(Application no. 1062/03)
17 December 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Golubeva v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Christos Rozakis, President,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 26 November 2009,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 1062/03) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Mariya Grigoryevna Golubeva (“the applicant”), on 6 December 2002.
2. The applicant, who had been granted legal aid, was represented by Mr A. Brykin, a lawyer practising in the Altayskiy Region. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
3. The applicant complained, in particular, about the killing of her partner by the police.
4. On 5 May 2008 the President of the First Section decided to communicate the above complaint to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).
5. On 27 August 2009 the President made a decision on priority treatment of the application (Rule 41 of the Rules of Court).
6. The Government objected to the joint examination of the admissibility and merits of the application. Having examined the Government's objection, the Court dismissed it.
I. THE CIRCUMSTANCES OF THE CASE
7. The applicant was born in 1930 and lives in the town of Biysk in the Altayskiy Region.
A. Events of 24 August 1999
1. The applicant's version of the events
8. The applicant stated that the residents of her block of flats were embroiled in a conflict with a group of teenagers who frequently gathered in front of the building to drink alcohol, litter the yard and make noise until late at night.
9. On 24 August 1999 several residents, including the applicant and her partner Mr Sh., tried to disperse the teenagers. A quarrel followed. One of the teenagers swore at them. Mr Sh. retorted that “youngsters like these should be killed”. The teenagers ran immediately to the nearby police station where they complained that Mr Sh. had threatened them with a gun and had fired a shot at them.
10. Several minutes later several police officers came running to the spot and required that Mr Sh. surrender his gun. They were drunk. Mr Sh. denied having a gun. The applicant told him to go home and he left. The policemen did not attempt to stop him.
11. After a while the police officers decided to arrest Mr Sh. and rang his doorbell. Mr Sh. refused to open it. The neighbourhood police officer (участковый) Mr T. was determined to get into the apartment through the balcony and called the fire brigade, which brought an extension ladder.
12. Mr T. and another police officer, Mr K., climbed the ladder and broke the balcony window. The applicant heard two shots. She believed that Mr T. had fired the first shot at Mr Sh. and then fired in the air. When she entered the flat she saw that Mr Sh. was dead.
2. The police officers' version
13. At about 5 p.m. on 24 August 1999 the neighbourhood police officer Mr T. heard a gunshot and saw several teenagers running towards him. They said that a man had just fired a shot at them and pointed at Mr Sh. He saw Mr Sh. give something to the applicant, who then entered the building. He ran after her and made her come back. At that time other police officers arrived on the scene.
14. Mr Sh. behaved aggressively, in particular brandishing a shovel at the police officers, and Mr T. thought that he was drunk. He ordered Mr Sh. to surrender his gun. Mr Sh. denied having any weapon. Mr T. wanted to search him but was prevented from doing so by other residents of the block of flats. Mr Sh. took advantage of the situation and escaped to his flat. He locked the door and refused to let Mr T. in. Mr T. asked the applicant to open the door or give him the key, but she refused.
15. Mr T. asked one of the police officers to watch the door. He then called the police officer on duty and asked for instructions. The police officer instructed him to force the door open and arrest Mr. Sh. As he was unable to force the door open, Mr T. decided to get into the flat through the balcony and asked the officer on duty to call the fire brigade. At that moment a patrol team arrived at the scene.
16. Once the fire brigade had arrived, Mr T. and a police patrol officer Mr K. climbed the extension fire ladder. Mr Sh. attempted to prevent them from entering the balcony. He threatened to kill them and brandished a gun-like object. Mr T. ordered Mr Sh. to lay down his weapon, warned him that he would shoot and fired in the air. Mr Sh. hit Mr T. on the head with the heavy metal object he was holding. Mr K., who was standing behind Mr T. on the ladder, saved him from falling from the third floor. When Mr Sh. attempted to hit Mr T. a second time, Mr T. shot at Mr Sh., fatally wounding him. The police officers carried Mr Sh. into the bedroom and immediately called an ambulance. The doctors certified Mr Sh. dead and examined Mr T.
B. Internal inquiry by the Interior Department of the Altayskiy Region
17. The Interior Department of the Altayskiy Region conducted an internal inquiry into the incident. Having inspected the scene of the incident and having questioned the police officers involved, it established the following facts:
- Mr T. and other police officers believed that Mr Sh. was armed as they had heard a gunshot and witnesses had stated that he had fired at them;
- Mr Sh. had been aggressive and apparently drunk;
- the residents of the block of flats prevented Mr T. from searching Mr Sh. and, by retaining the police officers, gave him an opportunity to escape to his flat;
- Mr T. called the police station of the Vostochniy District of Biysk for instructions. The police officer on duty, Major D., told him to call the Biysk police station;
- Mr T. called the Biysk police station. The police officer on duty, Major P., ordered him to force the door open and arrest Mr Sh. Mr T. explained to Major P. that he would be unable to force the door open as he did not have the requisite equipment. He further stated that it would be possible to access the flat through the balcony. Major P. called a fire brigade;
- After Mr T. and Mr K. had climbed up an extension fire ladder, Mr Sh. barred their access to the balcony and brandished a gun-like object at them;
- Mr T. ordered Mr Sh. to put down his weapon and fired a warning shot in the air;
- Mr Sh. hit Mr T. on the head and nearly threw him down from the third floor. After Mr Sh. had attempted to hit Mr T. a second time, Mr T. fired at him;
- The police officers called an ambulance. The ambulance doctors established that Mr Sh. was dead and that Mr T. had concussion.
18. In his report of 23 September 1999 an acting head of the Interior Department of the Altayskiy Region concluded that Mr T. had acted in compliance with the rules governing the conduct of the police. The use of weapon had been justified by the circumstances and lawful in accordance with section 15 (1)(2) of the Police Act. On the other hand, he found that the casualty had occurred as a result of negligence on the part of the officers on duty, Major D. and Major P., who had not recorded the information received from Mr T., had not informed their superiors about the on-going incident and had not sent reinforcements to Mr T. He ordered that Major D. be demoted and Major P. be reprimanded. He further reprimanded the head of the police station of the Vostochniy District of Biysk and the head of the Biysk police station for unsatisfactory training and poor discipline of their subordinate officers.
C. Criminal investigation
19. On 24 August 1999 the prosecutor's office of the Priobskiy District of Biysk opened criminal proceedings in respect of Mr Sh.'s resistance to the police.
20. On the same day the prosecutor's office inspected the flat and seized a metal pestle stained with blood. No gun was found in the flat.
21. On 25 August 1999 the case was transferred to the prosecutor's office of the Vostochniy District of Biysk. The prosecutor's office inspected the flat anew and seized a cartridge case.
