Information Note on the Court’s case-law No. 151
April 2012
Sašo Gorgiev v. “the former Yugoslav Republic of Macedonia” - 49382/06
Judgment 19.4.2012 [Section V]
Article 2
Positive obligations
Article 2-1
Life
Non-fatal shooting of a waiter by police officer on unauthorised leave of absence: violation
Facts – The applicant, a waiter in a bar, was shot and wounded at point-blank range by R.D., a police reservist, who had taken unauthorised leave of absence while on night duty. R.D. was subsequently convicted of serious crimes against security after the trial court found that he had unintentionally pulled the trigger while under the influence of alcohol. He was given a suspended prison sentence. In separate proceedings, the civil courts dismissed an action in damages the applicant had brought against the State/Ministry of the Interior on the grounds that R.D. had not been acting in the course of his official duties when the incident occurred.
Law – Article 2: Irrespective of whether there had been any intention to kill, the applicant had been the victim of conduct which, by its very nature, had put his life at risk. Article 2 was thus applicable. Although, as a police reservist, R.D. was a State agent, he was not acting in the course of his duties at the time of the shooting. In determining whether the State could nonetheless be held responsible for his unlawful actions, the Court had to assess the totality of the circumstances and consider the nature and circumstances of his conduct.
The incident had occurred during R.D.’s working hours, when he was supposed to be on duty at the police station. Although it was undisputed that he had left his post without authorisation and in a state of intoxication, he was in uniform and had shot the applicant with his service weapon. While the authorities could not have objectively foreseen R.D.’s behaviour, the State had a duty to put in place and rigorously apply a system of adequate and effective safeguards to prevent its agents, especially temporary mobilised reservists, misusing weapons made available to them in the context of their official duties. The Government had not referred to any such regulations, but the Court noted that section 26 of the Internal Affairs Act required State agents to perform their duties “at all times, whether on or off duty”, which in practice meant they were required always to have their service weapons on them. The Government had not given any indication either of whether any assessment had been made of R.D.’s fitness to serve in the police and to carry a weapon, when that should have been a matter subject to particular scrutiny. In the light of these circumstances, R.D.’s actions were imputable to the respondent State.
Conclusion: violation (unanimously).
Article 41: EUR 12,000 in respect of non-pecuniary damage; EUR 3,390 in respect of pecuniary damage.
(See also Gorovenky and Bugara v. Ukraine, nos. 36146/05 and 42418/05, 12 January 2012, Information Note no. 148)
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This summary by the Registry does not bind the Court.
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