Last Updated on April 6, 2021 by LawEuro
Information Note on the Court’s case-law 249
March 2021
Ribcheva and Others v. Bulgaria – 37801/16, 39549/16 and 40658/16
Judgment 30.3.2021 [Section IV]
Article 2
Positive obligations
Authorities’ precautions reasonable, despite some mistakes in planning and conduct of operation against a dangerous individual, who killed an officer while being arrested: no violation
Article 2-1
Effective investigation
Ineffective investigation into allegedly negligent planning and conduct of operation against a dangerous individual, who killed an officer while being arrested: violation
Facts – The applicants are the mother, father and daughter of an officer of the Ministry of Internal Affairs’ anti-terrorist squad, who was killed during an operation by the person the squad sought to arrest. Following criminal proceedings, the shooter was convicted of, inter alia, aggravated murder, sentenced to life imprisonment and ordered to pay the applicants damages. Notwithstanding, the applicants urged the authorities to also investigate whether officials had contributed to their relative’s death by incorrectly ordering and planning the operation, but they refused to launch a separate criminal investigation. Although, in the end the matter was examined in two internal investigations by the above Ministry, the applicants raised issue of their effectiveness.
Law – Article 2
(a) Procedural limb: The Court held that the authorities had been required to investigate, in addition to the direct killer’s responsibility, whether any officials had contributed to the officer’s death through negligent acts or omissions in the planning and conduct of the operation. Indeed, there were no grounds to hold that this investigative duty, which arose when lives had been lost in circumstances potentially engaging the responsibility of the State due to alleged negligence, did not apply in relation to police officers killed by private persons while performing their duties. In the present case, however, the authorities had not properly discharged that duty failing thus to comply with their procedural obligation under Article 2. In particular, the two internal investigations by the Ministry of Internal Affairs, albeit adequate in most respects, suffered from two serious flaws preventing them from fully meeting the requirements of Article 2: the second investigation had not been launched of the authorities’ own motion as required by this provision but upon the deceased’s mother’s complaint, and, more importantly, there had been a complete lack of publicity and involvement of the applicants in both investigations.
Conclusion: violation (unanimously).
Article 2 (substantive limb): The Court confirmed that the obligation under Article 2 to take preventive operational measures to protect life from lethal threats coming from other individuals was equally applicable to any activity in which the right to life was at stake. It was this obligation which had been at issue in the present case. The authorities had clearly known that the applicants’ relative could be at risk from the target if he took part in an operation to arrest him – which could also be described a dangerous activity organised by the State – and had, therefore, a positive duty to do what could reasonably be expected from them to protect him from the risks in the context of that operation. It then went on to emphasise that the standard of reasonableness in relation to this positive obligation (Article 2 § 1) was not as stringent as that in respect to the negative obligation to refrain from using force which was “more than absolutely necessary” (Article 2 § 2). The authorities had a margin of appreciation and should not be subjected to an impossible or disproportionate burden, taking into account the operational choices they faced in terms of priorities and resources, and the unpredictability of human conduct – particularly when it came to active operations by the law-enforcement authorities against armed and dangerous individuals. Nor should the scope and content of the State’s positive obligation to protect its own law-enforcement personnel against risks to their life make it impossible to require them to engage in such operations or unduly onerous for the authorities to organise them. It had to be borne in mind in that connection that law-enforcement personnel who had freely engaged themselves to serve – especially in specialised units whose tasks included dealing with terrorists and other dangerous criminals – had to be surely aware that this might, on occasion, put them in situations where they would face lethal threats which might be difficult to contain. At the same time, however, the authorities had to ensure that such personnel was properly trained and prepared. The Court did not take issue with the equipment and firearms made available to the anti-terrorist squad, since it was for the national authorities, which were better placed to evaluate the relevant demands and take responsibility for the choices to be made between worthy needs, to decide how their limited resources should be allocated and that they were not manifestly ill-equipped for their task. Based on that standard, the Court held that although the authorities had made mistakes in the planning and execution of the operation, the steps they had taken to minimise the risk to the officer’s life could be seen as reasonable and, thus, it could not be said that they had failed in their duty to take reasonable steps to protect him. In particular, while the operation had been unduly rushed and the likely degree of the target’s resistance underestimated, the authorities had taken reasonable precautions: they had obtained intelligence about the target and drawn up plans on how to go about arresting him and seizing his firearms; they had deployed a number of specially trained officers, and acted in a coordinated manner, with an unbroken chain of command at all times. The Court had to be extremely cautious about revisiting any of the choices that the authorities had made in those respects with the wisdom of hindsight – something to be resisted even when examining whether the authorities had used force which was “more than absolutely necessary”, where, as already noted, a much stricter standard applied.
Conclusion: no violation (unanimously).
The Court also held, unanimously, that there was no need to examine the complaint under Article 13 in conjunction with Article 2.
Article 41: EUR 8,000 to each applicant in respect of non-pecuniary damage.
(See also McKerr v. the United Kingdom, no. 28883/95, ECHR 2001‑III; Osman v. the United Kingdom, 28 October 1998, Reports of Judgments and Decisions 1998-VIII, Legal Summary; Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, ECHR 2002‑II, Legal Summary; Stoyanovi v. Bulgaria, no. 42980/04, 9 November 2010; Giuliani and Gaggio v. Italy [GC], no. 23458/02, ECHR 2011 (extracts), Legal Summary; Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, 25 June 2019, Legal Summary)
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