22. On 25 August 1999 the experts performed an autopsy on Mr Sh.'s body. They noted a gunshot wound to his chest and several bruises and abrasions to his body and head. The experts described Mr Sh.'s position at the moment of the shot and the trajectory of the bullet. They concluded that the wound had been fatal. They further stated that it was highly probable that the bruises and abrasions on Mr Sh.'s face had been the result of his falling and hitting a hard object, while the bruises on his wrists, right arm, chest and right buttock had been caused as a result of his being gripped and dragged. All injuries had been inflicted shortly before the death, most likely while he was dying. The level of alcohol in Mr Sh.'s blood and urine showed that he had been moderately intoxicated.
23. On 7 October 1999 an expert examined Mr T.'s medical record. He noted that on 24 August 1999 Mr T. had been taken to hospital, where he had remained until 7 September 1999. He had been diagnosed with an injury to his head and concussion. The expert concluded that the injury could have been received on 24 August 1999. He also noted that there was no indication of alcohol intoxication in Mr T.'s medical record.
24. On 22 October 1999 experts carried out blood group tests. The tests revealed that the blood on the pestle could have been Mr Sh.'s. It could not have been Mr T.'s.
25. On 26 October 1999 a ballistic examination was performed.
26. The prosecutor questioned Mr T. and the applicant, who gave their versions of the incident. One of the teenagers was also questioned. She testified that Mr Sh. had been in possession of a gun and had fired at her and her friends.
27. On 24 October 1999 the prosecutor's office of the Vostochniy District discontinued the criminal proceedings, those against Mr Sh. because he was dead, and those against Mr T. for the absence of corpus delicti in his actions.
28. On 23 November 1999 the decision was annulled by a supervising prosecutor, who transferred the case to the prosecutor's office of Biysk and ordered an additional inquiry.
29. In the course of the additional inquiry the prosecutor questioned police officer Mr K. and other police officers who had participated in the incident of 24 August 1999. They confirmed Mr T.'s testimony.
30. The teenagers testified unanimously that Mr Sh. had threatened them with a gun and had fired at them. They also stated that Mr Sh. had quarrelled with the police officers and had brandished a shovel at them.
31. The residents of the applicant's block of flats testified that Mr Sh. had not had any weapon and had not fired at the teenagers. The policemen who had been called by the teenagers had been drunk and had behaved rudely. When Mr Sh. had expressed his intention to leave, the policemen had not tried to stop him. However, subsequently they had decided to enter his flat through the balcony and arrest him. Although all the residents had assured them that Mr Sh. did not present any danger and had urged them to postpone the inquiry into the incident until the following morning, the police officers persisted in their attempt to arrest Mr Sh. immediately. In the witnesses' opinion climbing onto the balcony had been inopportune and unnecessary. They had all heard the police officer fire two shots. Some of them stated that the first shot had been aimed at Mr Sh. and the second in the air.
32. One of the applicant's neighbours, Mr G., stated that on 24 August 1999 he had been in his flat. He had heard a gunshot and looked out of the window. He had seen a man chasing a group of teenagers. A police officer had appeared and tried to arrest them. However, several women had prevented the police officer from approaching the man who had escaped to his flat. He had then seen two police officers climbing an extension ladder and attempting to access the balcony of the man's flat. He had heard one of the policemen shout a warning, fire in the air and, several moments later, fire a second shot. The police officer had then accessed the balcony. Mr G. was sure that the first shot had been fired in the air but he could not tell what the direction of the second shot had been. He stated firmly, however, that both shots had been fired while the police officer was still on the ladder and not yet on the balcony.
33. The prosecutor's office also questioned Major D. and Major P., who had been on duty on 24 August 1999 and had given instructions to Mr T. on the telephone. They denied giving any orders to Mr T. They had had the impression that Mr T. was strongly convinced that Mr Sh. was armed. They had offered to send reinforcements, but Mr T. had declined. Mr T. had asked for permission to enter the flat through the balcony, and that permission had been given to him.
34. The prosecutor studied the ambulance records. Mr T. had been examined by the ambulance doctors who had been called to the scene on 24 August 1999. The records did not contain any indication that he had been intoxicated.
35. Finally, the prosecutor questioned a ballistic expert who described the bullet trajectory. In particular, she stated that the bullet had gone upwards then ricocheted to the right and back. She also affirmed that a forensic simulation of the incident on the balcony would be inconclusive. It would be impossible to simulate identically the conditions in which the shooting had occurred, for the following reasons: firstly, blank bullets had a different trajectory as compared with live bullets; secondly, it would be necessary to simulate the position of the person who had fired the shot to within a millimetre, otherwise the bullet would ricochet differently.
36. On 10 January 2000 the prosecutor's office of Biysk discontinued the criminal proceedings for lack of corpus delicti in Mr T.'s actions. It found that Mr T. had used his weapon in lawful self-defence from an attack by Mr Sh. His actions had been in conformity with the Police Act.
37. On 25 April 2000 the decision was annulled by a supervising prosecutor who ordered an additional inquiry.
38. On 9 June 2000 the prosecutor's office of Biysk discontinued the criminal proceedings for the same reasons as before. On 8 May 2001 the supervising prosecutor ordered that the criminal proceedings be resumed. The case was transferred to the prosecutor's office of the Altayskiy Region.
39. On 21 August 2001 the prosecutor's office of the Altayskiy Region reconsidered the previous decision to discontinue the criminal proceedings against Mr Sh. It found that the proceedings should have been discontinued on the ground of lack of corpus delicti in his actions rather than on the ground of his death. There was no evidence that Mr Sh. had been armed, let alone that he had fired at the teenagers. It followed from the witness statements that he had not offered any resistance to the police officers who had arrived at the scene and that the police officers had not attempted to stop him from leaving. After he had locked himself in his flat he could no longer disturb public order, so Mr T.'s and the other police officers' attempts to enter his flat through the door or the balcony and arrest him had been unlawful and unjustified. By resisting those attempts Mr Sh. had been defending his constitutional right to respect for the privacy of his home and his liberty. Mr Sh. had been found in his underwear, which showed that he had been resting when Mr T. had tried to access his balcony. Mr T.'s statement that Mr Sh. had hit him with a pestle was open to doubt as the pestle had been found in the bedroom rather than on the balcony. Moreover, the expert examination had revealed that the blood on the pestle had been Mr Sh.'s. Accordingly, Mr Sh.'s actions had not constituted any administrative or criminal offence. Mr T. had abused his office and had unlawfully and unjustifiably used his weapon against Mr Sh.
40. On 27 August 2001 the prosecutor's office of the Altayskiy Region resumed the investigation against Mr T.
41. On 31 August 2001 the applicant was granted victim status and joined the proceedings as a civil party.
42. On 11 September 2001 Mr T. was formally charged with murder, abuse of office associated with the use of violence or entailing serious consequences, and breach of the inviolability of the home, offences under Articles 105 § 1, 286 § 3 and 139 § 3 of the Criminal Code.
