CEDH · PRESS;GENERAL;ENG — 17 mars 2005

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .sD711EC90 { margin-left:31.52pt; padding-left:7.48pt; font-family:serif } .s1C7BEF1E { margin-left:28.52pt; padding-left:7.48pt; font-family:serif } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS   134 17.3.2005   Press release issued by the Registrar   CHAMBER JUDGMENT BUBBINS v. THE UNITED KINGDOM   The European Court of Human Rights has today notified in writing a judgment [1] in the case of Bubbins v. the United Kingdom (application no. 50196/99).   The Court held unanimously: that there had been no violation of Article 2 (right to life) of the European Convention on Human Rights on account of the actions of the armed police officer who had fired the shot killing the applicant’s brother and the planning and control of the operation (the “substantive head”); that there had been no violation of Article 2 on account of a failure to conduct an effective investigation (the “procedural head”).   The Court held by six votes to one: that there had been a violation of Article 13 (right to an effective remedy) of the Convention.   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 10,000 euros (EUR) for non-pecuniary damage and EUR 12,000 for costs and expenses.   (The judgment is available only in English.)   1.     Principal facts   The application was brought on behalf of Michael Fitzgerald, a deceased British national, by his sister, Theresa Bubbins, who lives in Bedford, England.   Mr Fitzgerald was shot dead by the police at his flat in Bedford following a siege on 26   February 1998.   Melanie Joy, Michael Fitzgerald’s girlfriend, arrived by car at his flat at 6.25 pm on 26   February and saw the legs of a man – whom she took to be an intruder – disappearing through the ground-floor kitchen window of the flat. Concerned for Mr Fitzgerald’s safety, she called through the letterbox. As there was no response, she rang the police. Only after the shooting was it discovered that the man was in fact Mr Fitzgerald returning home very drunk without his keys.   Following a police siege lasting almost two hours, Michael Fitzgerald appeared to aim a gun at one of the police officers. As he did not respond when ordered to drop the gun, the police officer fired one shot, which killed Mr Fitzgerald. Only on very close examination of Mr   Fitzgerald’s weapon, was it revealed to be a replica Colt.45 calibre self-loading pistol.   The matter was voluntarily referred to the Police Complaints Authority so that it could supervise an internal police investigation. The police investigation report was sent to the Director of Public Prosecutions, who concluded that there was no evidence to justify any criminal proceedings against any police officer.   Subsequently the Police Complaints Authority confirmed the findings of the police investigation that there was no wrongdoing on the part of the Bedfordshire police officers involved in the incident. The Police Complaints Authority was satisfied with the thoroughness of the investigation.   An inquest was held into Mr Fitzgerald’s death. After the Coroner had directed that as a matter of law the only possible verdict was lawful killing, the jury returned that verdict.   The applicant’s request for legal aid to pursue proceedings for judicial review of the inquest verdict was refused by the Area Committee of the Legal Aid Board, as was a subsequent appeal.     2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 25 May 1999 and declared admissible on 27 November 2003.   Judgment was given by a Chamber of 7 judges, composed as follows:   Boštjan M. Zupančič (Slovenian), President , Nicolas Bratza (British), Lucius Caflisch (Swiss) [2] , John Hedigan (Irish), Margarita Tsatsa-Nikolovska (Citizen of “the Former Yugoslav Republic of Macedonia”), Vladimiro Zagrebelsky (Italian), Alvina Gyulumyan (Armenian), judges , and also Vincent Berger , Section Registrar . 3.     Summary of the judgment [3]   Complaints   The applicant complained about her brother’s killing and the alleged inadequacy of the ensuing investigation, relying on Article 2 and Article 13.   Decision of the Court   Article 2 of the Convention   (a) Substantive head   As regards the actions of the police officer who had fired the fatal shot, the Court saw no reason to doubt that he had honestly believed that his life had been in danger and that it had been necessary to open fire on Michael   Fitzgerald in order to protect himself and his colleagues. Moreover, the Court could not substitute its own assessment of the situation for that of an officer who had been required to react in the heat of the moment to avert an honestly perceived danger to his life. The officer had found himself confronted by a man pointing a gun at him. That man had ignored previous warnings to give himself up and, in defiance of these warnings, had conveyed on occasions a clear impression that he would open fire. Even before discharging the fatal shot, the officer had shouted a final warning, which went unheeded.   