CEDH · CASELAW;CLIN;ENG — 13 mars 2007

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Finland - 57389/00 Judgment 13.3.2007 [Section IV] Article 2 Article 2-2 Use of force Unintended killing of person during siege after he had been firing at police officers: no violation   Facts : The applicant’s brother J. was shot dead by the police. In 1994 J’s home was surrounded by the police, following an incident in which he had threatened a taxi driver with a gun. The police were informed that J. had been involved in an armed siege, that he was paranoid and aggressive, that he had been admitted to a psychiatric institution and was considered especially hostile towards the police. The police and a psychologist tried several times to talk to J. on the telephone, without success. Some 30   officers were joined by over 20   more with special training. J. fired at the police and refused to negotiate. The police were then informed that J. was an excellent shot and owned a 22 calibre rifle and a very heavy 45-70 calibre gun. The police subsequently spotted J. carrying two long-barrelled weapons. In the evening of the first day of the siege he fired several shots in the air and at the police. In the early hours of the following day the police used audible flares to locate J. and keep him indoors, from where he fired repeatedly through the windows and the skylight. He aimed some of the shots at the police. Around noon, when repeated negotiation attempts had failed, the officer in charge at the scene ordered the use of tear gas, which had no visible effect on J. The police also tried unsuccessfully to reach J. by telephone and by using a megaphone. At about 6 p.m. J. again fired shots and threw a gas canister and at least two “Molotov cocktails”. It appears that he set fire to the house. It was then decided that the only way to arrest him in the dark and smoke-filled conditions before he could escape was to order a police officer to shoot at his leg. J. was then shot in the right hand and the upper part of the right thigh and instructed to surrender. At about 7 p.m. he crawled out of the house with two weapons. He was hit by two shots fired simultaneously from one of the armoured vehicles, at a range of six metres. Both shots were aimed at his shoulder and arm, but owing to his position, the firing angle through the porthole of the armoured vehicle and the short time available, he was hit in the head and died shortly thereafter. During the siege a log was kept of the decisions made and actions taken. Afterwards, details were collected concerning the bullet holes in and around the building. The investigation, which started immediately, was carried out by the National Bureau of Investigation. At the request of J.’s family, certain additional lines of inquiry were followed during the pre-trial investigation. The autopsy report and the results of all the forensic and other investigations, as well as the reports on the siege, were included in the pre-trial documentation, together with a large number of witness statements. In 1995 the operation was also studied by a permanent investigation team set up by the Ministry of the Interior, which submitted a report within a year of the operation. Less than a year after the incident, the Public Prosecutor brought charges against Superintendent   H., commander of the special task force, of negligent homicide and negligent breach of official duty. After taking forensic and oral evidence the district court acquitted the defendant. The family was legally represented throughout the proceedings by experienced counsel. The lawyer acting on behalf of the applicant was able to examine key-witnesses, including the police officers who had fired their guns and those who had been in charge of the operation, and to make the submissions he wished to make in the course of the proceedings. Law – The shooting of J .:The Court saw no reason to doubt that the police officers involved honestly had believed that it was necessary to open fire to protect their colleagues who were without protection outside the armoured vehicles. Detached from the events in issue, the Court could not 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 to his life or the lives of others. The officers in question found themselves confronted by a man who emerged in the doorway with two guns and who had shot at the police on several occasions during the two-day siege. J. emerged from the house heavily armed. He had ignored previous warnings to give himself up and, in defiance of those warnings, had fired numerous shots in the air and at the police officers. Further, the police officers intended, not to kill J., but to immobilise him. The use of fire arms in the circumstances of the case, albeit highly regrettable given the lethal consequences, had not been disproportionate and did not exceed what was absolutely necessary to avert what was honestly perceived by the police officers to be a real and immediate risk to the lives of their colleagues. Moreover, the conduct of the operation had remained at all times under the control of senior officers and the deployment of the armed officers had been reviewed and approved by the officer in charge. The primary concern of the police had been to break the deadlock by persuasion. Numerous warnings had been shouted and he had been given ample opportunity to give himself up. These warnings had been ignored, however. Nor had J. answered the phone in the later stages of the siege although the police tried to reach him repeatedly. The efforts of a trained negotiator also had proved unsuccessful. The use of firearms by the police as well as the conduct of police operations of the kind in question were regulated by domestic law and a system of adequate and effective safeguards existed to prevent arbitrary use of lethal force. All the key officers concerned were trained in the use of firearms and their movements and actions were subject to the control and supervision of experienced senior officers. In conclusion, the killing of J. had resulted from the use of force which was no more than was absolutely necessary in defence of the lives of the personnel outside the armoured vehicles. The investigation :During the siege, a log had been kept. The investigation, which had started immediately after the events, had been carried out by the National Bureau of Investigation. There was no indication that its investigators had not been independent from those taking part in the police operation. In addition, the actions taken during the operation had been studied by a permanent investigation team set up by the Ministry of the Interior whose report was finalised within one year. J’s family had had at its disposal as much information as was commensurate with the defence of its interests. A considerable number of witnesses had given evidence, the investigation had included appropriate forensic examinations and the applicant’s counsel had been able to request additional investigations. Conclusion : no violation (unanimously).   © 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