43. On 15 October 2001 the prosecutor's office of the Altayskiy Region prepared a bill of indictment. It analysed the collected evidence and concluded that the use of lethal force against Mr Sh. had not been justified by the circumstances. It found that after receiving the report that Mr Sh. had fired a shot at the teenagers Mr T. should have verified that information by questioning eyewitnesses to the incident and inspecting the area in search of a cartridge case. He had failed to search the area, however. The eyewitnesses had affirmed that Mr Sh. did not have any weapon and no weapon had subsequently been found in his flat. In those circumstances, Mr T. could not have had a reasonable suspicion that Mr Sh. had committed criminal or administrative offences. Moreover, after he had locked himself in his flat he could no longer present any danger to the public. There had therefore been no reason to arrest him. In any event, before proceeding with the arrest, Mr T. should have contacted his superior to ask for detailed instructions. He had not done so. Finally, Mr T. had had no legal grounds for using his weapon against Mr Sh. Although Mr Sh. had indeed showed resistance, he had acted lawfully to protect his legitimate interests, namely, the privacy of his home and his liberty. By attempting to enter Mr Sh.'s flat through the balcony and by shooting him, Mr T. had abused his office, had trespassed on Mr Sh.'s home and had committed murder. He had committed criminal offences punishable by Articles 286 § 3, 139 § 3 and 105 § 1 of the Criminal Code. The prosecutor also examined the origin of the bruises and abrasions on Mr Sh.'s face and body. Referring to the expert opinion, he concluded that some of the injuries had been the result of Mr Sh.'s falling on the floor after being shot, while the remaining ones had been inadvertently caused when he had been carried to the bedroom by Mr T. and another police officer.
44. On the same day Mr T. was committed for trial before the Vostochniy District Court of Biysk.
45. The Vostochniy District Court of Biysk refused to admit the expert opinions of 1999 in evidence, as they had been made in the context of criminal proceedings against Mr Sh. The court commissioned additional expert opinions. The experts conducted their examination and submitted their report in April 2002 confirming the conclusions drawn by the experts in 1999.
46. During the hearing the accused and the witnesses confirmed their previous statements. The applicant was present at the hearings and made oral submissions to the court.
47. On 19 June 2002 the Vostochniy District Court of Biysk acquitted Mr T. of all charges. The court was convinced by the teenagers' and the police officers' testimony and Mr G.'s statements that Mr Sh. had indeed possessed a gun and had used it, and that he had offered resistance to the police officers who were trying to search him and stop him from escaping to his flat. Although the gun had never been found, the court surmised that Mr Sh. could have thrown it away after he had left the scene. As the prosecution had not searched the surroundings, such a possibility could not be excluded. The court gave the accused the benefit of the doubt and assumed that Mr Sh. had been armed. More importantly, after questioning the teenagers Mr T. had formed the conviction that Mr Sh. had been in possession of a weapon and had been a danger to the public. In those circumstances, his decision to arrest Mr Sh. immediately had been reasonable and justified. As Mr Sh. had refused to let Mr T. in, the applicant had refused to give the key to the police officers and it had been impossible to force the door open, Mr T. had taken a correct and lawful decision to climb up onto the balcony. That decision had been approved by the duty officer of the Vostochniy District of Byisk and the duty officer at Byisk police station.
48. The court further found that the use of lethal force had been necessary in the circumstances as Mr Sh. had offered resistance and put Mr T.'s life in danger. The court established that after Mr T. had climbed up the extension fire ladder onto the balcony on the third floor Mr Sh. had barred his access to the balcony and attempted to throw him down. In accordance with the rules governing the conduct of policemen, Mr T. had fired a warning shot. Given that Mr Sh. had attempted to push him down again, Mr T. had fired at him. The court found that Mr T.'s life had been in peril and that he had acted in reasonable self-defence and in compliance with the Police Act. The court finally noted that an internal inquiry by the Interior Department of the Altayskiy Region had concluded that Mr T. had been sober. The court refused to hear a civil claim by the applicant.
49. The prosecutor appealed to the Altayskiy Regional Court. The applicant also lodged an appeal, but the Altayskiy Regional Court refused to hear it, finding that the applicant did not have victim status.
50. On 15 August 2002 the Altayskiy Regional Court examined the prosecutor's appeal and dismissed it. It endorsed the reasoning of the trial court and upheld the acquittal.
II. RELEVANT DOMESTIC LAW
A. The Criminal Code
51. Murder is punishable by six to fifteen years' imprisonment (Article 105 § 1 of the Criminal Code).
52. Abuse of office associated with the use of violence or entailing serious consequences carries a punishment of up to ten years' imprisonment (Article 286 § 3 of the Criminal Code).
53. Breach of the inviolability of the home, that is, unlawful entry into a home against the will of its occupants, associated with abuse of office, is punishable with a fine, a prohibition on occupying certain positions, or up to three years' imprisonment (Article 139 § 3 of the Criminal Code).
54. Anyone who has caused damage to an attacker when acting in legitimate defence, that is, in self-defence or in defence of another person or the public interest, is exempted from criminal liability provided that he has not exceeded the bounds of legitimate defence. Anyone, irrespective of his or her professional or other special training or position, is entitled to exercise legitimate defence. A person is entitled to exercise legitimate defence even in situations where it is possible to avoid the dangerous attack or ask for help from other persons or authorities. The bounds of legitimate defence are exceeded if a person deliberately commits actions that are clearly disproportionate to the nature and degree of dangerousness of the attack (Article 37).
55. Anyone who has caused damage to a perpetrator of a criminal offence when arresting that person for the purpose of bringing him or her before the competent authorities or preventing him or her from committing a further criminal offence is exempted from criminal liability, provided that it was impossible to arrest the offender by other means and the force used did not exceed what was necessary in the circumstances. The force used may not be considered necessary if it is clearly disproportionate to the nature and degree of dangerousness of the criminal offence committed and the circumstances in which the arrest is effected, or if the damage caused is clearly excessive and unwarranted by the circumstances. Criminal liability arises only if such damage has been deliberately caused (Article 38).
B. The Police Act
56. The Police Act (no. 1026-I of 18 April 1991 with further amendments) provides that the duties of the police are, among others, the prevention and suppression of criminal and administrative offences and the protection of public order and public safety (section 2).
