Information Note on the Court’s case-law No. 80
November 2005
Ramsahai and Others v. the Netherlands - 52391/99
Judgment 10.11.2005 [Section III]
Article 2
Article 2-1
Life
Effective investigation
Shooting by police officer during an attempted arrest, and effectiveness of the investigation: no violation; violation
[This case was referred to the Grand Chamber on 12 April 2006]
Facts: The applicants are the grandparents and father of a young man who was shot dead by a policeman. The facts of the case, as established by the Court on the basis of official documents submitted to it, are as follow. In the evening of 19 July 1998, the applicants’ relative forced the owner of a scooter at gunpoint to give up his vehicle. The theft was reported to a pair of unarmed surveillants by the owner of the scooter. The three of them then set off in pursuit. However, as the scooter was too fast for them to catch, the surveillants reported the theft to the local police station. Apparently the surveillants did not know that the applicants’ relative had a gun; had they known, being unarmed themselves they would not have gone after him and they would certainly have warned their colleagues. Two police officers who were in the vicinity spotted the applicants’ relative and started chasing him. As the latter’s behaviour was defiant and he resisted arrest, the first officer tried to grab hold of him. There was a brief struggle from which the applicants’ relative managed to break loose, who then adopted a threatening posture and drew his pistol. Seeing the pistol and feeling threatened, the first officer drew his service pistol and in a loud voice ordered the applicants’ relative at least once to drop his gun. The latter then pointed his pistol towards the ground, but in a manner which the officer found threatening, and tried to walk away. By this time the second officer arrived at the scene. He saw the applicants’ relative holding a pistol, which, despite being kept covered by the first officer, and in defiance of the order to drop it, he did not let go. Both officers saw the applicants’ relative turning and raising the hand holding the pistol. The second officer saw him point the pistol in his direction, and therefore drew his service pistol – which he had not yet done – and fired once, killing the applicants’ relative. The initial investigation, mainly consisting in the questioning of witnesses, was done by members of the Amsterdam/Amstelland police force to which the police officers themselves belonged. The investigation was then handed over to a member of a specialised police unit, Detective Chief Superintendent Van Duijvenvoorde of the State Criminal Investigation Department, who questioned a number of police and civilian witnesses (including some already heard by officers of the Amsterdam/Amstelland police force). He interviewed the police officers involved for the first time on 22 July 1998, the third day after the fatal shooting, and on 3 and 4 August again, when he confronted them with statements made by civilian witnesses. The public prosecutor placed in charge of the criminal investigation eventually took the decision not to bring any prosecution against the police officer responsible for the shooting. The applicants lodged a complaint to the Court of Appeal about the Public Prosecutor’s failure to prosecute the police officer responsible for the shooting. They asked for these proceedings to be public and for additional investigative measures to be ordered. They were unsuccessful in both respects. Moreover, the Court of Appeal did not order any prosecution: it was satisfied on the evidence available that the police officer had acted in legitimate self-defence. The applicants also lodged a complaint to the Police Complaints Board about a press release put out by the public prosecution department which in their view had not reflected the circumstances of their relative’s death. An explanation for the wording in the press release was given, but as the discrepancy was not considered to be fundamental an official retraction was not deemed justified.
Law: Article 2
(a) As regards the shooting of the applicants’ relative – The principal premise on which the applicants based their argument, namely that excessive force had been used to arrest a person suspected of nothing more serious than stealing a scooter, could not be accepted. It was apparent from the facts that the actual attempt to arrest the applicants’ relative had led to nothing more serious than a brief scuffle between him and the first police officer; it did not involve the use of firearms. The second police officer had fired only after the applicants’ relative, defying unambiguous warnings to give up his weapon, had begun to raise his pistol towards him. In such circumstances, the officer was entitled to consider that a threat to his life existed. This assessment could not be criticised even with hindsight. The use of lethal force had not therefore exceeded what was “absolutely necessary” for the purposes of effecting the arrest of the applicants’ relative and protecting the lives of the police officers involved.
Conclusion: no violation (unanimously).
(b) As regards the investigation following the shooting – The official investigation undertaken into the events appeared to have been thorough and its findings had been recorded in considerable detail. It had not been established, as claimed by the applicants, that the authorities had failed to seek out witnesses who might have contributed accurate and relevant information to the file. The omission of certain technical examinations had not impaired either the effectiveness of the investigation as a whole. However, as concerns the independence of the investigation, it was noted that essential parts of it were carried out by the same force to which the police officers involved belonged, namely the technical examination of the scene of the shooting, the door-to-door search for witnesses and the initial questioning of witnesses. The Court has already found a violation of Article 2 in its procedural aspect when an investigation into a death in circumstances engaging the responsibility of public authority has been carried out by direct colleagues of the persons allegedly involved. Supervision by another authority, however independent, has been found not to be a sufficient safeguard for the independence of the investigation. The same considerations applied here. The investigation had therefore lacked the requisite independence in the present case. Whilst the decision of the public prosecutor and the Court of Appeal to not prosecute the second police officer had not been unreasonable, and the applicants were granted sufficient information to be able to participate effectively in the proceedings challenging this decision, the procedure followed by the Court of Appeal had fallen short of the standards applicable to this provision in one aspect, namely that the decision of this court had not been made public.
Conclusion: violation (five votes to two).
Article 41 – The Court awarded the applicants EUR 20,000 in respect of non-pecuniary damage. It also made an award for costs and expenses.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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