Last Updated on May 29, 2019 by LawEuro
FIFTH SECTION
DECISION
Application no. 71428/12
Florence MENDY
against France
The European Court of Human Rights (Fifth Section), sitting on 4 September 2018 as a Chamber composed of:
Angelika Nußberger, President
Yonko Grozev,
André Potocki,
Síofra O’Leary,
Mārtiņš Mits,
Gabriele Kucsko-Stadlmayer,
Lado Chanturia, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the aforementioned application lodged on 2 November 2012,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Florence Mendy, is a French national who was born in 1976 and lives in La-Seyne-sur-Mer. She was represented before the Court by Mr P. Spinosi, a lawyer practising in Paris.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant is the sister of L.M., a sports coach working in a football club, who was killed by apoliceofficer under thecircumstancesset out below.
4. Just after 6 p.m. on 3 May 2007 anemployee at a day nurseryadjoining the football club informed the police that L.M. had been seen threatening J.-P. H., a club member, with a knife.
5. Police sergeant L.L. and police officer S.T., members of the serious crimes bureau, arrived at the scene of the incident within minutes. They looked through some windows to see L.M. and J.-P.H. inside a sports hall, with L.M. brandishing a knife. The police officers were unable to enter the premises, and thereforeshouted an order through a window to L.M. to drop his knife, one of the officersshowing his service gun at the window. J.‑P.H. took the opportunity to run out into the street. He was immediately pursued byL.M. Police sergeant L.L., who found himself facing L.M. with his knife pointing at him, moved aside. L.M. ran on after J.-P. H. One of the officers fired a warning shot in the air. L.M. nevertheless kept on running afterJ.-P. H., with the two officers in hot pursuit.
6. Shortly afterwards, police sergeant L.L. was skirting round a container when he once again came face-to-face with L.M., who made one unsuccessful attempt to stab him, and then tried again, this time injuring his hand. L.M. ran off again, was hit by a car at a street corner, got up and resumed his pursuit of J.‑P.H., still armed with his knife. Police officer S.T. then fired two shots at L.M., missing him. He then ran after him, firing two more shots at him. The shots hit L.M. and he collapsed. Despite his injury, police sergeant L.L. immediately ran to L.M.’s assistance, alerted the emergency services and called for reinforcements. It was 6.14 p.m. At that time the officers could not find J.‑P.H. as he had soughtrefugein a police station.
7. At around 8 p.m. on 4 May 2007L.M. died at thehospitalto which he had been taken the previous evening.
8. During the evening of 3 May 2007 the Regional Delegation of the General Inspectorate of the Police Service was instructed to conduct an investigation. The driver of thevehiclewhich had hit L.M., the persons present at the day nursery, one of whoseemployees had called the police, and the twopolice officers were questioned. On the following day areconstructionof the events was organised.
9. On 7 May 2007 anautopsy of L.M. showed that he had been hit by two bullets: the first had gone through his left hand and the secondhad hit his head, killing him.
10. The case was discontinued.
11. On 19 May 2007 the applicantlodged a complaint against persons unknown for murder, joining the proceedings as a civil party.
12. BetweenDecember 2007 andJuly 2008 the witnesses and police officersunderwentfurther questioning.
13. An expert report ordered by the investigating judgestated that at the time of the fatal gunshot, according to the testimony of a mother present at the day nursery, L.M. had been standing about twenty-five metres away from J.‑P.H. It specified that theballistics assessment had found that L.M. must have been five metresfrom S.T. when he had been shot.
14. On15 December 2009 the investigatingjudgeissued a discontinuance order on the grounds that the investigation had not shown any intention on thepolice officer’s part of wishing to killL.M., that the events had unfolded extremely quickly and unforeseeably, and that S.T. had been acting legitimately in attempting to protect the life of J.-P.H., whom L.M. had been directly threatening. The judgeemphasised, in particular, that despite the shots previously fired, L.M. had continued chasing J.‑P.H., thus showing hisdetermination to attack himphysically. The judgenoted, in that regard, that one of the witnesses had stated that L.M. had not seemed to be in a “normal state”or to bereacting as if fully aware of what he was doing. He further observed that a knife with a fourteen-centimetre-long blade had been found near L.M.’s body, as had a twenty-one-centimetre-long curved oriental dagger in a metal sheath. Lastly, thejudgeheld that the use of the firearmhad been proportionate to the threat posed by L.M. to J.-P. H.’s life.
15. Theapplicantappealed, arguing, in particular, that her brother had not intended to injure J.-P.H. and that he had lost his temper because thepolice officers had drawn their weapons on theirarrival on the scene. The applicantalso contested the distance between L.M. and J.-P.H., submitting that it had transpired from the witness statements that J.‑P.H. had managed to shake off her brother, who had therefore been alone at the time of the fatal gunshot. She also argued that given the short distance between her brother and thepolice officer, the latter could had aimed at the lower part of his body.