(2) search citizens and their belongings if there are sufficient reasons to believe that they possess weapons, ammunition, explosives or drugs;
(7) arrest persons suspected of a criminal offence or persons who have been remanded in custody by a judicial order;
(18) enter property or land belonging to citizens or companies and search it in pursuit of a person suspected of a criminal offence or if there are sufficient grounds to believe that a criminal offence has been or is being committed there or an accident has happened there, or in order to protect public order and the personal security of citizens in cases of natural or anthropogenic disaster, or epidemic, epizootic or public disorder. A prosecutor must be informed within twenty-four hours of any entry into private premises or land performed against the will of the owner;
(20) cordon off, following a decision by the head or a deputy head of the relevant police station, a specific area for the purpose, inter alia, of catching a person suspected of a criminal offence;
(22) temporarily limit or bar access of vehicles and pedestrians to a specific area, or require them to leave a specific area for the purpose of protecting citizens' life, health and property or conducting a search or investigative measures (section 11).
58. The police may use physical force, special equipment or a weapon only in the circumstances specified in the Police Act and in accordance with the rules prescribed by that Act. Police officers must undergo specific training and be periodically tested for their fitness to act in conditions requiring use of physical force, special equipment or a weapon (section 12(1) and (2))
59. Before using physical force, special equipment or a weapon the police officer must:
- warn of his intention to use physical force, special equipment or a weapon and give the person concerned sufficient time to comply with his order, except in cases where the delay in using physical force, special equipment or a weapon creates an immediate danger for the life and health of citizens and police officers, is likely to cause other serious consequences or where the warning is impossible or impracticable in the circumstances;
- endeavour to minimise the damage caused by the use of physical force, special equipment or a weapon, to the extent possible depending on the nature and seriousness of the offence, dangerousness of the person who has committed it and degree of resistance offered;
- ensure that anyone who has been injured as a result of use of physical force, special equipment or a weapon receives first aid and that their relatives are informed without delay;
- inform a prosecutor of any use of physical force, special equipment or a weapon involving injuries or death (section 12(3)).
60. Abuse of the power to use physical force, special equipment or a weapon is punishable by law (section 12(4)).
61. Police officers may use physical force, including martial arts, to stop a criminal or administrative offence being committed, arrest persons who have committed a criminal or administrative offence or overcome resistance to a lawful order, if non-violent methods are insufficient to ensure discharge of the police duties (section 13).
62. Special equipment (truncheons, handcuffs, tear gas, electroshock devices, equipment for destroying barriers, etc.) may be used, inter alia, to overcome a person's resistance to the police, arrest a person caught in the act of committing a crime against life, health or property and attempting to escape, or a person who is reasonably suspected of intending to offer armed resistance to the police (section 14).
63. Police officers may use weapons, inter alia, to repel an attack on a police officer if his life and health are in danger (section 15(1)(2)) or to arrest a person caught in the act of committing a serious crime against life, health or property and attempting to escape or a person offering armed resistance (section 15(1)(4)). The head of the relevant police station must be informed, within twenty-four hours, of any use of a weapon (section 15(4)). It is prohibited to use weapons which may cause unnecessarily serious injuries or involve unjustifiably high risks (section 15(6)).
64. A police officer may pull out his weapon and prepare it for use if he believes that circumstances referred to in section 15 may arise in the situation. If the arrestee attempts to come closer to the armed police officer than the latter allows or attempts to touch his weapon, the police officer may use his weapon in accordance with section 15(1)(2) (section 16).
65. Police officers are not liable for any physical, pecuniary or non-pecuniary damage caused to the offender as a result of the use, in accordance with this Act, of physical force, special equipment or a weapon if that damage is proportionate to the resistance offered (section 23(3)).
66. The provisions of the Criminal Code concerning exemption from criminal liability for damage caused, in particular, in legitimate defence, when arresting a person who has committed a criminal offence or in pursuance of a lawful order are applicable to police officers (section 24).
C. Rules governing the conduct of police officers
1. Duties and responsibilities of neighbourhood police officers
67. The Instruction on duties and responsibilities of a neighbourhood police officer, adopted by the Interior Ministry on 14 July 1992 (Order no. 231), provides that a neighbourhood police officer (участковый) is a representative of a town or district police office in a neighbourhood. His duties include, inter alia, the protection of the personal safety and property of citizens, the protection of public order and public safety and the prevention and suppression of criminal and administrative offences within the neighbourhood for which he is responsible (paragraphs 1.2 and 1.3).
68. If a neighbourhood police officer receives information about a criminal or administrative offence or other events endangering personal or public safety he must immediately inform the police officer on duty at the relevant police station and take the measures required by law. In particular, he must take measures to guard the crime scene, find witnesses, administer first aid to victims, find and arrest the suspected offender, and find and seize stolen property, the instruments of the crime and other material evidence (paragraph 3.4).
69. A neighbourhood police officer may order that citizens and officials cease committing a criminal or administrative offence or any other activity hindering the police's lawful actions (paragraph 4.1). In cases specified by law he may arrest and search a person or his/her belongings and may also seize weapons and other objects and documents found during the search (paragraph 4.5). A neighbourhood police officer may enter residential or other premises and land belonging to citizens or companies and search them in pursuit of a person suspected of having committed a criminal offence or if there are sufficient grounds to believe that a criminal offence has been or is being committed there or an accident has happened there, or in order to protect public order and the personal security of citizens in cases of natural or anthropogenic disaster, or epidemic, epizootic or public disorder. A prosecutor must be informed within twenty-four hours of any entry into private premises or land performed against the will of the owner (paragraph 4.9). A neighbourhood police officer may arrest and bring to a police station a person suspected of having committed a criminal offence or other persons in the cases prescribed by law (paragraph 4.10). He may carry a weapon and other special equipment and use them in the cases specified in the Police Act (paragraphs 4.19 and 4.20).
2. Duties and responsibilities of duty police officers
70. The Instruction on cooperation between interior departments and services in investigation of crimes, adopted by the Interior Ministry on 20 June 1996 (Order no. 334), provides that if a police officer on duty at a police station receives information about a criminal offence he must send a quick reaction team and a patrol team to guard the crime scene, to cut off the offenders' escape routes or block off their hiding places, to arrest the offenders and to take witness evidence. He must also send an investigation team supplied with the requisite communication facilities, investigative equipment and vehicles. The duty police officer must keep in contact with the police officers at the scene in order to receive up-to-date information about the situation and make decisions about additional measures, and to inform the police officers at the scene of any relevant data contained in the police databases. The duty police officer must immediately inform his superior and the officer on duty at the higher-level police station of the criminal offence and then keep them informed of the measures taken (paragraph 2.1).
