been authorised by law to use his gun in order to avert an attack directed against his own life or bodily integrity.
Concerning the procedural limb of Article 2, the Government argue that the obligation to conduct an effective official investigation has been fulfilled in the present case. Firstly, the administrative proceedings established, based on the autopsy, that the death had been caused by circulatory and respiratory failure resulting from haemorrhagic shock. Subsequently, an official criminal investigation was instituted to establish the circumstances of the incident leading to Mr Oláh's death and Sergeant L.T.'s responsibility for that. The investigation was carried out by the Investigation Office of the Budapest Public Prosecutor's Office, a body independent of the police. Several witnesses were interviewed including an eye-witness, journalists, the ambulance staff, the accomplice and the police officers involved in the inspection of the scene of the incident. Moreover, two experts were appointed. The Investigation Office carried out two on-site demonstrations and obtained information from the National Ambulance Service and the National Service of Meteorology. Following Sergeant L.T.'s indictment, the Regional Court held five hearings (including an on-site hearing) and delivered its judgment based on the evidence obtained from the experts and the witnesses, who were heard again in court.
3. The applicant's arguments on the merits
As regards the substantive aspect of Article 2, the applicant emphasises that Sergeant L.T. acted against Mr Oláh, who was unarmed, in a manner which was irreconcilable with police-service regulations and his use of force exceeded what was absolutely necessary in the circumstances. After having shot him, Sergeant L.T. noticed that Mr Oláh's injuries were serious, but he failed to provide first-aid.
As to the procedural aspect of Article 2, the applicant stresses that the administrative proceedings aimed at establishing the lawfulness of the use of the firearm were terminated after three days, even before the autopsy had taken place. Moreover, the competent authority found, relying essentially on Sergeant L.T.'s own report, that the latter's conduct was lawful. The subsequent court proceedings also proved to be deficient in that the proportionality test was not applied.
4. The Court's assessment
a. General principles
Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which no derogation is permitted. Together with Article 3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The circumstances in which deprivation of life may be justified must therefore be strictly construed. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 45-46, §§ 146-147).
In the light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Any use of force must be no more than “absolutely necessary” for the achievement of one or more of the purposes set out in the provision. This term indicates that a stricter and more compelling test of necessity must be employed from that normally applicable when determining whether State action is “necessary in a democratic society” under paragraphs 2 of Articles 8 to 11 of the Convention. Consequently, the force used must be strictly proportionate to the achievement of the permitted aims (McCann and Others judgment, cited above, §§ 148-149).
Furthermore, the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others judgment, cited above, p. 49, § 161, and Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, p. 324, § 86). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. This investigation should be independent, accessible to the victim's family, carried out with reasonable promptness and expedition, effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances or otherwise unlawful, and afford a sufficient element of public scrutiny of the investigation or its results (see, Hugh Jordan v. the United Kingdom, cited above, §§ 105-109).
b. Application in the present case
i. Substantive aspect of Article 2
It is to be noted at the outset that Sergeant L.T. received his firearm after ten months' training. At the time of the incident, he was on duty. He started to chase Mr Oláh and his accomplice, who had both been caught in the act of committing an offence. Despite his repeated warnings and the firing of warning shots, the offenders refused to surrender. They finally hid in a yard, in almost complete darkness. In the event, there was no evidence to support Sergeant L.T.'s impression that Mr Oláh was armed. However, the Court does not consider his impression to have been unreasonable in the circumstances. Moreover, the forensic examinations showed that Mr Oláh was shot while leaning or moving forward, which Sergeant L.T. could have plausibly perceived as an imminent attack on his life. The Court, like the domestic authorities, sees no reason to doubt that Sergeant L.T. honestly believed that his life was in danger and that it was necessary to open fire on Mr Oláh in order to protect himself. The Court notes in this respect that the use of force by agents of the State in pursuit of one of the aims delineated in paragraph 2 of Article 2 of the Convention may be justified under this provision where it is based on an honest belief which is perceived, for good reasons, to be valid at the time but subsequently turns out to be mistaken. To hold otherwise would be to impose an unrealistic burden on the State and its law-enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and the lives of others (see the Andronicou and Constantinou, judgment of 9 October 1997, Reports 1997-VI, § 192).
The Court would add in this connection that, detached from the events at issue, it 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 to his life (see, mutatis mutandis, Andronicou and Constantinou, cited above, § 192). For the Court, the use of lethal force in the circumstances of this case, albeit regrettable, was not disproportionate and did not exceed what was absolutely necessary for the purposes of defending the life of Sergeant L.T. from unlawful violence.
The Court is further satisfied that the provisions of the domestic law concerning the use of firearms by the police cannot be considered to be in contradiction with the principles flowing from Convention or the Court's case-law.
ii. Procedural aspect of Article 2
In this connection, the Court observes that, immediately after the incident, the authorities first opened administrative proceedings in order to investigate the circumstances of the death of the applicant's husband. These proceedings involved the obtaining of the opinion of a forensic weapons expert and the carrying out of an autopsy. The conclusion reached was that Sergeant L.T. had used his firearm lawfully and that Mr Oláh's death was in no way attributable to medical negligence. The applicant was informed of the decisions taken.