16. By judgmentof 16 February 2010, the Investigations Division of the Aix-en-Provence Court of Appeal annulled the discontinuance decision and ordered further inquiries with an eye to chargingS.T. with acts of violence leading to L.M.’s accidental death.That court, answering the applicant’s arguments point by point withdetailed reasoning, emphasised inparticularthat it was wrong to claim that L.M. had felt threatened at the sight of the police officer’s serviceweapon through the window, as he had already been showing anaggressiveattitude to J.-P.H. before the officers’arrival. It also pointed out that L.M. ought to have dropped his knife after the warnings given by the officers. The court added that thefactthat the witnesses had not seen L.M. and J.-P.H. together did not imply, as claimed by the applicant, that L.M. had been alone and J.-P.H. had had time to escape. Furthermore, it held that L.M.’s behaviour had indeed posed an immediate danger and that it had therefore been vital to ensure that he did not catch up with J.‑P.H. In that connection, it emphasised that L.M., who had at no point dropped his knife despite the requests from the police officers and had injured one of them, had presented a real danger. Nevertheless, the Investigations Division noted that theproportionalityof the means used by the officer had been debatable, as the direction in which he had shot could well have been the result of a miscalculation on his part, and that he should have provided more detailed information on this matter.
17. S.T. was questioned further on 10 May. He explained that his last two gunshots had been reflex actions, that is to say that he had firedthem while moving and therefore beenunable to take aim. He pointed out that they had not been precision shots, since a displacement of the gun barrel by one millimetre coulddivert the point of impact by several centimetres. He explained that he had tried to hit the bulk of the person’s body, the torso, but had missed, mainly because of the rapidityofevents and thefact that both theprotagonistshad beenmoving.
18. By judgmentof 3 May 2011 the Investigations Division ruled that there were no grounds for prosecuting S.T. or anyone else. It justified that decisionwith reference tothe behaviour of L.M., who had at no time, despite several shouted warnings, dropped the knife with which he had been threateningJ.‑P.H.,who hadstill been pursuing the latter when the shots had been fired, and who had thus posed an imminent danger. The Division emphasised that it had transpired from the further inquiries that S.T. hadexplained, consistently with the evidence on file,in particular theballistics report, that he had firedreflex shots, merely seeking to hit the bulk of his body, without deliberately aiming at his head. It noted that the expert had confirmed that S.T.’s estimation of his distance from L.M. was consistent with the ballistics findings, and that it should be remembered that the police officer and L.M. had been running, which, at a distance of five metres, ruled out any greater precision. It notedthat the first shots fired had not in fact hit L.M. The Investigations Division considered that the response had been proportionate to the seriousness of the endangerment of J.‑P.H., especially since the second police officer, who had been injured by L.M., had no longer been able to act. It therefore concluded that the conditions forlegitimatedefenceof others had been met.
19. The applicantappealed on points of law.
20. By judgmentof 2 May 2012 theCourtof Cassation dismissed her appeal on points of law.
B. Relevant domestic law
21. Articles 122-5 (1) and 122-7 of the PenalCode as applicable at the material time provide:
Article 122-5 (1)
“A person is not criminally liable if, confronted with an unjustified attack upon himself or upon another, he performs at that moment an action compelled by the necessity of self-defence or the defence of another person, except where the means of defence used are not proportionate to the seriousness of the attack.”
Article 122-7
“A person is not criminally liable if, confronted with a present or imminent danger to himself, another person or property, he performs an act necessary to ensure the safety of the person or property, except where the means used are disproportionate to the seriousness of the threat.”
22. Prior to the enactment of Law no. 2017-258 of 28 February 2017, police officers were subject to the requirements of self-defence or legitimate defence (Article 122-5 of the Penal Code) and of necessity (Article 122-7 of the Penal Code). The use of service weapons was thus subject to theproportionality flowing from the said legaltexts, compliance with which was supervised by the Courtof Cassation. As an illustration, theCourtof Cassation ruled well-founded ajudgmentholding that the following act had not satisfied the proportionalityrequirement for legitimatedefence: a police officer had fired a fatal gunshot at a vehiclewhich had avoided direct contact and confrontation with the security forces but had previously formed part of,before leaving, the samegroupas another car involved fifteen or twenty minutes earlier in forcing a police barrier, with fatalconsequences(see Cass. crim., 26 July 2000, no. 00‑83.552 ). Furthermore, Article 9 of Decreeno.86-592 of 18 March 1986 setting out the police deontological code regulated theuseof force:
“Where it isauthorised by law to use force, and inparticular to use service weapons, police officers may do so only insofar as strictlynecessary and proportionate to the aim pursued”.