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
71. The applicant complained that the killing of Mr Sh. by the police and the acquittal of the police officer who had shot him constituted a violation of Article 2 of the Convention, which reads as follows:
“1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
72. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. Submissions by the parties
73. The applicant complained that the killing of Mr Sh. had not been absolutely necessary in the circumstances. She referred to the prosecutor's decision of 21 August 2001 finding that Mr Sh. had not committed any administrative or criminal offences and had not been armed. She further submitted that her neighbours had attempted to dissuade Mr T. and other police officers summoned by the teenagers from arresting Mr Sh., stating unanimously that he had no weapon and was not dangerous. Mr T. had ignored their assurances of Mr Sh.'s good conduct, however, and stubbornly persisted in his attempts to enter Mr Sh.'s flat and arrest him. The police officers had finally climbed up onto his balcony and shot him five hours after the quarrel with the teenagers had taken place. During those five hours Mr Sh. had remained quietly and inoffensively in his flat and the police had had plenty of time and opportunity to check whether he had indeed been armed and prepare the arrest operation carefully. The applicant stated in conclusion that the police officers' careless and unprofessional actions had resulted in her partner's death.
74. The applicant further submitted that the investigation into the killing of her partner had been ineffective because of a combination of shortcomings. She made the following complaints, in particular:
(i) the first inspection of the crime scene had been negligent as the cartridge case had not been found until the second inspection the following day;
(ii) the investigation had not explained the origin of the bruises and abrasions on Mr Sh.'s body;
(iii) the investigator had refused to perform a forensic simulation of the incident;
(iv) the internal inquiry concluding that Mr T. had lawfully used his weapon against Mr Sh. had been performed by a body that could not be considered as independent;
(v) the findings contained in the internal inquiry report and in Mr T.'s acquittal judgment had contradicted the prosecutor's final decision of 21 August 2001 terminating criminal proceedings against Mr Sh. for lack of corpus delicti in his actions;
(vi) the criminal investigation had been discontinued and resumed many times;
(vii) the expert opinions of 1999 had been made before the institution of criminal proceedings against Mr T., which had resulted in the trial court's refusal to admit them in evidence; and
(viii) the trial court had not explained why it had based its judgment on witness statements corroborating the police officers' version of the events and discredited witness statements confirming the applicant's version.
75. The Government submitted that the killing of Mr Sh. had been lawful, pursued legitimate aims and had been necessary in a democratic society. Mr Sh. had been reasonably suspected of a criminal offence. That suspicion had been based on a complaint from several teenagers who had accused Mr Sh. of firing a shot at them. Mr Sh. had moreover behaved aggressively towards the police officers and brandished a shovel at them. Mr T. had therefore had a duty to arrest him. However, Mr Sh. had resisted arrest by escaping to his flat, locking himself inside and refusing to abide by the lawful orders of the police officers requiring that he let them in. In those circumstances, the only means of effecting Mr Sh.'s lawful arrest had been to enter his flat through the balcony. Mr Sh. had attempted to throw Mr T. off the balcony, thereby putting Mr T.'s life in danger and compelling him to defend himself. Mr T. had acted in accordance with the rules governing the use of weapons by the police as, before shooting at Mr Sh., he had shouted a warning and fired a warning shot in the air. He had therefore done everything in his power to arrest Mr Sh. without using force or weapons against him, but the use of lethal force had been made necessary by Mr Sh.'s aggressive and un-cooperative behaviour.
76. The Government argued that the domestic authorities had conducted an effective investigation into the fatal accident. The investigation had started without delay, with the inspection of the crime scene performed immediately after the accident had occurred. The investigation had been conducted by the prosecutor's office, which was independent from the police. The prosecutor had commissioned six expert opinions, which had been made by independent experts. He had also questioned twenty witnesses. Although the investigation had been discontinued on several occasions, it had subsequently been resumed, which, in the Government's opinion, showed that the domestic authorities had been intent on correcting possible shortcomings in the investigation and bringing those responsible to justice. Indeed, Mr T. had been charged and committed for trial. The fact that he had eventually been acquitted had not made the investigation and the judicial proceedings ineffective. The trial court had carefully examined all the circumstances, had heard both prosecution and defence witnesses and had examined evidence submitted by all parties, including the applicant. The Court had no reason to question the findings made by the domestic courts.
77. In reply to the applicant's criticisms, the Government submitted that the inspections of the scene of the accident had been carried out in accordance with the procedure prescribed by law; the applicant had never disputed the lawfulness or correctness of the inspection reports. In respect of the refusal to perform a forensic simulation of the incident, the Government referred to the expert opinion finding that such simulation would be inconclusive (see paragraph 35 above). The Government concluded that the investigation conducted by the domestic authorities had been thorough and independent.
2. The Court's assessment
(a) General principles
78. Article 2, which safeguards the right to life and sets out the circumstances in which deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. Together with Article 3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The circumstances in which deprivation of life may be justified must therefore be strictly construed. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see Andronicou and Constantinou v. Cyprus, 9 October 1997, § 171, Reports of Judgments and Decisions 1997-VI, and Huohvanainen v. Finland, no. 57389/00, § 92, 13 March 2007).
79. The text of Article 2, read as a whole, demonstrates that it covers not only intentional killing but also the situations where it is permitted to “use force” which may result, as an unintended outcome, in the deprivation of life. Any use of force must be no more than “absolutely necessary” for the achievement of one or more of the purposes set out in sub-paragraphs (a) to (c). This term indicates that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is “necessary in a democratic society” under paragraphs 2 of Articles 8 to 11 of the Convention. Consequently, the force used must be strictly proportionate to the achievement of the permitted aims (see Kelly and Others v. the United Kingdom, no. 30054/96, § 93, 4 May 2001).
80. In keeping with the importance of Article 2 in a democratic society, the Court must, in making its assessment, subject deprivations of life to the most careful scrutiny, particularly where deliberate lethal force is used, taking into consideration not only the actions of the agents of the State who actually administer the force but also all the surrounding circumstances including such matters as the planning and control of the actions under examination. In determining whether the force used is compatible with Article 2, it may therefore be relevant whether a law-enforcement operation has been planned and controlled so as to minimise to the greatest extent possible recourse to lethal force or incidental loss of life (see Bubbins v. the United Kingdom, no. 50196/99, §§ 135-36, ECHR 2005-II (extracts), and McCann and Others v. the United Kingdom, 27 September 1995, §§ 150 and 194, Series A no. 324).
81. Furthermore, the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. The essential purpose of such an investigation is to secure the effective implementation of the domestic laws safeguarding the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility (see Makaratzis v. Greece [GC], no. 50385/99, § 73, ECHR 2004-XI). What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures (see Kelly and Others, cited above, § 94, and, mutatis mutandis, İlhan v. Turkey [GC] no. 22277/93, ECHR 2000-VII, § 63).
(b) Application to the present case
82. It is common ground between the parties that the death of the applicant's partner, Mr Sh., resulted from the use of lethal force by the police. The Court will firstly assess the adequacy of the investigation into the death of Mr Sh. It will then turn to the establishment of the disputed facts and the assessment of the actions of those agents of the State who actually administered the force. Lastly, it will review the planning and control of the actions under examination.
