[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF WASILEWSKA AND KAŁUCKA v. POLAND
(Applications
nos. 28975/04 and 33406/04)
JUDGMENT
STRASBOURG
23
February 2010
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 cases of Wasilewska and
Kałucka v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza, President,
Lech
Garlicki,
Giovanni
Bonello,
Ljiljana
Mijović,
Päivi
Hirvelä,
Ledi
Bianku,
Nebojša
Vučinić,
judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 2 February 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 28975/04 and 33406/04)
against the Republic of Poland lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two Polish nationals, Ms
Sylwia Wasilewska and Ms Barbara Kałucka (“the
applicants”), on 29 July 2004 and 23 August 2004 respectively.
- The
applicants were represented by Ms J. Agacka-Indecka, a lawyer
practising in Łódź. The Polish Government (“the
Government”) were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
- The
applicants complained under Article 2 of the Convention that Mr
Kałucki, the first applicant's boyfriend and the second
applicant's son, was unjustifiably killed by the police and that the
authorities failed to carry out an effective and thorough
investigation into the circumstances of his death.
- On
16 September 2008 the Court decided to give notice of the
applications to the Government. It also decided to join the cases
(Rule 42 § 1 of the Rules of Court) and to examine the
merits of the applications at the same time as their admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1980 and 1949 respectively and they live in
Łódź.
A. The events of 23 August 2002 as submitted by the
applicants
- On
23 August 2002 Mr Przemysław Kałucki, who at the material
time was 26 years old, arrived at the Spała Sports Centre
accompanied by two persons, G.B. and T.N. They parked their car,
a Volkswagen Passat, next to a fence surrounding the Centre.
- Suddenly,
a column of four vehicles, three minibuses and one saloon car,
arrived. Several armed men jumped out of the vehicles. It later
turned out that they were police officers from the Łόdź
and Tomaszów Mazowiecki Police Forces and from a special
anti-terrorist group.
- Some
of the officers wore plain clothes and others combat uniforms with
bulletproof vests and helmets. Not all the police officers were
wearing fluorescent vests and they bore no other visible signs that
would indicate that they were from the police. In particular one
police officer, later named witness no. 2, as was visible on the film
recorded by the camera of the private television station TVN, was not
wearing such a vest. The TVN television had been preparing a
documentary on the work of the police and had placed cameras in the
police cars. A short documentary “Criminal Games”
was prepared following the operation.
- Mr
Kałucki and the other two occupants of the car thought they were
about to be robbed and tried to escape in the direction of the
swimming pool which led to a dead end. G.B. took the driver's seat
and Mr Kałucki climbed into the back-seat behind him. The third
man, T.N., did not manage to get inside the car and tried to run
away.
- Mr
Kałucki and G.B. drove between the second and third police
vehicles while the police opened fire, shooting repeatedly at the
driver and the passenger. The orders of the commanding officer had
not been complied with as he had ordered that the police officers
from the last vehicle should arrest the suspects. Instead many other
officers had left their vehicles and attempted to stop the car by
firing automatic weapons.
- The
whole operation lasted fifteen seconds during which about 40 bullets
were fired at the car as it was driving off, according to an expert,
at no more than 20 k.p.h. In spite of the claims by the police
officers that they had been aiming at the tyres, none of the tyres
had been damaged.
- The
driver lost control of the vehicle and hit the fence. Mr Kałucki
was severely wounded and was removed from the car by one of the
police officers, who pulled him by the head. The first applicant
submitted that Mr Kałucki was of a heavy build, weighing about
120 kg, and at the time of the events was observed to have five
bullet wounds.
- No
arrangements had been made for an ambulance to be present. Although
the police officers testified that they had attempted to resuscitate
Mr Kałucki and stop the haemorrhage, the autopsy reports made no
mention of this. Mr Kałucki died before the arrival of an
ambulance twenty minutes after the shooting. The driver of the car,
G.B., was seriously wounded.
