AS TO THE ADMISSIBILITY OF
Application no. 22102/09
by Mika HEIKKINEN
The European Court of Human Rights (Fourth Section), sitting on 22 March 2011 as a Chamber composed of:
Sverre Erik Jebens,
Vincent A. de Gaetano, judges
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 27 April 2009,
Having deliberated, decides as follows:
The applicant, Mr Mika Antero Heikkinen, is a Finnish national who was born in 1972 and lives in Helsinki. He was represented before the Court by Mr Heikki Salo, a lawyer practising in Helsinki.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 17 December 2005, in the middle of the night, the applicant and his friend stole a car and used it in a burglary. During their escape from the crime scene at high speed the applicant, who was under the influence of alcohol and drugs, shunted the car of the security guard who was trying to stop them. Some time later the police arrived with two vehicles and tried to stop the applicant by shunting his car off the road, one vehicle hitting the car sideways and one at the rear. The applicant tried to escape by driving at the police cars from the front and behind. When the applicant’s car became stuck in bushes, police officer J.H. stepped out of his car, which was in front of the applicant’s car, and started to approach him on foot, moving towards the front of the car. When he was some three metres from the applicant’s car, the applicant managed to free his car from the bushes and drove suddenly towards J.H. J.H. quickly side-stepped in order not to be run over and fired a total of six shots at the car in an attempt to stop the applicant. Three of the shots hit the upper edge of the front wheel on the driver’s side, and the last three shots were fired at the side of the vehicle as it passed. One of these shots hit the applicant in the back of the shoulder, making him lose control of the car. The car hit first the police car, then a nearby building. Initially, the applicant suffered from varying degrees of muscular weakness on his left side but he quickly regained mobility and later made a full recovery. His most recent medical check-up was in August 2006.
During the investigation of the shooting, a reconstruction of the events was organised, based on sound recordings. In the context of the investigation, all the persons involved in the incident as well as some tactical and operational experts were questioned.
On 22 March 2006 the public prosecutor pressed charges against the applicant on several counts. He also pressed charges against J.H. for breach of official duty and aggravated bodily harm. He found that the use of the firearm by J.H. had not been justified in the circumstances of the case. The applicant could have been stopped by less drastic means.
On 5 June 2006 the Helsinki District Court (käräjäoikeus, tingsrätten) found J.H. guilty of negligent breach of official duty and of causing bodily harm. He was sentenced to 40 day-fines, totalling EUR 1,160. The applicant was convicted of violent resistance to a civil servant and a person upholding order, stealing a vehicle, driving under the influence of alcohol and without a valid licence, theft and aggravated endangering of road safety. He was sentenced to imprisonment of one year and one month and ordered to pay substantial to several parties.
The court noted that J.H. had been in a situation which he could have perceived as dangerous for himself and for others and that he had only had approximately one second in which to react. He had known that the applicant had earlier driven at 180 km/h and he had seen the applicant shunt the police vehicles violently with his car when trying to escape. J.H.’s intention, after the applicant’s car had become stuck in the bushes, had been to force the applicant out of the car but as the events developed very suddenly, he had acted instinctively and in self-defence. The court found that as J.H. had perceived the situation as being one of self-defence, the use of firearms had been justified. However, as the applicant had been injured, J.H. was convicted of negligent breach of official duty and of causing bodily harm.
On 19 December 2007 the Helsinki Court of Appeal (hovioikeus, hovrätten), after having held an oral hearing, acquitted J.H. of all charges. The court found that even though, according to the internal rules, the stopping of a vehicle should be carried out by methods other than by using firearms, that rule did not cover situations qualifying as self-defence. Although in theory the policemen may have had other less drastic means available to them to stop the applicant’s vehicle, in the circumstances of the case, in practice, they could only have had recourse to firearms. The situation arose so suddenly that J.H. had to rely on his instincts and could not negotiate with the other policemen. The use of a firearm was thus justified, considering the dangerousness and urgency of the situation.
On 27 October 2008 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicant leave to appeal.
B. Relevant domestic law
Chapter 4, section 4, of the Penal Code (rikoslaki, strafflagen, Act no. 515/2003) provides about self-defence the following:
“An act that is necessary to defend against an ongoing or imminent unlawful attack is lawful as self-defence, unless the act manifestly exceeds what in an overall assessment is to be deemed justifiable, taking into account the nature and strength of the attack, the identity of the defender and the attacker and the other circumstances.
However, if the defence exceeds the limits of self-defence (excessive self-defence), the perpetrator is exempt from criminal liability if the circumstances were such that the perpetrator could not reasonably have been expected to have acted otherwise, taking into account the dangerousness and sudden nature of the attack and the situation also otherwise.”
Chapter 4, section 6, of the same Code provides the following:
“Separate provisions in an Act apply to the right to use forcible measures in the performance of official functions or for another comparable reason and to the right to assist persons appointed to maintain order.
In the use of forcible measures, recourse may be had only to such measures necessary to perform the function and that can be deemed justifiable when assessed as a whole, taking into account the importance and urgent nature of the task, the dangerousness of the resistance and the situation also otherwise.
If the limits provided in subsection 2 have been exceeded in the use of forcible measures, the perpetrator is nonetheless free of criminal liability if there are very weighty grounds to deem that the perpetrator could not reasonably have been expected to have acted otherwise, taking into account his or her position and training, the importance of the function and the unexpected nature of the situation.”
The applicant complained under the substantive limb of Articles 2 and 3 of the Convention that the use of force by the police had not been absolutely necessary as he had not been armed or dangerous nor had he tried to run over the police officer or harm him in any other way.
A. Complaint under Article 2 of the Convention
The applicant complained about the excessive use of force by the police under the substantive limb 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.”
The Court observes at the outset that Article 2 imposes both negative and positive obligations on the State. The negative obligation prohibits the intentional and unlawful taking of life by agents of the State. The positive obligation incumbent on States under Article 2 requires that they take appropriate steps to safeguard the lives of those within their jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports 1998-III; and Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 54, ECHR 2002-II).
As the text of Article 2 § 2 itself shows, the use of lethal force by police officers may be justified in certain circumstances. However, any use of force must be no more than “absolutely necessary”, that is to say be strictly proportionate in the circumstances (see McCann and Others v. the United Kingdom, 27 September 1995, § 150, Series A no. 324; Makaratzis v. Greece [GC], no. 50385/99, §§ 57-59, ECHR 2004-XI; and Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 94, ECHR 2005-VII).
Furthermore, the Court has consistently held that, in principle, there can be no such necessity where it is known that the person to be arrested poses no threat to life or limb and is not suspected of having committed a violent offence, even if failure to use lethal force may result in the loss of an opportunity to arrest the fugitive (see the Court’s approach in McCann and Others, cited above, §§ 146-50, and §§ 192-214, and in Makaratzis, cited above, §§ 64-66, and Nachova and Others, cited above, § 95, where the Court condemned the excessive use of force to arrest victims, resulting in their death).
The Court reiterates, however, that it is only in exceptional circumstances that physical ill-treatment by State officials which does not result in death may disclose a breach of Article 2 of the Convention. It is true that the criminal responsibility of those concerned in the use of force is not in issue in the proceedings under the Convention (see the McCann and Others judgment, cited above, § 173). Nonetheless, the degree and type of force used and the unequivocal intention or aim behind the use of force may, among other factors, be relevant in assessing whether in a particular case the State agents’ actions in inflicting injury short of death must be regarded as incompatible with the object and purpose of Article 2 of the Convention. In almost all cases where a person is assaulted or ill-treated by the police or soldiers, their complaints will fall to be examined rather under Article 3 of the Convention (see İlhan v. Turkey [GC], no. 22277/93, § 76, ECHR 2000-VII).
It is clear from the facts of the case that the incident did not result in the death of the applicant. Nor does there exist any such exceptional circumstance which would require the present case to be examined under Article 2 of the Convention. In these respects this case can be distinguished from the case Wasilewska and Kałucka v. Poland in which the Court found a violation of Article 2 of the Convention in similar circumstances (see and compare Wasilewska and Kałucka v. Poland, nos. 28975/04 and 33406/04, 23 February 2010).
Accordingly, the case does not engage the State’s negative obligations under Article 2 of the Convention. The applicant’s complaint under the substantive limb of Article 2 of the Convention is accordingly declared inadmissible as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
B. Complaint under Article 3 of the Convention
The applicant complained about the excessive use of force by the police also under the substantive limb of Article 3 of the Convention which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Tekin v. Turkey, 9 June 1998, § 52, Reports of Judgments and Decisions 1998-IV).
The Court notes that the parties to the domestic proceedings did not dispute the fact that the applicant had been injured in the course of the arrest or the fact that these injuries had been caused by the police officer J.H. The only question to be examined is thus whether or not the use of force was excessive and unjustified in the circumstances.
The Court notes that the applicant was arrested in the course of events which had been unexpected and to which the police were called upon to react without prior preparation. The police could not plan the arrest in advance nor had they sufficient time to evaluate the possible risks and to take all necessary measures for carrying out the arrest. As the behaviour of the applicant was aggressive and reckless and he represented a risk for other persons present at the scene, the police were under a positive obligation to secure the lives of third persons.
The Court notes that J.H. had been standing right in front of the applicant’s car when the latter had started to drive aggressively towards him. According to the District Court, J.H. had, in that situation, about one second to react and could have perceived the situation as being one of self-defence in which his and his colleagues’ lives were in danger. In such a self-defence situation, which the Court interprets as including also the defence of others, the use of firearms in order to stop the car and to prevent further damage had been justified. The Court of Appeal found in addition that although, in theory, the policemen may have had other less drastic means available to them to stop the applicant’s vehicle, in the circumstances of the present case, in practice, they could only have had recourse to firearms. The Court does not see any reason to judge otherwise.
The Court also stresses the fact that the applicant constantly threatened the police officers arresting him, for example, by violently shunting their cars while trying to escape (see and compare Rehbock v. Slovenia, no. 29462/95, § 72, ECHR 2000-XII). It is also of importance that J.H. was aware of the fact that the applicant had just escaped from the crime scene by driving at 180 km/h. Moreover, the applicant was under the influence of drugs and he took irrational risks when escaping.
The Court also notes that the facts of the dispute were immediately investigated and later to a determination by three levels of national jurisdiction, two of which held an oral hearing. The investigation was thorough and effective and it included a reconstruction of the scene of the events. The length of the criminal proceedings was in total less than three years.
Moreover, the medical certificates submitted to the Court show that, even though one of the shots hit the applicant in the back of his shoulder, he had quickly regained mobility and was already fully recovered in August 2006.
Against this background, the Court finds that the measures taken by J.H. did not attain the minimum level of severity in order to fall within the scope of Article 3 of the Convention. The applicant’s complaint under the substantive limb of Article 3 of the Convention is accordingly declared inadmissible as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Nicolas
HEIKKINEN v. FINLAND DECISION
HEIKKINEN v. FINLAND DECISION