For the Court, the use of lethal force in the circumstances of this case, albeit highly regrettable, had not been not disproportionate and had not exceeded what was absolutely necessary to avert what was honestly perceived by the police officer to be a real and immediate risk to his life and the lives of his colleagues.   As regards the planning and control of the operation, the Court observed that the conduct of the operation had remained at all times under the control of senior officers and that the deployment of the armed officers had been reviewed and approved by the tactical firearms advisers who had been summoned to the scene.   Furthermore the use of firearms by the police as well as the conduct of police operations of the kind at issue were regulated by domestic law and a system of adequate and effective safeguards existed to prevent arbitrary use of lethal force. In the present case, none of the key officers concerned had operated in a vacuum. They had all been trained in the use of firearms and their movements and actions had been subject to the control and supervision of experienced senior officers   It had therefore not been shown that there had been a failure to plan and organise the operation in such a way as to minimise to the greatest extent possible any risk to the life of Michael Fitzgerald.   In conclusion the killing of Michael Fitzgerald had resulted from the use of force which had been no more than was absolutely necessary and there had accordingly been no violation of Article 2 under its substantive limb.   (b) Procedural head   In connection with the alleged failure to comply with the procedural obligation to provide an effective investigation, the Court observed at the outset that it had already had occasion to conclude that the inquest procedure in England and Wales was capable of fulfilling the Article 2 requirements of an effective investigation into an alleged killing by State agents.   In the case under review the inquest had been held over a four-day period. Many witnesses had been heard. The jury had visited the scene of the incident. Even if refused legal aid, the family had been legally represented throughout the proceedings by experienced counsel. Although the Coroner had directed the jury to return a verdict of lawful death, this had not deprived the proceedings of their effectiveness. If an independent judicial officer such as a Coroner decided after an exhaustive public procedure that the evidence heard on all relevant issues clearly pointed to only one conclusion, and did so in the knowledge that his decision might be subject to judicial review, it could not be maintained that this decision impaired the effectiveness of the procedure.   There had therefore been no violation of the respondent State’s procedural obligations under Article 2 of the Convention.   Article 13 of the Convention   Although the Court had found that there had been no breach of Article 2 in this case, that did not prevent the applicant’s complaint under that Article from being “arguable” for the purposes of Article 13.   Although the inquest procedure had provided in the circumstances an effective mechanism for subjecting the circumstances surrounding the killing of Michael Fitzgerald to public and searching scrutiny, and had thereby satisfied the respondent State’s procedural obligations under Article 2, no judicial determination had ever been made on the liability in damages, if any, of the police on account of the manner in which the incident had been handled and concluded.   It was true that the Coroner’s jury had returned a verdict of lawful killing at the close of the inquest. However, that finding could not be said to have determined the issue of whether or not any civil liability attached to the police, a matter which had to be resolved in a different domestic fact-finding forum and according to different principles of law and in application of a different standard of proof.   The Court recalled that it had already had occasion to declare that in the case of a breach of Articles 2 and 3 of the Convention, compensation for the non-pecuniary damage flowing from the breach should, in principle, be available as part of the range of redress. In the instant case, the applicant, even if ultimately successful in a civil action against the police, had had no prospect of obtaining compensation for non-pecuniary damage since domestic law did not provide for such. On that account, it would also have been most improbable that she would have received legal aid to take civil proceedings. The Court accordingly concluded that there had been a breach of Article 13 of the Convention.       Judge Zagrebelsky expressed a partly dissenting opinion, which is annexed to the judgment.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. More detailed information about the Court and its activities can be found on its Internet site. [1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] Judge elected in respect of Liechtenstein. [3] This summary drafted by the Registry is not binding on the Court.