The European Commission of Human Rights sitting in private on
6 October 1986 the following members being present:

                    MM. C.A. NØRGAARD, President
                        G. SPERDUTI
                        J.A. FROWEIN
                        G. TENEKIDES
                        S. TRECHSEL
                        B. KIERNAN
                        A.S. GÖZÜBÜYÜK
                        A. WEITZEL
                        J.C. SOYER
                        H.G. SCHERMERS
                        H. DANELIUS
                        G. BATLINER
                        J. CAMPINOS
                    Mrs G.H. THUNE
                    Sir Basil HALL
                    Mr. F. MARTINEZ

                    Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 (Art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 13 September 1984 by
W. and M.W. against the Federal Republic of Germany and
registered on 17 September 1984 under file No. 11257/84;

Having regard to the report provided for in Rule 40 of the Rules of
Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they have been submitted by the applicants
may be summarised as follows:

The applicants, a married couple, are German citizens resident in
Diez/the Federal Republic of Germany.  The first applicant, born in
1925, is a pensioner.  The second applicant, born in 1938, is a
housewife.  Before the Commission, the applicants are represented by
Mr. Sieg, a lawyer practising in Frankfurt.

On 20 October 1981, the Munich Police arrested the applicants' son,
born in 1960, together with four other members of a group on their way
to an armed bank robbery.  In the course of the arrest, at least one
member of the group did not comply with the police's instruction to
raise his hands.  Then, according to the applicants, an accomplice
detonated a hand grenade.  In reaction thereto the police opened fire
and injured the applicants' son and another member of the group so
seriously that one hour later they died in hospital.

It appears from the statement of facts in the decision of the Munich
Public Prosecutor's Office (Staatsanwaltschaft) dated
26 September 1983, which is in this respect not disputed by the
applicants, that the Munich Police had decided to effect the arrest of
the group members on their way to the robbery according to secret
information. This information concerned the specific circumstances of
the intended bank robbery, the types of arms, as well as the strict
intention to use them.  Other plans of arrest had been rejected as
being too dangerous for third persons.  An ambulance was called
immediately after the incident and arrived ten minutes later.  In and
beside the car the police found three sub-machine guns, one sawn off
shotgun, one revolver, seven hand grenades and a substantial amount of
amunition.

On 7 January 1982, the applicants requested the Munich Public
Prosecutor's Office to institute criminal proceedings against the
responsible policemen.

On 26 September 1983, the Munich Public Prosecution Office decided to
close the investigation.  It found that the use of arms by the police
had been justified after the detonation of the hand grenade in order
to effect the arrest and to defend the policemen.

The applicants' appeal against this decision was dismissed as
unfounded by the Director of Public Prosecutions (Generalstaatsanwalt)
on 22 December 1983.

On 2 February 1984, the Munich Court of Appeal (Oberlandesgericht)
dismissed the applicants' request that the Court should order the
institution of investigation procedures.  The Court held that the
applicants had only raised questions of law and had not sufficiently
substantiated the allegations.

On 26 March 1984, the Federal Constitutional Court
(Bundesverfassungsgericht) dismissed the applicants' constitutional
complaint as offering no prospect of success.  The Court held that
there was no evidence that the previous instances had acted partially
or improperly in closing the investigations or that the proceedings
had been unfair.

COMPLAINTS

1.      The applicants complain under Article 2 (Art. 2) of the
Convention that while their son was being arrested he was killed by a
policeman.  On the one hand they allege that the shooting of their son
was not absolutely necessary to effect the arrest or defend the
policemen.  On the other hand they allege negligence on behalf of the
Munich Police in the course of organising the arrest.  For instance,
no ambulance and adequate means of medical treatment had been ordered
to be immediately ready for operation.

2.      The applicants furthermore complain under Article 6 para. 1
(Art. 6-1) of the Convention of the alleged unfairness of the
proceedings by which they had attempted to institute criminal
proceedings against the policemen involved in the incident.

THE LAW

1.      The applicants complain under Article 2 (Art. 2) of the
Convention that the shooting of their son was not absolutely necessary
to effect the arrest or to defend the policemen.  Moreover, they
allege that the arrest had been negligently organised.

