Last Updated on August 30, 2022 by LawEuro
Information Note on the Court’s case-law 265
August-September 2022
Judgment 30.8.2022 [Section IV]
Article 2
Article 2-1
Effective investigation
Article 2-2
Use of force
Use of lethal force during police operation against individual, wrongly identified as dangerous fugitive, not absolutely necessary, and ineffective investigation: violations
Facts – The applicant’s husband (Mr Pârvu) was fatally shot in the head while driving a car by a police officer (D.G). The incident happened during a planned intervention by police officers in order to arrest an international fugitive subject to a European arrest warrant and who was considered to be dangerous due to the crimes attributed to him, namely murder and robbery. Mr Pârvu was wrongly identified as that individual.
A criminal investigation into the killing of the applicant’s husband was opened. Overall, it lasted more than eleven years and ended with the prosecutor’s decision that D.G. had acted in legitimate self-defence to stop Mr Pârvu endangering the life of other police at the scene, while also maintaining that the shooting was accidental. The applicant unsuccessfully appealed against that decision.
Law – Article 2:
(a) Substantive limb –A dual explanation had been provided for D.G.’s actions leading up to and including the fatal shooting, combining:
– the legitimate self-defence argument, valid in the first moments of the police operation when, it was alleged, Mr Pârvu’s actions had created a danger for the police officers of being hit by his car, and when D.G. had cocked his pistol, followed by;
– the subsequent accidental shooting of Mr Pârvu in the head, when D.G. had lost his balance after the opening car-door had hit his elbow and the cocked pistol had been unintentionally discharged.
Given the deficiencies in the domestic investigation, as elaborated below, the Court had doubts as to whether the use of lethal force could be regarded as absolutely necessary and justified, and whether D.G., who had coordinated the police operation, could be considered as honestly having believed that other police officers, who themselves had been armed, had been exposed to a clear and immediate danger. Indeed, at the moment that D.G. had fired the fatal shot, the car had already stopped and the police officers who had been perceived to be in danger of being hit had managed to avoid an impact. An opinion by the National Institute of Forensic Medicine, issued nearly seven years after the beginning of the investigation into the death, also seemed to support the Court’s doubts as to the accidental nature of the shooting. Moreover, investigators had failed to seek the expert opinion of a neurologist to determine if a hit to the elbow as described could have led to the fatal shooting, despite this act being ordered by two domestic courts.
Concerning the conduct of the operation itself, the investigation had not adequately addressed why D.G. had intervened. He had not been part of the squad of specially trained policemen participating and whose mission had been to immobilise the suspect, and he had apparently acted outside his own mission of identifying the suspect.
The operation had also not been planned so as to reduce to a minimum any recourse to lethal force. It had deployed significant police forces, but which had acted upon unreliable information that the person driving the car was the fugitive. That was a significant error which had become obvious to the police only after the fatal shooting. There had been insufficiencies in the investigation of that error and the prosecutor’s decision had only superficially explained how it had been possible. That identification error was an important factor engaging the responsibility of the authorities in respect of Mr Pârvu’s death. Moreover, there was nothing to show what kind of mitigating measures had been considered in the preparation of the police operation in order to apply the principle of proportionality and to avoid the risk of mistakenly killing an innocent person. In addition, it had not been clear whether the police officers taking part in the events in question had been clearly identifiable as being from the police. They had also failed to arrange for an ambulance to be present and the victim had had to wait for about fifteen minutes for one to arrive.
Finally, the Government had not explained whether an adequate legislative and administrative framework had been put in place to safeguard citizens against arbitrariness and abuse of force.
Accordingly, the manner in which the police had responded could not be considered to have been “no more than absolutely necessary” to achieve the aim of preventing Mr Pârvu’s escape and arresting him or averting the perceived threat posed by him.
Conclusion: violation (unanimously).
(b) Procedural aspect – In examining the incident and proceedings as a whole, the Court found that, among other things, there had been striking omissions in the conduct of the investigation which had been identified by the relevant domestic courts and a number of questions as to the crucial factual elements of the case had been left open. Furthermore, the criminal investigation into Mr Pârvu’s fatal gunshot injury had lasted for more than eleven years, with the case being sent back to the prosecutor four times because of significant omissions in the investigation. Moreover, the investigation authorities had only superficially addressed the issue of the planning and control of the operation. Lastly, more than six years after the incident, a domestic court had established that the police operational procedures had been contained in a secret document, to which the prosecutor had not been given access.
Conclusion: violation (unanimously).
Article 41: EUR 65,000 in respect of non-pecuniary damage.
Article 46: The finding in the present case of a violation of the right to an effective investigation under Article 2 was similar to those found in previous cases against Romania. General measures at the national level were undoubtedly called for in the execution of the present judgment and concerning the right to an effective investigation into the use of potentially lethal force by the police. The respondent State therefore had to comply with the requirements of Article 46, taking into account the principles set out in the Court’s case-law in that area, as described in the present judgment. The Court also referred to indications made by the Committee of Ministers and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) in respect of Romania. However, it was left to respondent State, subject to supervision by the Committee of Ministers, to take the practical steps it deemed appropriate to pursue those indications in a manner compatible with the conclusions of this judgment.
(See also Wasilewska and Kałucka v. Poland, 28975/04 and 33406/04, 23 February 2010; Soare and Others v. Romania, 24329/02, 22 February 2011, Legal Summary; Gheorghe Cobzaru v. Romania, 6978/08, 25 June 2013)
Leave a Reply