B. The proceedings against the police
1. The prosecutor's decision
- On
an unspecified date both applicants requested the Łόdź
District Prosecutor to initiate a criminal investigation into the
death of Mr Kałucki.
- The
prosecutor took testimony from all the police officers who had taken
part in the operation, as anonymous witnesses (świadek
incognito).
- On
18 August 2003 the Łόdź Regional Prosecutor
decided to discontinue the investigation. The prosecutor established
that the operation had been initiated upon information that two armed
criminal gangs would engage in a confrontation in the Spała
Sports Centre. According to the information obtained by the police
the gangs would be armed with semi-automatic Kalashnikov-type
weapons. Twenty-two police officers had arrived in four unmarked
cars, wearing balaclavas and bulletproof vests. The officers from the
Łόdź Police Force were in plain clothes but were
wearing fluorescent vests with the word “Police” marked
on them. The other group, from a special anti-terrorist force, were
wearing uniforms and dark-coloured vests marked “Police”.
- The
police operation had started when the commanding officer received
information that a suspicious group of people had gathered on the
grounds of the Sports Centre. After he had given the order to move,
the column of cars had approached the Volkswagen Passat that was
parked at right angles to the street. The commanding officer had
ordered the arrest of three men who were standing next to the Passat
and who turned out to be Mr Kałucki, G.B. and T.N. The
arrest was to be carried out by police officers from the last two
cars in the column. The police vehicles had moved one after the
other, blocking the street and the suspects' car. The suspects had
tried to escape and two of them had jumped into the car and driven
off fast, taking advantage of a gap that had been left between the
second and third police vehicles. By this time almost all the police
cars had stopped and the police officers had got out. They were armed
with guns and semi-automatic rifles. A police officer, who in the
proceedings was named anonymous witness no. 4, got out of the second
vehicle and found himself in the way of the Passat so he jumped aside
to avoid being hit by the rapidly moving car. He shouted “police”
and started shooting, aiming at the tyres of the suspects' car. He
fired eleven shots from his sub-machine gun (pistolet maszynowy
Glauberyt). Another police officer, witness no. 2, got out of the
first vehicle and found himself facing the escaping Passat. He was
wearing a fluorescent vest marked with the word “Police”,
and shouted “stop, police” but the driver failed to obey.
At the last moment, the witness had had to jump aside but had
nevertheless been hit by the car and sustained an injury to his leg.
He had not lost balance, and fired five shots from his gun (pistolet
marki Glock) at the tyres of the Passat. A policeman from the
anti-terrorist forces, witness no. 3, had stepped out of the second
car and had also attempted to stop the car by firing eleven shots
from his sub-machine gun (pistolet maszynowy MP-5). He aimed
at the engine, front tyres and, as the car was passing him, its side
and the rear tyres. The next police officer, witness no. 6, had
followed police officer no. 2 out of the first police vehicle.
As the suspects' car was passing him he noticed that the driver was
aiming at him with an object resembling a gun. The police officer
then fired a short burst from his machine gun (karabin
Kalashnikov) aiming at the lower side of the car and tyres. Finally,
another officer from the anti terrorist forces, witness no. 18,
had got out of the third vehicle. Noticing that the suspects' car had
passed one of the police vehicles and hit officer no. 2, he had run
after the escaping vehicle, shouted to the driver to stop and opened
fire with his machine gun (a Kalashnikov), aiming at the car's left
rear tyres. The other police officers had run after T.N., the
remaining suspect who had not managed to get into the car, and
overpowered him.
- The
suspects' car stopped on reaching the metal fence. Witness no. 18 had
gone to the car and ordered the driver to surrender. He had helped
him out of the car and attended to him as he was bleeding. Anonymous
witness no. 7 had opened the rear door of the car and removed Mr
Kałucki, pulling him by the head as he had not reacted to his
orders. He did not resist but was still alive. The police officer had
tried to staunch the bleeding from his back and called the commanding
officer, who brought over a medical ventilator and started to
resuscitate him until the arrival of the ambulance.