(i) Concerning the procedural obligation under Article 2 of the Convention
83. The domestic authorities conducted an internal inquiry and a criminal investigation into the killing of the applicant's partner by the police. The Court must ascertain whether those proceedings were effective for the purposes of Article 2.
84. According to the Court's constant case-law, for an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for carrying out the investigation to be independent from those implicated in the events (see Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 325, ECHR 2007-..., and Öğur v. Turkey, [GC] no. 21954/93, ECHR 1999-III, §§ 91-92). The investigation must also be effective in the sense that it is capable of ascertaining the circumstances in which the incident took place and of leading to a determination of whether the force used was or was not justified in the circumstances and to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. A requirement of promptness and reasonable expedition is implicit in this context. Any deficiency in the investigation which undermines its capability of establishing the circumstances of the case or the person responsible is liable to fall foul of the required standard of effectiveness (see Leonidis v. Greece, no. 43326/05, § 68, 8 January 2009, and Anguelova v. Bulgaria, no. 38361/97, § 139, ECHR 2002-IV).
85. Turning to the circumstances of the present case, the Court observes that the Interior Department of the Altayskiy Region conducted an internal inquiry into the incident. That inquiry ended with a report finding that Mr T., the police officer who had shot the applicant's partner, had acted lawfully, while two police officers on duty on that day had been negligent in the performance of their duties to supervise the operation. Those police officers and their superiors were disciplined (see paragraph 18 above). The Court considers that the internal inquiry could not be regarded as adequate for the purposes of Article 2 as it was conducted by the Interior Department hierarchically linked to the police officers involved in the incident. It therefore lacked the necessary independence (see, mutatis mutandis, Jašar v. the former Yugoslav Republic of Macedonia (dec.), no. 69908/01, 11 April 2006).
86. In parallel with the internal inquiry, a criminal investigation was conducted into the death of the applicant's partner. That investigation was at all stages carried out by a prosecutor's office that was not connected with the police either structurally or factually. The Court is therefore satisfied that the persons conducting the criminal investigation were independent from the police officers implicated in the events. It remains to be assessed whether the investigation was thorough and prompt.
87. The criminal investigation was opened immediately after the fatal incident had happened. The scene of the incident was inspected on the same day and an autopsy on Mr Sh.'s body was performed on the following day. Several expert opinions were prepared within two months and all eye-witnesses, including the applicant, her neighbours, the teenagers and the police officers involved, were promptly questioned. The Court notes that there was a delay in the progress of the investigation which occurred due to the criminal proceedings being discontinued and resumed several times during the period between January 2000 and August 2001. That delay, although regrettable, did not affect the overall effectiveness of the investigation. It did not result in the loss of evidence or other irremediable defects, as by that time all the relevant evidence had been collected and documented. Indeed, in September 2001 the prosecutor's office of the Altayskiy Region reviewed the evidence gathered in the course of the investigation and decided to bring charges against the police officer who had shot Mr Sh. In October 2001 the bill of indictment was drafted and the case was referred for trial.
88. The Court is not convinced by the applicant's argument that the domestic authorities failed to investigate the origin of the bruises and abrasions on her partner's body. It transpires from the documents submitted by the parties that the experts who had made the autopsy gave a detailed description of the injuries, and indicated the time and probable manner of their occurrence. The prosecutor's office also inquired into the origin of the injuries and, relying on the expert report, gave an explanation of how they had been caused (see paragraphs 22 and 43 above). The Court considers that the domestic authorities thoroughly investigated that issue. Nor is the Court persuaded that a forensic simulation of the incident was required to make the investigation effective. It accepts the Government's explanation, based on an expert's reasoned opinion, that such simulation would be inconclusive in the circumstances of the case (see paragraphs 35 and 77 above).
89. Further assessing the effectiveness of the investigation, the Court observes that the trial court refused to accept in evidence the expert opinions prepared at the pre-trial stage, finding that they were procedurally defective. The trial court was, however, able to commission additional expert opinions which confirmed the conclusions drawn by the pre-trial experts (see paragraph 45 above). The trial court examined the new expert opinions and relied on them in its judgment. The procedural defects were thereby remedied and the capability of the investigation to establish the circumstances of the case was not undermined (see, by contrast, Maslova and Nalbandov v. Russia, no. 839/02, §§ 94 and 95, ECHR 2008-... (extracts)).
90. During the trial the court took forensic and oral evidence. All eye-witnesses to the incident appeared before the court and gave testimony. The applicant, who was granted victim status, was present at the hearings and was able to examine and cross-examine the witnesses, including the police officers involved in the accident, and to make the submissions she wished to make in the course of the proceedings. It can be seen from the judgment that the trial court carefully reviewed the events surrounding the killing, attempted to reconcile the conflicting versions of the events and gave detailed reasons for its decision to acquit the police officer who had shot Mr Sh.
91. Finally, the Court notes that the Regional Court declared the applicant's appeal inadmissible, finding – apparently mistakenly – that she had no victim status. However, given that an appeal against the acquittal was at the same time lodged by the prosecutor's office, the appeal examination did in fact take place and the Regional Court had an opportunity to review the findings made by the trial court. While reiterating the importance of involving the next-of-kin of a deceased in the procedure (see Hugh Jordan v. the United Kingdom, no. 24746/94, §§ 109 and 133, ECHR 2001-III (extracts)) and regretting that the applicant was not allowed to participate in the appeal proceedings, the Court is not convinced, in the circumstances of the instant case and in particular in view of the applicant's close involvement in the pre-trial investigation and the trial, that that omission rendered the investigation ineffective.
92. In the light of the above, the Court is satisfied that the domestic authorities took reasonable steps to secure promptly the evidence concerning the incident, including eyewitness testimony and forensic evidence, and to establish the circumstances in which the incident had taken place. The investigation was independent, accessible to the family of the deceased and was conducted with sufficient expedition. The Court does not consider that the alleged various shortcomings in the investigation to which the applicant referred substantially hampered the carrying out of a thorough, impartial and careful examination of the circumstances surrounding the killing of the applicant's partner.
93. There has accordingly been no violation of the procedural obligation of Article 2 of the Convention.
(ii) Concerning the alleged responsibility of the State for the death of Mr Sh.
(α) Establishment and evaluation of the facts
94. The parties have disputed certain circumstances surrounding the killing of the applicant's partner by the police. The Court is therefore faced with the task of establishing the facts on which the parties disagree. It reiterates in this respect its jurisprudence confirming the standard of proof “beyond reasonable doubt” in its assessment of evidence (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001-VII (extracts)). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Taniş and Others v. Turkey, cited above, § 160).
95. The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Where domestic proceedings have taken place, it is not the Court's task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them. Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see, mutatis mutandis, Matko v. Slovenia, no. 43393/98, § 100, 2 November 2006). Where allegations are made under Articles 2 or 3 of the Convention, however, the Court must apply a particularly thorough scrutiny (see Imakayeva v. Russia, no. 7615/02, § 113, ECHR 2006-XIII (extracts)).
96. The Court has found that the domestic authorities conducted a thorough, independent and effective investigation capable of elucidating the circumstances in which the fatal incident had happened (see paragraph 92 above). It does not see any reason to depart from the factual findings made by the domestic courts in their judgments. Those findings were not arbitrary in the sense of being inconsistent, contradictory or irreconcilable with the evidence. They were based on forensic reports and witness statements examined in open court in the course of adversarial proceedings. The domestic courts had the benefit of listening at first hand to the witnesses, observing their demeanour and assessing the probative value of their testimony. The Court therefore takes the domestic courts' establishment of the facts summarised in paragraphs 47 and 48 above to be an accurate and reliable account of the circumstances underlying the present case.
97. As regards the evaluation of these facts from the standpoint of Article 2, the Court observes that the focus of concern of the criminal investigation proceedings was whether the killing of Mr Sh. by the police constituted a criminal offence under domestic law. The standard applied by the domestic courts was whether the use of lethal force was legitimate as opposed to whether it was “absolutely necessary” under Article 2 § 2 in the sense developed above (see paragraphs 78 to 80). Moreover, it must be borne in mind that the courts' finding was limited to a decision of lawful killing and did not involve the assessment of the planning and control of the police operation. Against this background, the Court must make its own assessment whether the facts of the case disclose a violation of Article 2 of the Convention.
98. The Court, in determining whether there has been a breach of Article 2 in the present case, is not assessing the criminal responsibility of those directly or indirectly concerned. Criminal-law liability is distinct from international-law responsibility under the Convention. The Court's competence is confined to the latter. Responsibility under the Convention is based on its own provisions which are to be interpreted and applied on the basis of the object and purpose of the Convention and in the light of the relevant principles of international law. The responsibility of a State under the Convention, arising for the acts of its organs, agents and servants, is not to be confused with the domestic legal issues of individual criminal responsibility under examination in the national criminal courts. The Court is not concerned with reaching any findings as to guilt or innocence in that sense (see Avşar, cited above, § 284, and McCann and Others, cited above, §§ 170-173).
(β) Assessment of the actual administration of force
99. Mr Sh. was suspected of having fired a gun at a group of teenagers. He subsequently locked himself in his flat and refused to open the door to the police officers who came to arrest him. Police officer Mr T. climbed up a fire extension ladder and attempted to enter Mr Sh.'s flat through the balcony. Mr Sh. blocked his access, however. In the course of the struggle that followed Mr T. fired his weapon at Mr Sh. and fatally wounded him. The Court must verify whether the use of lethal force was no more than “absolutely necessary” for the achievement of one or more of the purposes set out in Article 2 § 2.
100. Assessing the relative situations of Mr T. and Mr Sh. at the time of the shooting, the Court observes that Mr T. was standing on an extension fire ladder in an unstable position at third floor level. Suddenly he found himself confronted by Mr Sh., who emerged onto the balcony brandishing a gun-like object in an attempt to push him down. Mr Sh. ignored a warning shot and an order to lay aside his weapon and surrender. In defiance of the warning, he made a further attempt to pitch Mr T. down the ladder. It was at that moment that Mr T., evidently concerned for his own life, fired at him. Detached from the events in issue, the Court cannot 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 (see Giuliani and Gaggio v. Italy, no. 23458/02, § 224, 25 August 2009, and Andronicou and Constantinou, cited above, § 192). It accepts that Mr T. honestly believed that, in order to prevent a real and immediate risk to his life, it was absolutely necessary to use a firearm against Mr Sh.
101. The Court notes that Mr T. complied with the domestic rules intended to minimise the danger from use of firearms by police officers. In particular, he fired a warning shot in the air before turning his gun on Mr Sh. It is also obvious that he did not shoot to kill. Indeed, it transpires from the ballistic expert opinion that Mr Sh. was accidentally hit by a ricochet bullet which tragically proved to be fatal (see paragraph 35 above).
102. Further, the Court does not lose sight of the fact that no gun was found in Mr Sh.'s flat during the search that followed his killing, which showed that Mr Sh. had not been armed. This fact cannot, however, alter its assessment of the necessity of the use of force. The Court is persuaded that at the time when the police officers proceeded to arrest Mr Sh. they honestly believed, in the light of the information they had received from the teenagers and their own observation of Mr Sh.'s demeanour, that he was armed with a gun and was being aggressive. It reiterates in this regard that the use of force by agents of the State in pursuit of one of the aims delineated in paragraph 2 of Article 2 of the Convention may be justified under this provision where it is based on an honest belief which is perceived, for good reasons, to be valid at the time even if it subsequently turns out to be mistaken. To hold otherwise would be to impose an unrealistic burden on the State and its law-enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and the lives of others (see McCann and Others, cited above, § 200, and Brady v. the United Kingdom (dec.), no. 55151/00, 3 April 2001).
103. The Court, however, has doubts as to whether in the circumstances of the present case the use of the firearm was “absolutely necessary” to achieve the purposes set out in Article 2 § 2 (a) and (b). Although it accepts that police officer Mr T. genuinely believed in the necessity of using the lethal force, this factor alone is insufficient to satisfy the strict and compelling test of necessity imposed by Article 2. The Court must analyse all the circumstances surrounding the killing of Mr Sh. In this respect the additional question arises whether the police operation as a whole was controlled and organised in a manner which complied with the requirements of Article 2.
(γ) Assessment of the planning and control of the operation
104. In carrying out its assessment of the planning and control phase of the police operation from the standpoint of Article 2 of the Convention, the Court must have particular regard to the context in which the incident occurred as well as to the way in which the situation developed. Its sole concern must be to evaluate whether in the circumstances the planning and control of the arrest operation showed that the authorities had taken appropriate care to ensure that any risk to Mr Sh.'s life had been minimised and that they were not negligent in their choice of action (see Andronicou and Constantinou, cited above, §§ 181-82). Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the obligation under Article 2 must be interpreted in a way which does not impose an impossible burden on the authorities (see Makaratzis, cited above, § 69, ECHR 2004-XI).
105. In assessing the police operation, the Court has been hampered by the absence of any contemporaneous documents recording its conduct. This is apparently due to the failure of the officers on duty to keep records of the incident (see paragraph 18 above). Nevertheless, the Court will assess the organisation of the operation on the basis of the material available to it.
106. The Court observes at the outset that the police were faced with an unpredictable situation and an urgent task of arresting an armed man who was suspected of having just fired a gun at a group of people. The police officers summoned to the scene had to respond to the incident immediately and without prior preparation. The situation materially changed, however, after Mr Sh. locked himself in his flat. The circumstances no longer required the taking of immediate or spontaneous decisions. Indeed, Mr Sh. remained quietly in his flat for several hours. There was no risk of his escaping as his door was guarded by the police. Nor was it ever claimed that there was a danger that he might start shooting through the window at the crowd gathered in front of his block of flats. Had such a danger arisen, it could have been prevented by cordoning off the area and ordering the crowd to disperse in accordance with section 11(20) and section 11(22) of the Police Act (see paragraph 57 above). The Court is satisfied that there was no call for precipitate action and that the police had plenty of time to prepare the arrest operation carefully.
107. In the case of Huohvanainen v. Finland an arrest operation conducted against a similar factual background was found to be compatible with the requirements of Article 2. In that case the applicant's brother was reported to have threatened a taxi driver with a gun. He subsequently locked himself in his house and refused to let the police in. When analysing the planning and control of the arrest operation, the Court took into account that the police had at all times been unwilling to take precipitate action. They had cordoned off the area around the house to prevent the applicant's brother from escaping and to avert any threat to the lives of the neighbouring population. The siege of the house had lasted two days and the Court was satisfied that the domestic authorities had continuously tried to defuse the situation without recourse to lethal force or to tactics which might provoke a violent response from the applicant's brother. They had incessantly attempted to break the deadlock by persuasion and dialogue and employed a trained negotiator and a psychologist to convince the applicant's brother to surrender. Most importantly, all actions undertaken by the police had been carefully considered and approved in advance by experienced senior officers and there was at all times a chain of command (see Huohvanainen, cited above, §§ 99-108; and, for similar reasoning, Bubbins, cited above, §§ 141-51).
108. In the present case, by contrast, the police officers on duty did not inform their superiors about the ongoing arrest operation (see paragraph 18 above). The chain of command was thus broken. Without receiving any instructions from their superiors, the police officers at the scene were left in a vacuum when performing their duties and had to take unconsidered initiatives. Even the crucial decision to climb up onto Mr Sh.'s balcony, which, by provoking a violent response from Mr Sh., proved to be fatal for him, was not reviewed or approved by experienced senior officers. The Court concludes that the absence of a clear chain of command was a factor which by its very nature must have increased the risk of imprudent and erratic actions and, consequently, the risk to Mr Sh.'s life (see, mutatis mutandis, Makaratzis, cited above, § 68)
109. The Court further notes that by taking the hasty decision to enter Mr Sh.'s flat through the balcony the police officers did not give proper consideration to alternative solutions. Indeed, the suggestion to force the door open was rejected for the sole reason that the police officers at the scene did not have the requisite equipment (see paragraph 17 above). The Court is struck by the fact that the possibility to send for such equipment was not considered by the police officers. Nor did they consider deploying a quick reaction team trained and equipped to deal with emergencies, or inviting a trained negotiator who might have been more successful than inexperienced police officers in bringing the matter to a peaceful close.
110. Although the Court must be cautious about revisiting the events with the wisdom of hindsight (see Bubbins, cited above, § 147), it cannot but conclude that the arrest operation in the present case was conducted in an uncontrolled and unconsidered manner and that the measures taken by the police lacked the degree of caution to be expected from law-enforcement personnel in a democratic society, even when dealing with dangerous armed suspects, and stood in marked contrast to the standard of care reflected in the instructions governing the organisation of the police operations which had been drawn to their attention (see, in particular, paragraph 70 above).
111. It follows from the above that the arrest operation was not organised so as to minimise to the greatest extent possible recourse to lethal force and any risk to the life of Mr Sh. There has accordingly been a violation of Article 2 under its substantive limb.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
112. The applicant complained of the unfairness of the criminal proceedings against the police officer. She relied on Article 6 of the Convention which, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
113. The Court observes that the applicant does not complain about the refusal to hear her civil claim in the context of the criminal proceedings. The crux of her complaint is the allegedly unjust decision to acquit the police officer who had killed her partner. It notes in this respect that the right to bring criminal proceedings against a third person is not guaranteed, as such, by the Convention (see Posokhov v. Russia (dec.), no. 63486/00, 9 July 2002).
114. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
115. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
116. The applicant claimed 248,809 Russian roubles (RUR), that is, approximately 6,900 euros (EUR), in respect of pecuniary damage. In particular, she claimed reimbursement of funeral expenses and of damage allegedly caused to her flat during the police search, adjusted for inflation. She further claimed RUR 9,000,000 (approximately EUR 250,000) in respect of non-pecuniary damage.
117. The Government submitted that the finding of a violation would constitute sufficient just satisfaction. They further argued that the claims in respect of pecuniary damage were insufficiently substantiated. In their opinion, the invoices submitted by the applicant should have been supported by payment receipts.
118. The Court reiterates that under its case-law a sum paid as reparation for pecuniary damage is only recoverable if a causal link between the violation of the Convention and the damage sustained is established. Thus, in the present case, the funeral expenses may be taken into account (see Öneryıldız v. Turkey [GC], no. 48939/99, § 167, ECHR 2004-XII). On the basis of the documents in its possession, the Court awards EUR 1,200 to the applicant in respect of pecuniary damage, plus any tax that may be chargeable.
119. The Court does not discern a causal link between the violation found and the remainder of the claim for pecuniary damage.
120. As regards non-pecuniary damage, the Court accepts that the applicant suffered distress and frustration which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 35,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on the above amount.
B. Costs and expenses
121. The applicant also claimed RUR 518.09 (approximately EUR 15) for postal expenses.
122. The Court notes that the applicant submitted receipts showing the amount of postal expenses. On the basis of the documents in its possession, the Court awards the applicant EUR 15 under this head, plus any tax that may be chargeable.
C. Default interest
123. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint concerning the killing of the applicant's partner admissible and the remainder of the application inadmissible;
2. Holds that there has been no violation of Article 2 of the Convention under its procedural limb;
3. Holds that there has been a violation of Article 2 of the Convention under its substantive limb;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement:
(i) EUR 1,200 (one thousand two hundred euros) in respect of pecuniary damage;
(ii) EUR 35,000 (thirty-five thousand euros) in respect of non-pecuniary damage;
(iii) EUR 15 (fifteen euros) in respect of costs and expenses;
(iv) any tax that may be chargeable to the applicant on the above amounts;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 17 December 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos
GOLUBEVA v. RUSSIA JUDGMENT
GOLUBEVA v. RUSSIA JUDGMENT