Last Updated on May 30, 2019 by LawEuro
Information Note on the Court’s case-law 221
August-September 2018
Mendy v. France (dec.) – 71428/12
Decision 4.9.2018 [Section V]
Article 2
Article 2-2
Use of force
Death of a mentally disturbed person threatening a man’s life, following a gunshot fired by a police officer while chasing him: inadmissible
Facts – The applicant is L.M.’s sister. In May 2007 two police officers, L.L. and S.T., attempted to arrest L.M., who was chasing J.-P.H., threatening him with a knife. L.M. was shot dead by police officer S.T.
Law – Article 2 (substantive limb): L.M.’s wildly erratic behaviour had indisputably posed an imminent threat to J.-P.H.’s life. L.M. had threatened and then pursued him, armed with a knife, refusing to obey police orders, ignoring warning shots and even stabbing police sergeant L.L., who was trying to stop him. He had injured L.L.’s hand, and then resumed his headlong pursuit of J.-P.H. after being hit by a car. The police officers had therefore been justified in considering that L.M. appeared to be out of control.
Police officer S.T. had therefore acted in the sincere belief that J.-P.H.’s life was under threat and had genuinely believed that physical force was needed, which entitled him to use appropriate, potentially lethal means to ensure the defence of J.-P.H.’s life.
Police officer S.T. had fired two warning shots, neither of which had had any deterrent effect on L.M. Furthermore, when the officer had fired the next two shots, without taking aim, he had merely been attempting to hit the bulk of the body of the person whom he was trying to arrest. The fatal gunshot had been fired when the officer and the victim were five metres apart, but running fast, which had significantly reduced the accuracy of the police officer’s aim. Finally, L.M. had caught up to within four or five metres of J.-P.H. In view of all those facts, the police officer’s response had been absolutely necessary in the light of the serious immediate threat to J.-P.H.’s life.
In view of L.M.’s attitude, the inability of police sergeant L.L. to intervene once he had been injured, and the imminent risk indisputably incurred by J.-P.H., S.T.’s decision to use his firearm, despite the risk of inaccuracy entailed by his pursuit of L.M., could, in the specific circumstances 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.
Moreover, L.M.’s violent actions had not been attributable to any feeling of being threatened by the police officers’ actions. Indeed, his aggressive attitude had begun before their arrival on the scene and had been the reasons why a neighbour had called the police and why they had arrived so rapidly. Moreover, it was L.M.’s conduct which had led the police officers to use force and had led the Court to rule that that use of force had been justified and absolutely necessary in the light of the circumstances of the case.
Lastly, Article 122-5(1) of the Penal Code, applicable to the law-enforcement agencies, which laid down the criteria for legitimate self-defence and defence of others, mentioned the “necessity” of the defence and the “imminence” of the danger, and required the reaction to be proportionate to the aggression. Even though they were not identically worded, that provision was similar to Article 2 of the Convention and comprised all the elements required by the case-law of the Court. In the light of the circumstances of the case it was clear that the respondent State had an appropriate domestic legal framework governing the use of firearms.
Conclusion: inadmissible (manifestly ill-founded).
The Court also found inadmissible as manifestly ill-founded the part of the application under the procedural limb of Article 2, given that the investigation as a whole had been sufficiently effective to establish that the use of force had been justified under the circumstances.
(See also McCann and Others v. the United Kingdom [GC], 18984/91, 27 September 1995; Makaratzis v. Greece [GC], 50385/99, 20 December 2004, Note d’information 70; Giuliani and Gaggio v. Italy [GC], 23458/02, 24 March 2011, Note d’information 139; Aydan v. Turkey, 16281/10, 12 March 2013, Note d’information 161; Lamartine and Others v. France (dec.), 25382/12, 8 July 2014; and Guerdner and Others v. France, 68780/10, 17 April 2014)
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