CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 6 octobre 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  The European Commission of Human Rights sitting in private on 6 October 1986 the following members being present:                       MM. C.A. NØRGAARD, President                         G. SPERDUTI                         J.A. FROWEIN                         G. TENEKIDES                         S. TRECHSEL                         B. KIERNAN                         A.S. GÖZÜBÜYÜK                         A. WEITZEL                         J.C. SOYER                         H.G. SCHERMERS                         H. DANELIUS                         G. BATLINER                         J. CAMPINOS                     Mrs G.H. THUNE                     Sir Basil HALL                     Mr. F. MARTINEZ                       Mr. H.C. KRÜGER, Secretary to the Commission   Having regard to Article 25 (Art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms;   Having regard to the application introduced on 13 September 1984 by W. and M.W. against the Federal Republic of Germany and registered on 17 September 1984 under file No. 11257/84;   Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;   Having deliberated;   Decides as follows:   THE FACTS   The facts of the case, as they have been submitted by the applicants may be summarised as follows:   The applicants, a married couple, are German citizens resident in Diez/the Federal Republic of Germany.   The first applicant, born in 1925, is a pensioner.   The second applicant, born in 1938, is a housewife.   Before the Commission, the applicants are represented by Mr. Sieg, a lawyer practising in Frankfurt.   On 20 October 1981, the Munich Police arrested the applicants' son, born in 1960, together with four other members of a group on their way to an armed bank robbery.   In the course of the arrest, at least one member of the group did not comply with the police's instruction to raise his hands.   Then, according to the applicants, an accomplice detonated a hand grenade.   In reaction thereto the police opened fire and injured the applicants' son and another member of the group so seriously that one hour later they died in hospital.   It appears from the statement of facts in the decision of the Munich Public Prosecutor's Office (Staatsanwaltschaft) dated 26 September 1983, which is in this respect not disputed by the applicants, that the Munich Police had decided to effect the arrest of the group members on their way to the robbery according to secret information. This information concerned the specific circumstances of the intended bank robbery, the types of arms, as well as the strict intention to use them.   Other plans of arrest had been rejected as being too dangerous for third persons.   An ambulance was called immediately after the incident and arrived ten minutes later.   In and beside the car the police found three sub-machine guns, one sawn off shotgun, one revolver, seven hand grenades and a substantial amount of amunition.   On 7 January 1982, the applicants requested the Munich Public Prosecutor's Office to institute criminal proceedings against the responsible policemen.   On 26 September 1983, the Munich Public Prosecution Office decided to close the investigation.   It found that the use of arms by the police had been justified after the detonation of the hand grenade in order to effect the arrest and to defend the policemen.   The applicants' appeal against this decision was dismissed as unfounded by the Director of Public Prosecutions (Generalstaatsanwalt) on 22 December 1983.   On 2 February 1984, the Munich Court of Appeal (Oberlandesgericht) dismissed the applicants' request that the Court should order the institution of investigation procedures.   The Court held that the applicants had only raised questions of law and had not sufficiently substantiated the allegations.   On 26 March 1984, the Federal Constitutional Court (Bundesverfassungsgericht) dismissed the applicants' constitutional complaint as offering no prospect of success.   The Court held that there was no evidence that the previous instances had acted partially or improperly in closing the investigations or that the proceedings had been unfair.   COMPLAINTS   1.       The applicants complain under Article 2 (Art. 2) of the Convention that while their son was being arrested he was killed by a policeman.   On the one hand they allege that the shooting of their son was not absolutely necessary to effect the arrest or defend the policemen.   On the other hand they allege negligence on behalf of the Munich Police in the course of organising the arrest.   For instance, no ambulance and adequate means of medical treatment had been ordered to be immediately ready for operation.   2.       The applicants furthermore complain under Article 6 para. 1 (Art. 6-1) of the Convention of the alleged unfairness of the proceedings by which they had attempted to institute criminal proceedings against the policemen involved in the incident.   THE LAW   1.       The applicants complain under Article 2 (Art. 2) of the Convention that the shooting of their son was not absolutely necessary to effect the arrest or to defend the policemen.   Moreover, they allege that the arrest had been negligently organised.   