CEDH · CASELAW;CLIN;ENG — 15 mai 2007

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 97 May 2007 Ramsahai and Others v. the Netherlands [GC] - 52391/99 Judgment 15.5.2007 [GC] Article 2 Article 2-1 Life Effective investigation Article 2-2 Use of force Fatal shooting by a police officer during an attempted arrest: no violation Effectiveness and independence of an investigation into a fatal shooting by a police officer: violations Extent to which victim's relatives were able to participate in the investigation and lack of a public hearing of the relatives' legal challenge against the decision not to prosecute the police officer: no violations Facts : The judgment concerns the death of Moravia Ramsahai, the applicants’ son and grandson, who was shot dead by a police officer in Amsterdam, at the age of 19 and a half, in the following circumstances. One Saturday night during a festival, Moravia Ramsahai stole a scooter: he threatened the owner with a pistol and rode away on it. The police were informed of the theft. Two uniformed police officers, B. and B., who were in a patrol car, noticed a scooter being driven by an individual fitting the reported description. One officer ran towards the suspect and tried to arrest him but after a brief struggle Moravia Ramsahai managed to break free. The officer saw him take a pistol out from under his belt, upon which he drew his own service pistol and ordered Moravia Ramsahai to put down his weapon. The youth refused to comply. In the meantime the second officer had left the patrol car and approached the scene. Moravia Ramsahai then apparently raised his weapon and pointed it in the direction of that officer, who drew his gun and fired. The victim was struck in the neck and died upon the arrival of the ambulance. Moravia Ramsahai’s pistol was found loaded and ready to fire. A criminal investigation was opened. It was partly conducted by the police force to which officers B. and B. belonged. This local police force carried out the investigation for the first 15 and a half hours, after which the investigation was taken over and placed under the responsibility of a Detective Chief Superintendent of the State Criminal Investigation Department. The Superintendent sent his report to the public prosecutor, who was the legal officer in charge of criminal investigations carried out at the police station for which officers B. and B. worked. The public prosecutor concluded that the fatal shot had been fired in self-defence and that the officer responsible would not therefore be prosecuted. The applicants obtained a right of access to the case file. They challenged the public prosecutor’s decision not to prosecute the police officer, but that decision was upheld by the Court of Appeal, whose proceedings and decision were not public. Law: Fatal shot by a police officer: The Grand Chamber was concerned about the independence and quality of the investigation into the death. As regards the identity of the officer who fired the fatal shot, there was some discrepancy between the version of the policemen present at the time and the version of the officers who had been contacted by radio after the shooting; moreover, the investigation had been opened and initially undertaken by police officers who, like B. and B., belonged to the local police force. However, the establishment of the facts as set out in the Chamber judgment had not seriously been called into question by the parties. In addition, the description of Moravia Ramsahai’s conduct, as given by officers B. and B., was consistent with the other established facts and in particular the fact that, previously that day, the youth had already brandished a pistol to threaten other people. In those circumstances, the Grand Chamber decided to examine the case in the light of the facts as established by the Chamber. It agreed with the Chamber that the fatal shot had not exceeded what was “absolutely necessary”. Conclusion : no violation (unanimously). Effectiveness of the investigation into the circumstances surrounding the death : The Grand Chamber considered, unlike the Chamber, that the adequacy of the investigation had been undermined by certain shortcomings, namely: failure to test the hands of officers B. and B. for gunshot residue and to stage a reconstruction of the incident, the apparent absence of any examination of their weapons or ammunition and the lack of an adequate pictorial record of the trauma caused to the victim’s body by the fatal bullet. In addition, officers B. and B. had not been kept separated after the incident and had not been questioned until nearly three days later. Although there was no evidence that they had colluded with each other or with their colleagues, the mere fact that appropriate steps had not been taken to reduce the risk of such collusion had amounted to a significant shortcoming. Those lacunae were all the more regrettable in that there were no witnesses who saw the fatal shot fired from close by, except for the two police officers. Conclusion : violation on account of the inadequacy of the investigation (thirteen votes to four). As regards the independence of the police investigation, fifteen and a half hours had passed from the time of the death until the State Criminal Investigation Department had become involved. During that time, essential parts of the investigation had been carried out by the same force to which officers B. and B. belonged. The Government had not pointed to any special circumstances that had necessitated immediate action by the local police force in the present case going beyond the securing of the area in question. Since the State Criminal Investigation Department were able to appear on the scene of events within, on average, no more than an hour and a half, a delay of fifteen and a half hours was unacceptable. As to the other investigations of the local police force, at the request and under the responsibility of the State Criminal Investigation Department after it had taken over the investigation, the Department’s subsequent involvement could not suffice to remove the taint of the force’s lack of independence. Conclusion : violation in that the police investigation was not sufficiently independent (sixteen votes to one). As regards the role of the public prosecutor, the police investigation had been supervised by a public prosecutor who had hierarchical responsibility for the work of officers B. and B. and their colleagues. The same public prosecutor had taken the decision not to prosecute, under authority delegated to her by the Chief Public Prosecutor.   Public prosecutors inevitably relied on the police for information and support. This did not in itself suffice to conclude that they lacked sufficient independence vis-à-vis the police. Problems might arise, however, if a public prosecutor had a close working relationship with a particular police force. In the present case, it would have been better if the investigation had been supervised by a public prosecutor unconnected to the local police force, especially given the involvement of that force in the investigation itself. Even so, note had to be taken of the degree of independence of the Netherlands Public Prosecution Service and the fact that ultimate responsibility for the investigation was borne by the Chief Public Prosecutor. What is more, the possibility of review by an independent tribunal existed and the applicants had actually made use of it. Conclusion : no violation as regards the position of the public prosecutor who supervised the investigation (thirteen votes to four). Involvement of the applicants in the investigation : The Grand Chamber considered, like the Chamber, that the applicants had been granted access to the information yielded by the investigation to a degree sufficient for them to participate effectively in proceedings aimed at challenging the decision not to prosecute. Conclusion : no violation (unanimously). Lack of publicity of the proceedings brought by the applicants for a review of the merits of the decision not to prosecute, and of the decision of the Court of Appeal : The Grand Chamber agreed with the Chamber that the proceedings did not have to be open to the public. Unlike the Chamber, however, it took the view that the Court of Appeal’s decision was not required to be made public either. The applicants had been allowed full access to the investigation file, had been able to participate effectively in the Court of Appeal’s hearing and had been provided with a reasoned decision. There was thus little likelihood that any relevant information might have been concealed from the Court of Appeal or the applicants. In addition, given that the applicants had not been prevented from making the decision public themselves, the requirement of publicity was satisfied to an extent sufficient to obviate the danger of any improper cover-up by the authorities. Conclusion : no violation (fifteen votes to two). The Court held, by thirteen votes to four, that Article 6 did not apply to the proceedings brought by the applicants, under Article 12 of the Netherlands Code of Criminal Procedure, against the public prosecutor’s decision not to prosecute. Article 41 – EUR 20,000 for non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes