CEDH · CASELAW;CLIN;ENG — 13 novembre 2012

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .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 } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; 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. 157 November 2012 Van Colle v. the United Kingdom - 7678/09 Judgment 13.11.2012 [Section IV] Article 2 Positive obligations Article 2-1 Life Fatal shooting of a prosecution witness by accused in theft proceedings: no violation   Facts – The applicants’ son was a witness for the prosecution in criminal proceedings against a former employee who was charged with theft. While the case was pending, he received threatening and/or aggressive telephone calls and his car was damaged by fire (although he did not report it to the police as he believed the fire to have been accidental). He was shot dead by the accused just before the trial. A police disciplinary panel later found that the officer in charge of the investigation had not performed his duties diligently. The High Court and Court of Appeal found a violation of Article   2. However, applying the Osman * test the House of Lords found that there had been no breach of the positive obligation to protect life. Law – Article 2: The Court did not accept the applicants’ submission that the Osman test should be adapted by lowering the threshold for State responsibility when the State created the relevant risk for the deceased such as by calling him as a witness in criminal proceedings. The fact that the deceased may have been in a category of person who may have been particularly vulnerable was but one of the relevant circumstances to be assessed, in the light of all the circumstances, in order to answer the first of the two questions making up the Osman test of responsibility. The House of Lord had identified the correct Osman test. The first question to be addressed was then whether there had been any decisive stage in the sequence of events leading up to the fatal shooting when it could have been said the authorities had known or ought to have known of a real and immediate risk to the life of the applicants’ son. In this connection, the Court noted that the prosecution had not been noteworthy: the accused was a petty offender charged with minor theft offences and the risk of a custodial sentence was low. The applicants’ son was not the only or even the main witness in the proceedings. The accused’s record did not indicate a propensity to serious violence against the person or any unpredictability in that respect. There had been nothing to suggest he had used weapons before and he had had no recorded history of mental illness or instability. This absence of violent antecedents had contributed to the unforeseeability of later acts of grave violence. Accordingly, the fact that the applicants’ son had been a witness in the prosecution had not, of itself, given reason to fear for his life and this had been an important factor against which the additional risk factors had been examined. Moreover, facts that might have constituted an escalating situation of intimidation either had not been reported to the police officer concerned or had not amounted to a pattern of violence. Even if the question of whether the police “ought to have known” would have required the officer in charge of the investigation to make some further enquiries, this additional knowledge would not have led him to perceive the accused’s activities as life-threatening. Accordingly, while his failure to enquire further than he had done had been criticised by the police disciplinary panel as lacking in diligence, it could not be impugned from the standpoint of Article   2. Finally, the risk factors in the present case could not be said to have been greater than those in Osman in which no violation of Article   2 had been found. Accordingly, while the officer in charge of the investigation ought to have been aware that there was an escalating situation of intimidation of a number of witnesses, including the applicants’ son, it could not be said that there had been a decisive stage in the sequence of events leading up to the shooting when the officer had known or ought to have known of a real and immediate risk to the life of the applicants’ son from the accused. Conclusion : no violation (unanimously). The Court also found no violation of Article 8 of the Convention. *   Osman v. the United Kingdom , no.   23452/94, 28   October 1998.   © 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