MAKARATZIS - Greece (Nº 50385/99)

Judgment 20.12.2004 [Grand Chamber]]

Facts: The applicant, who drove through a red traffic light in the centre of Athens, was pursued by several police cars and motorcycles. He did not stop, and during the pursuit his car collided with several other vehicles, injuring two drivers. The applicant alleged that, after he had broken through five police roadblocks, the police officers started firing at his car. He eventually stopped at a petrol station, but did not get out. The police officers continued firing. The applicant alleged that the policemen knelt down and fired at him, whereas the Government maintained they were firing in the air. The applicant was finally arrested by a police officer who managed to break into the car. He was immediately driven to hospital, where he remained for nine days. He was injured in the right arm, the right foot, the left buttock and the right side of the chest. One bullet was removed from his foot and another is still inside his buttock. The applicant’s mental health, which had broken down in the past, has deteriorated considerably since the incident. The administrative investigation carried out by the police after the incident identified twenty-nine of the police officers who had taken part in the chase, but other policemen who had left the scene without revealing their identity were left unidentified. Laboratory tests on the applicant’s car and the firearms were also conducted. The public prosecutor opened criminal proceedings against seven police officers on charges of causing serious bodily harm and unauthorised use of weapons. They were acquitted as it had not been established beyond reasonable doubt that the accused officers where the ones who had injured the applicant, given that many other shots had been fired from unidentified weapons. Moreover, the first-instance criminal court held that the police officers had used their weapons for the purpose of trying to immobilise a car whose driver they considered to be a dangerous criminal. The applicant did not have the right to appeal against the judgment.

Law: Article 2 – Applicability: Physical ill-treatment by State officials which does not result in death may, in exceptional circumstances, bring the facts of a case within the scope of the safeguard afforded by Article 2. The policemen who had chased the applicant and repeatedly fired at him had not intended to kill him. However, the fact that he was not killed was fortuitous. He had been the victim of conduct which had put his life at risk and Article 2 was thus applicable.

As to the State’s positive obligation to protect life by law: At the time of the events, the legislative framework concerning the use of firearms by police officers was contained in a law dating back to 1943 which listed a wide range of situations where police officers could use firearms without being liable for the consequences. The law had been subsequently amended with a provision stating that their use was authorised “only when absolutely necessary and less extreme methods had been exhausted”. Given the uncontrolled and dangerous manner of driving of the applicant, the police could reasonably have considered that there was a need to resort to the use of weapons, and, as such, recourse to some lethal force could be said to have been justified. However, the operation had involved a large number of police officers in a chaotic and largely uncontrolled chase in which there was an absence of clear chains of command. The degeneration of the situation could largely be attributed to the fact that at the time neither the individual police officers nor the chase, seen as a collective police operation, had benefited from an appropriate structure in domestic law or practice setting out clear guidelines and criteria governing the use of force. The authorities had not complied with their positive obligations under this provision, and, accordingly, the applicant had been the victim of a violation of Article 2 on this ground. In view of this conclusion, it was not necessary to examine the life-threatening conduct of the police under the second paragraph of this article.

Conclusion: violation (12 votes to 5).

As to the adequacy of the investigation: The investigation had been incomplete and inadequate, highlighted in particular by the inability of the authorities to identify all the officers who had been involved in the shooting and wounding of the applicant.

Conclusion: violation (unanimously).

Article 3 – In view of the grounds on which a dual violation of Article 2 had been found, no separate issue arose under this article.

Conclusion: no separate issue (15 votes to two).

Article 13 – In view of the finding of a violation of Article 2 in respect of its procedural aspect, no separate issue arose under this article.

Conclusion: no separate issue (16 votes to one).

Article 41 – The Court awarded the applicant 15,000 euros in respect of non-pecuniary damage.