Subsequently, criminal proceedings were instituted against Sergeant L.T. on a charge of homicide. An authority independent of the police, namely the Investigation Office, carried out the preliminary investigation. Subsequently, Sergeant L.T. was indicted and the case file was transferred to the Regional Court. This court held several hearings, heard witnesses including the victim's accomplice, and examined the opinions of a forensic pathologist and the weapons expert. It obtained information from the National Ambulance Service and the National Service of Meteorology. Furthermore, an inspection of the scene of the incident was organised. Based on the evidence collected, the court eventually acquitted Sergeant L.T. since it was concluded that no criminal act had been committed.
It is to be noted that the applicant was not a party to the proceedings before the Regional Court because she chose not to participate as a civil claimant.
It is true that the Regional Court did not expressly ask itself whether the force used was strictly proportionate in the circumstances. However, and for the reasons given earlier, the Court is satisfied that the domestic court approached the case in accordance with the requirements of the Court's own case-law in this area (cf. Caraher v. the United Kingdom (dec.), no. 24520/94, ECHR 2000‑I, p. 385).
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.
2.The applicant complains that she had no effective remedy at her disposal as regards Mr Oláh's death. She relies on Articles 6 and 13 of the Convention.
Article 6 § 1 provides as relevant:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by an independent and impartial tribunal...”
Article 13 of the Convention reads:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Court reiterates that Article 6 § 1 of the Convention applies to a civil claim for compensation by the near relatives of a person who has been killed by an agent of the State. It notes that the applicant could have taken a civil action against the police (an official liability action under section 349 of the Civil Code). It does not consider that such an action would have been doomed to failure in the light of the conclusion reached by the Regional Court on the issue of criminal liability of Sergeant L.T. The civil judge would have approached the applicant's civil complaint from the standpoint of the civil standard of proof and would not have necessarily regarded the Regional Court's findings as binding for the civil claim. It would further observe that there was no impediment to the establishment of the facts of the case, having regard to the exhaustive investigations carried out by the domestic authorities into all the circumstances surrounding the fatal shooting (compare and contrast, for example, Kaya v. Turkey, judgment of 19 February 1998, Reports 1998‑I, pp. 329 to 331, §§ 104 to 108; Yaşa v. Turkey, judgment of 2 September 1998, Reports 1998‑VI, pp. 2441 to 2442, §§ 112 to 115). It reiterates its own finding that there had been a thorough, effective and independent investigation in this case, which was entirely in line with the respondent State's procedural obligation under Article 2.
It would also add that the applicant could have joined the criminal proceedings as a civil party. She chose not to do so. In these circumstances the Court considers that it is not possible for it to speculate on the applicant's claim that the court trying Sergeant L.T. would not have adjudicated on her civil claims.
Having regard to this finding, the Court must also conclude that the applicant had an effective remedy for the purposes of Articles 6 and 13 of the Convention.
It follows that this part of the application is likewise manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.
3.The applicant alleges that her husband's death and the lack of an effective investigation into the circumstances of his death reflect the general prejudice among police officers vis-à-vis members of the Roma minority. She relies on Article 14 read in conjunction with Article 2 of the Convention.
Article 14 provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The Court observes that it does not appear that the applicant pursued any formal domestic remedy in respect of this complaint. In any event, it considers, having regard to all the materials in the case file, that there is no substantiation of the applicant's allegation that she or her late husband were discriminated against in the enjoyment of any of the Convention rights invoked.
It follows that this part of the application is likewise manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.
4.Lastly, the applicant complains that the Regional Court's refusal to order that a copy of the case file be given to her lawyer amounted to a hindrance of the effective exercise of her right of individual petition to the Court, in breach of Article 34 of the Convention.
Article 34 reads:
“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
The Court recalls that it is of the utmost importance for the effective operation of the system of individual petition guaranteed under Article 34 of the Convention that applicants or potential applicants should be able to communicate freely with the Convention organs without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see the Akdivar and Others judgment, cited above, p. 1219, § 105; the Aksoy judgment cited above, p. 2288, § 105; and the Kurt v. Turkey judgment of 25 May 1998, Reports 1998-III, p. 1192, § 159). In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a Convention remedy. In the present case, however, the Court finds no appearance of any such pressure being exerted (compare and contrast, the McShane v. the United Kingdom judgment, cited above, §§ 147 to 149). Moreover, the Court observes that, had the applicant chosen to be represented at Sergeant L.T.'s trial as a civil party, she would have had access to the case file, pursuant to section 1(1) of Joint Decree No. 4 of 1991 of the Minister of Justice and the Minister of the Interior.
It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
S. DolléJ.-P. Costa
RegistrarPresident
Full & Egal Universal Law Academy