The Law of 28 February 2017 harmonised the statuses ofpolice officers and gendarmes, who were already subject inpractice to verysimilar regulations developed over the years in the case-law of the Courtof Cassation (see, for example the following judgmentsof theCourtof Cassation: Cass. crim., 26 July 2000, no. 00‑83.552, mentioned above; Cass. crim., 12 February 2002, no. 01‑82.863; andCass. crim., 10 October 2007, no. 06‑88.426; see also, as regardsthe gendarmerie, thereferencesinGuerdner and Others v. France, no. 68780/10, §§ 43‑44, 17 April 2014) consistent with the case-law of the Court (see Guerdner and Others, cited above, § 74).
COMPLAINTS
23. Relying on Article 2 of the Convention, the applicant submitted that the use of such a degree of force by the police officers had not been absolutely necessary, given that her brother’s conduct had not posed any sufficiently imminent threat to justify the gunshots.
24. She also considered that the State had failed in itspositive obligations toprotect L.M.’s life on account, firstly, of thelack of supervision of thepoliceoperation, and secondly, of the vagueness of the statutory framework governing the use of firearms.
25. Under the procedural limb, the applicantsubmitted that the proceedings had fallen short of the independenceand effectivenessrequirements under Article 2 of the Convention.
THE LAW
26. The applicantconsidered that her brother’s right to life had been violated. She relied on both the substantive and the procedural limbs of Article 2 of the Convention, which provides:
“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;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
A. The substantive limb
27. TheCourtrefers to the judgmentsin the cases of McCann and Others v. the United Kingdom, (27 September 1995, Series A no. 324), Giuliani and Gaggio v. Italy([GC], no. 23458/02, §§ 174‑182 and §§ 208‑210, ECHR 2011 (extracts)), andMakaratzis v. Greece([GC], no. 50385/99, §§ 56‑60, ECHR 2004‑XI), as well as, more recently,Aydan v. Turkey (no. 16281/10, §§ 63‑71, 12 March 2013), Guerdner and Others(cited above, §§ 61‑62), andArmani Da Silva v. the United Kingdom ([GC], no. 5878/08, §§ 244‑248, ECHR 2016), which set out all thegeneral principles emerging from its case-law on the use of lethal force.
28. TheCourtnotes from the outset, as did the domestic courts, that it transpires from the results of the investigation that L.M. was armed with a knife throughout the whole series ofevents. He failed to drop the weapon when the police officers ordered himto do so, and was still bearing it while he pursued J.-P.H., endeavouring to stab him. Moreover, theCourt notes that it is undisputed that L.M. subsequently injured the hand of one of the officers, forcing him to abandon the chase. Furthermore, a dagger was also found on L.M.’s belt after the events (see paragraph 14 above).
29. TheCourtfurther observes that the investigations showed that one of the police officers fired a warning shot at the beginning of the chase, but that L.M. ignored it, continuing to run after J.-P.H. (see paragraphs 5 and 18 above). Nor did L.M. stop after being hit by a car (see paragraph 6 above). The Courtalso notes that it transpires from the domestic decisionsand the evidence gathered, particularly one witness statement, that L.M. was not in a “normal state”. Having regard to the foregoing considerations, the Courtfinds that thepolice officers couldlegitimately have concluded that L.M. was out of control, relentlessly continuing to run afterJ.-P.H. despite all their attemptsto halt him.
30. Moreover, it transpires from the domestic decisions, which wereparticularly closely reasoned in the present case, that L.M.’s frenzied conductundeniably posed an imminent threat to J.-P.H., whose life wasin danger: L.M. had threatened him and then run after him armed with a knife, refusing to obey the officer’s orders, ignoring the warning shot, immediately stabbing police sergeant L.L. when he attempted toarrest him, injuring his hand, and resuming his relentless pursuit of J.-P.H. after being hit by a car.
31. In the light of the foregoing considerations, the Court considers that police officer S.T. acted in the honest belief that J.-P.H.’s life was in danger (see, mutatis mutandis, Giuliani and Gaggio, cited above, § 189), being convinced of the necessity of using force (see, mutatis mutandis, Armani Da Silva, cited above, § 248), which allowed him to make use of the appropriate means of defending J.-P.H. Itconsiders that thatjustifiedrecourse to a potentially lethal means of defence such as the firing of shots (see, mutatis mutandis, Giuliani and Gaggio, citedabove, § 191), which was, moreover, preceded by a warning shot. In that connection, the Court reiterates that when called upon to examine whether the use of lethal force was legitimate, the Court, being detached from the events at issue, 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 (ibid., § 179).