The Commission recalls at the outset that the applicants, as the
parents who were affected by the death of their son, may claim to be
victims, in the sense of Article 25 (Art. 25) of the Convention.
The Commission here refers to its decisions on the admissibility of
Application No. 2758/66 (Dec. 21.5.69, Collection 30 p. 11) and
Application No. 9348/81 (Dec. 28.2.83, D.R. 32 p. 190).

The Commission next notes that the applicants did not institute
proceedings for damages according to S. 844 and 839 of the German
Civil Code (Bürgerliches Gesetzbuch) in conjunction with S. 34 of the
Basic Law (Grundgesetz).  These provisions provide for compensation to
present or future dependants in cases of unlawful deprivation of life.
Rather, the applicants only availed themselves of the legal means to
have criminal proceedings instituted against the policemen involved in
the incident.  An issue arises therefore as to whether the applicants
have exhausted domestic remedies within the meaning of Article 26
(Art. 26) of the Convention.  However, the Commission does not regard
it as necessary to determine this question as the above complaint
under Article 2 (Art. 2) is in any case manifestly ill-founded for the
following reasons.

Insofar as the applicants complain that the shooting of their son was
not absolutely necessary within the meaning of Article 2 para. 2 (a)
and (b) (Art. 2-2-a, art. 2-2-b) of the Convention the Commission
observes that, in assessing whether the use of force is strictly
proportionate, regard must be had to the nature of the aim pursued,
the dangers to life and limb inherent in the situation and the degree
of the risk that the force employed might result in loss of life.  The
Commission's examination must have due regard to all the relevant
circumstances surrounding the deprivation of life (see e.g.
No. 10044/82, Dec. 10.7.84, to be published in "Decisions and
Reports").

In the present case, the Commission notes that the police had serious
and detailed information about the group's plan to commit an armed
bank robbery and that the group had the strict intention to make use
of their arms.  In the course of the arrest, at least one member of
the group did not comply with the police's instruction to raise his
hands.  The police shot at the group only after one of its members had
detonated a hand grenade while the arrest was being effected.  The
subsequent search of the car and of the arrested persons themselves
indeed proved that they were equipped with numerous dangerous weapons.

The Commission considers, therefore, that the police acted in order to
effect the lawful arrest of the members of the group as well as to
defend themselves against unlawful violence.  In assessing the further
question as to whether or not the force used in pursuit of these
respective aims under Article 2 para. 2 (a) and (b) (Art. 2-2-a,
art. 2-2-b) was absolutely necessary within the meaning of that
provision the Commission has had special regard to the situation
confronting the police officers.  The Commission recalls that the
group had grave criminal aims and was extensively equipped with
dangerous weapons and that these two facts had come to the attention
of the Munich Police before the incident.

In view thereof the Commission finds that the deprivation of the life
of the applicants' son resulted from the use of force which was no
more than absolutely necessary both in respect of the self-defence of
the respective policemen and the necessity to effect a lawful arrest
within the meaning of Article 2 para. 2 (a) and (b) (Art. 2-2-a,
art. 2-2-b) of the Convention.

Insofar as the applicants complain about the organisation of the
arrest the Commission notes that the police specifically planned the
arrest in such a way as to avoid risks of personal harm to third
persons.  The ambulance, alarmed in advance, arrived soon after the
incident at issue.

The Commission, therefore, concludes that in respect of the above
complaint there is no appearance of a violation of Article 2 (Art. 2)
of the Convention.  It follows that this part of the application must
be rejected in accordance with Article 27 para. 2 (Art. 27-2) of the
Convention as being manifestly ill-founded.

2.      The applicants furthermore allege that the proceedings to
enforce preliminary investigations and criminal proceedings against
the policemen involved in the incident have not been fair within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

Article 6 para. 1 (Art. 6-1) provides for everyone certain procedural
guarantees "in the determination of his civil rights and obligations
or of any criminal charge against him".

The Commission first observes that the applicants were not charged
with a criminal offence but, on the contrary, were attempting to
introduce criminal proceedings against third persons.  Moreover, the
proceedings concerning this request to institute criminal proceedings
did not relate to any civil rights or obligations of the applicants.
It follows that these proceedings fall outside the scope of Article 6
para. 1 (Art. 6-1).

This part of the application must therefore be rejected as being
incompatible ratione materiae with the provisions of the Convention
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission               President of the Commission

       (H.C. KRÜGER)                              (C.A. NØRGAARD)