- The
prosecutor also established that Mr Kałucki's death had been
caused by a bullet wound to the torso. The bullet breached the
abdominal aorta causing a massive haemorrhage. It did not leave his
body and the experts were able to establish that it had been fired by
witness no. 18. In addition to the fatal wound, Mr Kałucki had
sustained a further five surface bullet wounds to his head, right
arm, lower torso, left torso and left thigh.
- Following
a search of the Passat two guns had been found, one on the floor
behind the driver's seat and the second in the pocket at the back of
the driver's seat.
- The
other suspect, G.B., had sustained two bullet wounds to the torso and
head, the latter caused by a shot fired by witness no. 2. As a
result, he had become severely disabled, suffering from paralysis on
one side of his face and deafness.
- The
prosecutor established that the driver of the Passat had failed to
obey the order to stop, accelerated towards witness no. 2, and had
therefore acted with the intention of killing him. The prosecutor
concluded that in those circumstances the police officers had had the
right to use their firearms in pursuing persons against whom there
was a reasonable suspicion that they had attempted to commit homicide
and were armed. According to the prosecutor, the investigation
materials showed that when using their weapons the police officers
had followed all the relevant rules and their sole intention had been
to stop escaping suspects. The prosecutor thus decided to discontinue
the investigation as no crime had been committed.
2. The appellate proceedings
- Both
applicants appealed against that decision. They submitted that G.B.
and Mr Kałucki had not been armed as the guns found in the car
had not been used and did not have their fingerprints on them. The
gun linked by the expert to Mr Kałucki by scent identification
had been hidden in the pocket of the car seat and thus could not have
been used by him. The applicants alleged that the prosecutor had
failed to deal with many inconsistencies in the testimonies of the
police officers. Moreover, it had not been explained why no blood
stains had been found in the car even though Mr Kałucki had died
of a haemorrhage and suffered many bullet wounds. The applicants also
blamed the police for not preparing the operation properly. They
pointed to the fact that in total twenty-three armed police officers
had participated in the operation during which forty shots had been
fired at the car (including one which had passed through a point
above the driver's door handle, five through the boot, eight through
the rear bumper, and four through the driver's seat and back seat).
The car's tyres remained undamaged despite the testimonies of the
police officers that they had all aimed at the tyres. The applicants
therefore submitted that the force used by the police officers
against two unarmed men had been disproportionate.
- On
25 February 2004 the Tomaszów Mazowiecki District Court (Sąd
Rejonowy) dismissed the applicants' appeals and upheld the
prosecutor's decision. It found that no offence had been committed
and the law, in particular section 17(1)(6) of the Police Act, had
been complied with. The court stated:
“When seeing the police, [G.B. and Mr Kałucki]
tried to escape. This attempt was met with a firm but proper response
from the police officers participating in the operation, in
particular anonymous witness no. 2, who stood in the path of the
oncoming car and attempted to stop it by shouting: 'Stop, police'.
One should recall at this point the very important circumstance that
this witness was wearing a fluorescent vest with the word 'Police'
marked on it, leaving no room for doubt about his function. The car
was heading straight for the intervening police officer who only
managed to avoid being hit by G.B. [who was driving the car] through
his training and expertise...
The court has established, after analysing the evidence,
that when firing the shots the police officers followed all the
procedures necessary in the situation and their intention was only to
stop the speeding car and to arrest the fugitives. They used their
guns in the direct pursuit of the suspects, who had made an attempt
on the life and health of the police officers...
The court does not agree with the submission made in the
appeal lodged by the [first applicant's] lawyer that Przemyslaw
Kałucki and [G.B.] had not used any firearms and that no shot
had been fired by them. The actions of the police officers were not
in response to shots being fired by the suspects. They attempted to
arrest persons in respect of whom there was a reasonable suspicion
that they were armed, without a relevant licence, and who had made a
direct and illegal attempt on the life and health of the police
officers....”
- That
decision was final as no appeal lay against it.