32. The Court further observes that police officer S.T. initially fired two shots, which missed L.M., but which nonetheless did not deter him from continuing in pursuit of J.-P.H. with his knife (see paragraphs 6 and 14 above). Furthermore, relying on the further inquiries which it had ordered, the Investigations Chamber ruled that, as regards the subsequent two shots, the police officer had not taken aim, merely seeking to hit the bulk of the body of the person whom he was attempting to arrest, and that those explanations were consistent with the ballistics report. In that context, the Court notes that according to the conclusions of the expertreportmentioned by the Investigations Division, the police officer had been at a distance of five metresfrom L.M. when he had fired the shots. However, it observes that the fatal gunshot was fired while both thepoliceman and thevictimwere running full tilt, which significantly reduced theprecisionof the former’s shot. Finally, theCourt observes that it transpires from the same expert report that L.M. had come up within four or fivemetresfrom J.-P.H. It concludes from all thosecircumstancesthat thepolice officer’s response was absolutely necessary (see, mutatis mutandis, Armani Da Silva, cited above, § 251) in the light of the very serious imminent danger to J.-P.H.’s life (see, to converse effect, Toubache v. France, no.119510/15, § 47, 7 June 2018, where human lives had no longer been in danger).
33. In view of L.M.’s attitude, of police sergeant L.L.’s inability tointervene once he had been injured, and of the undeniableimminent danger to J.-P.H., police officer S.T.’s decision to use his firearm, despite the risk of inaccuracy stemming from his pursuit of L.M., could, in theparticularcircumstances of the case, be deemed absolutely necessary “in defence of any person from unlawful violence” within the meaning of Article 2 § 2 (a) of the Convention(see Giuliani and Gaggio, cited above, § 194).
34. Moreover, theCourtconsiders that the applicant’allegations concerning the mismanagement ofthe police operationsand the impact of the officers’arrival on her brother’sbehaviourare unsubstantiated. On the contrary, it transpires from the domestic judicial decisionsand the witness evidence that it was by no means established that L.M.’sviolent acts were attributableto his having felt threatened by the police officers’actions. In any event, L.M. had been showing an aggressive attitude before the police had arrivedon the scene, which had been the reason why the employee of the nearby day nursery had called the police and why the latter had arrived so quickly (see paragraphs 4 and 16 above). The Courtconsidersthat the same applies to the applicant’scriticismof the officers’ operational choices and techniques: it was in fact L.M.’s conduct that had led to thepolice officers’use of force (see, mutatis mutandis, Lamartine and Others(dec.), no. 25382/12, § 36, 8 July 2014), and now induces theCourtto find that that use of force wasjustified and absolutelynecessaryin view of thecircumstancesof the case (see, mutatis mutandis,McCann and Others, cited above, § 200, andArmani Da Silva, cited above, § 251).
35. Finally, as regards the applicant’sallegationthat the statutory framework governing the use of firearmswas inadequate, theCourtnotes that Article 122-5 (1)of the Penal Code applicable to the security forces, concerning the justification forlegitimatedefence, mentions the “need” for defensive actionand the“real” natureof the danger, and specifiesthat the defensive response must be proportionate to the degree of aggression. The Court concludes that even though the terms used are not identical, this provision echoes the wording of Article 2 of the Convention and contains the elements required by the Court’s case-law. It considers that given the circumstancesof the present case it cannot beconcluded that no appropriate domestic legal framework existed(see, mutatis mutandis, Giuliani and Gaggio, cited above, §§ 212 and 215).
36. It follows that the complaints are manifestly ill-founded and must berejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
B. The procedural limb
37. Relying on Article 2, the applicantsubmitted that the investigation did not satisfy the requisite conditions of independence and effectiveness.
38. TheCourtnotes, inparticular, that the Investigations Division, which carefully studied the applicant’s pleas, set aside the discontinuance decision and ordered further inquiries with an eye to placingS.T. under investigation and subjecting him to further questioning. The Court notes that thepolice officer’sexplanationsenabled the Investigations Division to form the conviction that he had used force in alegitimate and proportional manner.
39. Furthermore, it should be emphasised that in the present case such supervision of theproportionalityof the use of force was conducted at all three domestic judicial levels.
40. Thus, referring to its finding that the domestic court decisionswere particularly closely reasoned in the instant case (see paragraph 30 above), the Courtconsidersthat the investigation as a whole was sufficiently effective to determinethat the use of lethal force had been justified in the present case (see, mutatis mutandis, Giuliani and Gaggio, cited above, §§ 301 and 309).
41. Moreover, theCourt observes that the complaint regarding lack ofindependenceis unsubstantiated. It notes that there is no evidence on file to establish this aspect of the complaint, which, additionally, was not raised before the domestic courts.
42. It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in French and notified in writing on 27 September 2018.
Claudia Westerdiek Angelika Nußberger
Registrar President
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