The Commission recalls at the outset that the applicants, as the parents who were affected by the death of their son, may claim to be victims, in the sense of Article 25 (Art. 25) of the Convention. The Commission here refers to its decisions on the admissibility of Application No. 2758/66 (Dec. 21.5.69, Collection 30 p. 11) and Application No. 9348/81 (Dec. 28.2.83, D.R. 32 p. 190).   The Commission next notes that the applicants did not institute proceedings for damages according to S. 844 and 839 of the German Civil Code (Bürgerliches Gesetzbuch) in conjunction with S. 34 of the Basic Law (Grundgesetz).   These provisions provide for compensation to present or future dependants in cases of unlawful deprivation of life. Rather, the applicants only availed themselves of the legal means to have criminal proceedings instituted against the policemen involved in the incident.   An issue arises therefore as to whether the applicants have exhausted domestic remedies within the meaning of Article 26 (Art. 26) of the Convention.   However, the Commission does not regard it as necessary to determine this question as the above complaint under Article 2 (Art. 2) is in any case manifestly ill-founded for the following reasons.   Insofar as the applicants complain that the shooting of their son was not absolutely necessary within the meaning of Article 2 para. 2 (a) and (b) (Art. 2-2-a, art. 2-2-b) of the Convention the Commission observes that, in assessing whether the use of force is strictly proportionate, regard must be had to the nature of the aim pursued, the dangers to life and limb inherent in the situation and the degree of the risk that the force employed might result in loss of life.   The Commission's examination must have due regard to all the relevant circumstances surrounding the deprivation of life (see e.g. No. 10044/82, Dec. 10.7.84, to be published in "Decisions and Reports").   In the present case, the Commission notes that the police had serious and detailed information about the group's plan to commit an armed bank robbery and that the group had the strict intention to make use of their arms.   In the course of the arrest, at least one member of the group did not comply with the police's instruction to raise his hands.   The police shot at the group only after one of its members had detonated a hand grenade while the arrest was being effected.   The subsequent search of the car and of the arrested persons themselves indeed proved that they were equipped with numerous dangerous weapons.   The Commission considers, therefore, that the police acted in order to effect the lawful arrest of the members of the group as well as to defend themselves against unlawful violence.   In assessing the further question as to whether or not the force used in pursuit of these respective aims under Article 2 para. 2 (a) and (b) (Art. 2-2-a, art. 2-2-b) was absolutely necessary within the meaning of that provision the Commission has had special regard to the situation confronting the police officers.   The Commission recalls that the group had grave criminal aims and was extensively equipped with dangerous weapons and that these two facts had come to the attention of the Munich Police before the incident.   In view thereof the Commission finds that the deprivation of the life of the applicants' son resulted from the use of force which was no more than absolutely necessary both in respect of the self-defence of the respective policemen and the necessity to effect a lawful arrest within the meaning of Article 2 para. 2 (a) and (b) (Art. 2-2-a, art. 2-2-b) of the Convention.   Insofar as the applicants complain about the organisation of the arrest the Commission notes that the police specifically planned the arrest in such a way as to avoid risks of personal harm to third persons.   The ambulance, alarmed in advance, arrived soon after the incident at issue.   The Commission, therefore, concludes that in respect of the above complaint there is no appearance of a violation of Article 2 (Art. 2) of the Convention.   It follows that this part of the application must be rejected in accordance with Article 27 para. 2 (Art. 27-2) of the Convention as being manifestly ill-founded.   2.       The applicants furthermore allege that the proceedings to enforce preliminary investigations and criminal proceedings against the policemen involved in the incident have not been fair within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   Article 6 para. 1 (Art. 6-1) provides for everyone certain procedural guarantees "in the determination of his civil rights and obligations or of any criminal charge against him".   The Commission first observes that the applicants were not charged with a criminal offence but, on the contrary, were attempting to introduce criminal proceedings against third persons.   Moreover, the proceedings concerning this request to institute criminal proceedings did not relate to any civil rights or obligations of the applicants. It follows that these proceedings fall outside the scope of Article 6 para. 1 (Art. 6-1).   This part of the application must therefore be rejected as being incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   For these reasons, the Commission   DECLARES THE APPLICATION INADMISSIBLE   Secretary to the Commission                President of the Commission          (H.C. KRÜGER)                               (C.A. NØRGAARD)