C. The criminal proceedings against some of the
suspects
- After
the events, G.B. and some other persons arrested in the Spała
Sports Centre were indicted on various charges.
- It
appears that in the course of these proceedings the police officers
who had participated in the operation again gave evidence in court.
The applicants submitted excerpts from the transcript of one of the
hearings held on an unspecified date when the court heard witness
no. 2. The witness repeated the version of events he had given
in the investigation against the police. Afterwards he was shown the
episodes from the film recorded by a TVN camera. He then testified as
follows:
“I saw on the film that a person, probably me,
jumped out of a car and did not have a yellow vest on, but from what
I can remember I must have put on this vest when drawing alongside
the second vehicle. It was caused by the fact, mentioned by me
before, that according to the first plan of the operation, the team
in the vehicle I was in was supposed to make arrests at the swimming
pool [located deeper inside the grounds of the Centre, where some
other suspects were arrested]. That's why I was taken by surprise
when the order of the commanding officer came and so did not have my
vest on when I got out of the car. I was not wearing a helmet either,
as I did not put it on and it remained in the car. At this moment I
do not remember if I got out of the car with the vest in my hand but
I believe so.”
- It
appears that in December 2003 the Piotrków Trybunalski
Regional Court convicted G.B. of assaulting a police officer and
sentenced him to six years' imprisonment.
- It
appears that subsequently in this set of proceedings, on 29 January
2005, an expert opinion was submitted to the court by a road accident
expert. The expert was unable to establish beyond reasonable doubt
the exact location of witness no. 2 and the Volkswagen Passat during
the events. He was also unable to give a conclusive opinion on
whether the driver of the Passat had had time to change direction in
order to avoid hitting witness no. 2, who had emerged suddenly
from his police car.
II. RELEVANT DOMESTIC LAW
- Article
16 of the Police Act of 6 April 1990 (Ustawa o Policji) reads,
in so far as relevant:
“1. If a lawful order given by a police
authority or police officer has not been complied with, a police
officer may apply the following coercive measures:
1) physical, technical and chemical means to
restrain or escort persons or to stop vehicles;
2) truncheons;
3) water cannons;
4) police dogs;
5) rubber bullets fired from firearms.
2. Police officers may apply only such
coercive measures as correspond to the exigencies of a given
situation and are necessary to ensure that their orders are obeyed.”
- Section
17 of the Police Act provides:
“1. If the coercive measures mentioned in section
16 (1) prove insufficient, or their use in the circumstances is not
possible, a police officer may use firearms exclusively:
1) in order to fend off a direct and illegal
attempt on the life, health or liberty of a police officer or other
person, or to prevent activities directly related to such an attempt,
2) against a person who fails to obey an
order to drop immediately a weapon or another dangerous instrument
whose use poses a threat to the life, health or liberty of a police
officer or other person,
...
6) in the direct pursuit of a person in
relation to whom the use of firearms was lawful under paragraphs 1-3
or 5, or who is reasonably suspected of committing a crime, an
attempted act of terrorism, abduction in order to obtain a ransom or
other demand, mugging, robbery, violent assault, intentional serious
bodily injury, rape, arson or other intentional threat to public
security, life and/or health,
...
2. In operations by organised units or
sub-units of the Police, firearms shall be used only on the direct
orders of the commanding officer.
3. Firearms shall be used so as to cause
minimum damage to the person targeted, and without any intention of
depriving that person of his or her life and without endangering the
life or health of others.
4. The Council of Ministers shall issue a
resolution defining the conditions and operational procedural
requirements for the use of firearms by the organised Police
detachments mentioned in paragraph 2.”
THE LAW
- The
Court notes that the account of the facts surrounding the death of Mr
Kałucki has been furnished by the applicants. They submitted to
the Court the documents pertaining to the investigation opened into
their allegations and some documents relating to the second set of
proceedings.
- The
Government, however, did not submit observations on the admissibility
and merits of the applicants' complaints. The Government also failed
to provide documents concerning the subsequent criminal proceedings
against some suspects and which were regarded by the Court as
important to the establishment of facts and assessment of the
thoroughness of the investigation. Moreover, they did not offer any
explanation for their failure to submit the information requested by
the Court.
- In
these circumstances, the Court will examine the admissibility and
merits of the applicants' complaints solely on the basis of their
submissions and the documents relating to the domestic proceedings
provided by them (see Fedotov v. Russia, no. 5140/02, §
61, 25 October 2005 and Kostadinov v. Bulgaria, no. 55712/00,
§ 50, 7 February 2008).
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The
applicants complained that Mr Kałucki had been killed in breach
of Article 2 of the Convention. They alleged that the police officers
had used machine and other guns from very close range on unarmed men
who were panicking because they thought they were being robbed. Thus
the police had used lethal force in circumstances where this was not
absolutely necessary and in an excessive manner. They also complained
that the police operation, which had been initiated on the basis of
an unconfirmed anonymous call, was not properly prepared and was
badly directed.
The
applicants further complained that the authorities had failed to
conduct an effective investigation into Mr Kałucki's death. For
example it had not been clarified why no traces of his blood had been
found in the car, in spite of the fact that he had died of massive
bleeding. The sequence of events had not been clarified by the
prosecutor and some of the evidence had not been properly secured. In
particular the CCTV and TVN recordings had been destroyed in unknown
circumstances.
- Article
2 of the Convention provides:
“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
Government did not submit any comments regarding the admissibility
and merits of the case.
A. Admissibility
- The
Court notes that the complaints are not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that they are not inadmissible on any other grounds. They must
therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
applicants' lawyer in general submitted that there had been a
violation of the Convention.
- As
mentioned above, the Government did not submit any comments on the
merits of the case.
2. The Court's assessment
(a) As regards Mr Kałucki's death
- Article
2, which safeguards the right to life, ranks as one of the most
fundamental provisions in the Convention and enshrines one of the
basic values of the democratic societies making up the Council of
Europe. The Court must subject allegations of a breach of this
provision to the most careful scrutiny. In cases concerning the use
of force by State agents, it must take into consideration not only
the actions of the agents of the State who actually administered the
force but also all the surrounding circumstances, including such
matters as the relevant legal or regulatory framework in place and
the planning and control of the actions under examination (see McCann
and Others v. the United Kingdom, 27 September 1995, §
150, Series A no. 324, and Makaratzis v. Greece [GC],
no. 50385/99, §§ 56-59, ECHR 2004-XI).
- The
text of Article 2, read as a whole, demonstrates that it covers not
only intentional killing but also situations where it is permitted to
“use force” which may result, as an unintended outcome,
in the deprivation of life. The deliberate or intended use of lethal
force is only one factor, however, to be taken into account in
assessing its necessity. 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) of the second
paragraph of Article 2. 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. In particular, the force used must be strictly
proportionate to the achievement of the permitted aims (see McCann
and Others, cited above, §§ 148-149).
In
that connection the Court reiterates 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 but which 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 those of others (see Makaratzis, cited above, § 66
and McCann and Others, cited above, § 200).
- 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 a failure to
use lethal force may result in the loss of an opportunity (see
Nachova and Others v. Bulgaria [GC], nos. 43577/98 and
43579/98, § 95, ECHR 2005 VII ).
- Accordingly,
and with reference to Article 2 § 2 (b) of the Convention, the
legitimate aim of effecting a lawful arrest can only justify putting
human life at risk in circumstances of absolute necessity (ibid.).
- In
addition to setting out the circumstances when deprivation of life
may be justified, Article 2 implies a primary duty on the State to
secure the right to life by putting in place an appropriate legal and
administrative framework defining the limited circumstances in which
law-enforcement officials may use force and firearms, in the light of
the relevant international standards (see Makaratzis, cited
above, §§ 57-59, and the relevant provisions of the United
Nations Basic Principles on the Use of Force and Firearms by Law
Enforcement Officials, set out in the Makaratzis judgment). In
line with the above-mentioned principle of strict proportionality
inherent in Article 2 (see McCann and Others, cited
above, § 149), the national legal framework regulating arrest
operations must make recourse to firearms dependent on a careful
assessment of the surrounding circumstances, and, in particular, on
an evaluation of the nature of the offence committed by the fugitive
and of the threat he or she posed. As the text of Article 2 itself
shows, the use of lethal force by police officers may be justified in
certain circumstances. Nonetheless, Article 2 does not grant a carte
blanche. Unregulated and arbitrary action by State agents is
incompatible with effective respect for human rights. This means
that, as well as being authorised under national law, policing
operations must be sufficiently regulated by it, within the framework
of a system of adequate and effective safeguards against
arbitrariness and abuse of force (see Makaratzis, cited
above, § 58 and Andreou v. Turkey, no.
45653/99, § 50, 27 October 2009).
- 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, § 136, ECHR
2005 II (extracts) § 79).
- Furthermore,
the national law regulating policing operations must secure a system
of adequate and effective safeguards against arbitrariness and abuse
of force and even against avoidable accident (see Makaratzis,
cited above, § 58). In particular, law-enforcement agents must
be trained to assess whether or not there is an absolute necessity to
use firearms, not only on the basis of the letter of the relevant
regulations, but also with due regard to the pre-eminence of respect
for human life as a fundamental value.
- Against
this background the Court must examine in the present case not only
whether the use of lethal force against Mr Kałucki was
legitimate but also whether the operation was regulated and planned
and organised in such a way as to minimise to the greatest extent
possible any risk to his life (see Makaratzis, cited above, §
60).
- Turning
to the facts of the present case the Court accepts that the police
officers intervened in order to arrest persons who were suspected of
belonging to a gang and being armed – among them Mr Kałucki.
Indeed firearms were found in Mr Kałucki's car although there is
no evidence that Mr Kałucki or any other suspects had intended
to use them (see paragraph 20 above). Moreover, the suspects
attempted to escape in a car and it was alleged that this created a
danger for the police officers of being hit by it.
The
police officers opened fire allegedly with the purpose of stopping
the escaping suspects, who, according to the authorities, had made an
attempt on the life or health of a police officer.
- Consequently,
the Court observes that the police considered that there was a need
to resort to the use of their weapons in order to neutralise the
threat posed by its driver to the police officers and stop the car,
so that they could arrest the suspects (see Makaratzis, cited
above, § 66).
- The
Court must therefore examine whether the considerations which led the
police to open fire were compatible with Article 2 of the Convention
and whether the level of force used was absolutely necessary.
- The
Court accepts that the use of weapons could be regarded as absolutely
necessary and justified under paragraph 2 of Article 2 of the
Convention as long as those participating in the police operation
could be considered as having honestly believed that a police officer
had been exposed to a clear and immediate danger. In the
circumstances of the instant case it could be argued that such danger
existed, and the use of firearms could be regarded as absolutely
necessary, before the suspects' car had passed the police officer.
- However,
in the present case the majority of the shots were fired at the
escaping vehicle, once it had passed the police officer who had been
allegedly hit by it. At that moment there had been no direct danger
to the police officer and the only intention of the police officers
had been to prevent the escape of the suspects.
The
following elements illustrate the manner in which lethal force was
used in the instant case:
(i) Within
a very short period, five police officers fired between five and
eleven shots each, or a series of shots from automatic guns, aiming
at the car in which the two men were trying to escape. At that time
it cannot be said that the suspects still posed a threat to the
police officer, witness no. 2. The car was moving, according to an
expert, no faster than 20 k.p.h towards a swimming pool from which
there was no way out.
(ii) The
police officers were shooting mostly at the side of the car or from
the rear towards the front of the vehicle. In particular the
anonymous witness no.18 who had fired the lethal shot at Mr Kałucki
had run after the escaping vehicle and opened fire at the rear of it
with his Kalashnikov gun (see paragraph 17 above).
(iii) The
police officers were allegedly aiming at the tyres; however, in the
domestic investigation it was discovered that the tyres remained
untouched. Mr Kałucki, on the other hand, in addition to the
fatal wound, sustained about five other superficial wounds to his
torso or head. The rear bumper, the boot also located at the rear of
the car, the door at the height of the handle and the driver's and
back seats had been severely damaged by bullets (see paragraph 23
above).
- Serious
issues also arise as to the conduct and organisation of the
operation. Firstly it should be noted that Mr Kałucki was not
killed in the course of an unplanned operation which gave rise to
developments to which the police were called upon to react (compare
and contrast Makaratzis, cited above, § 69). It was a
planned operation in which significant police forces were deployed,
although they acted upon anonymous and rather vague information that
two criminal gangs would be confronting each other. In particular, it
appears that the police did not know how many suspects would be
involved or whether they would actually be armed.
- The
Court further notes that the subsequent proceedings against the
suspects cast doubts on whether the intervening officers were clearly
identifiable as being from the police (in particular whether witness
no. 2 whom the suspects allegedly tried to kill with their car
had been wearing a fluorescent jacket, see paragraph 27 above). It
also appears that the order of the commanding officer to carry out
the arrest of Mr Kałucki by the officers from the last car was
changed and police officers leapt out of all the cars and tried to
stop the car by shooting at it. Moreover, in planning an operation
involving a large number of officers and an unknown number of
suspects, the police failed to arrange for an ambulance to be
present. In consequence the victims waited about 20 minutes for its
arrival.
- Finally,
the Court observes that the Government have failed to submit any
comments regarding the proportionality of the level of force used by
the police, the organisation of the police action and whether an
adequate legislative and administrative framework had been put in
place to safeguard citizens against arbitrariness and abuse of force.
In
particular, the Government have not sought to argue that the use of
force was no more than absolutely necessary for one or more of the
legitimate purposes set out in paragraph 2 of Article 2 of the
Convention. The Court reiterates that this should have been a point
for the Government to advance, and failure to do so could result in
the Court's finding a violation of Article 2 under its substantive
limb without examining whether the killing of Mr Kałucki was
justified under Article 2 § 2 of the Convention (see Akkum
and Others v. Turkey, no. 21894/93, § 239, ECHR 2005 II
(extracts)).
- Having
regard to the circumstances as analysed above the Court considers
that the manner in which the police responded and the degree of force
used cannot be considered to have been strictly proportionate to the
aim of preventing Mr Kałucki's escape and arresting him or
averting the perceived threat posed by him. Moreover, the operation
was not planned so as to reduce to a minimum recourse to lethal
force.
- In
such circumstances the Court finds that there has been a violation of
Article 2 of the Convention, under its substantive head, in respect
of Mr Kałucki's death.
(b) As regards the investigation into Mr
Kałucki's death
- 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 of the Convention to “secure to everyone within
[its] jurisdiction the rights and freedoms defined in [the]
Convention”, also 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 (see Kaya v. Turkey,
judgment of 19 February 1998, Reports 1998-I, p. 324, § 86).
The essential purpose of such investigation is to secure the
effective implementation of the domestic laws which protect the right
to life and, in those cases involving State agents or bodies, to
ensure their accountability for deaths occurring under their
responsibility. This investigation should be independent, accessible
to the victim's family, carried out with reasonable promptness and
expedition, effective in the sense that it is capable of leading to a
determination of whether the force used in such cases was or was not
justified in the circumstances or otherwise unlawful, and afford a
sufficient element of public scrutiny of the investigation or its
results (see Hugh Jordan v. the United Kingdom, no. 24746/94,
§§ 105-109, 4 May 2001 and Bubbins, cited
above, § 137).
- The
Court must assess whether that investigation met the requirements of
Article 2 of the Convention. In this respect the Court notes that its
knowledge of the proceedings at issue is limited to the materials
from the investigation file submitted by the applicants. The
Government failed to submit materials concerning the subsequent
criminal proceedings which had been considered by the Court to be
crucial to the establishment of the facts and to an assessment of the
thoroughness of the investigation (see paragraphs 32-37 above). The
Court will assess the merits of the complaint on the basis of the
available documents (see paragraph 34 above).
- In
the instant case, following the incident in the Spała Sports
Centre, the prosecutor opened an investigation. However, the
investigation was discontinued by the prosecutor whose findings were
upheld by the District Court on 24 February 2004. The prosecutor had
established that the sole intention of the police officers had been
to stop the escaping suspects, who had attempted to kill a police
officer by hitting him with their car. The domestic court established
that the police officers had been persuaded that Mr Kałucki and
his associates belonged to a gang and were armed. Thus, when they
attempted to escape in a car, hitting one police officer, the police
officers had rightly opened fire with the aim of stopping them. These
arguments were sufficient for the authorities to discontinue the
investigation.
- However,
the Court does not consider such an approach to be satisfactory and
finds that the authorities failed to apply the standards embodied in
Article 2 of the Convention (see paragraph 59 above). The Court
reiterates that when, as in the case under consideration, the police
decide to resort to potentially lethal force, the level of such force
cannot be more then absolutely necessary for achieving its purpose.
The national authorities, however, failed to address this question.
There was no examination of whether a lesser degree of force would
have been sufficient to stop the escaping vehicle, taking into
account the fact that most of the shots were fired when there was no
longer a threat to the life or limb of the police officer, as
alleged. In a situation where five police officers used sub-machine
and machine guns and opened fire “in pursuit” of the
escaping suspects the prosecutor and the court were under an
obligation to assess whether recourse to firearms had been justified
and the level of force used by the police proportionate to the
achievement of the permitted aims.
Furthermore,
the manner in which the operation was carried out was not examined
and the authorities unconditionally embraced the statements of the
police officers who maintained that they had been aiming at the tyres
with the sole aim of stopping the vehicle notwithstanding the fact
that the tyres remained untouched and all the shots had hit the
people in the car and the upper part of the car.
- In
view of the lack of a thorough and effective investigation into the
death of Mr Kałucki in that the necessity of using such a high
level of lethal force was not called into question, the Court finds
that there has been a violation of the procedural limb of Article 2
of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
first applicant complained of a violation of Article 3 of the
Convention in that Mr Kałucki had been subjected to inhuman
treatment prior to his death. The applicant referred to the fact that
the police had removed Mr Kałucki from the car by pulling him by
the head, which must have caused him unbearable suffering. Moreover,
no first aid had been offered to Mr Kałucki until the arrival of
the ambulance twenty minutes later.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- The Court observes that the complaint under Article 3
of the Convention has the same factual background as the above
complaint under Article 2 of the Convention. Moreover, in finding a
violation of the latter provision the Court also had regard to the
shortcomings in the organisation of the police operation, in
particular the unavailability of an ambulance at the scene (see
paragraph 57 above). In the light of these findings the Court
considers that it is not necessary to examine the facts of the case
separately under Article 3 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
A. Damage
- The
applicants submitted that they had sustained non-pecuniary damage but
they did not claim any specific sum in this respect. The second
applicant also claimed reimbursement of her medical treatment and the
first applicant school expenses for her and Mr Kałucki's
daughter.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, taking into account the particular circumstances of
the case, it awards each of the applicants 20,000 euros (EUR) in
respect of non-pecuniary damage.
B. Costs and expenses
- The
applicants, who were represented by a lawyer, did not claim
reimbursement of any costs and expenses.
C. Default interest
- 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
- Declares the applications admissible;
- Holds that there has been a violation of Article
2 of the Convention on account of Mr Kałucki's death;
- Holds that there has been a violation of Article
2 of the Convention as regards the absence of an effective
investigation into Mr Kałucki's death;
- Holds that there is no need to examine the
complaint under Article 3 of the Convention;
- Holds
(a) that
the respondent State is to pay each of the applicants, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 20,000 (twenty thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage to be converted into
Polish zlotys at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 23 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
