Article 2 of the Convention (material aspect). Use of force. Potentially fatal injuries caused by gunfire from the police officers, in order to stop an attempted robbery. Inaccurate regulations regarding the use of firearms Cover Image

Articolul 2 din Convenție (aspect material). Recurgerea la forță. Răniri potențial mortale cauzate prin focuri de armă ale polițiștilor pentru oprirea unei tentative de furt. Reglementare imprecisă cu privire la uzul armelor de foc
Article 2 of the Convention (material aspect). Use of force. Potentially fatal injuries caused by gunfire from the police officers, in order to stop an attempted robbery. Inaccurate regulations regarding the use of firearms

Author(s): Antonia-Eleonora Constantin
Subject(s): Law, Constitution, Jurisprudence, Civil Law
Published by: Universul Juridic
Keywords: the right to life; violation; material aspect; procedural aspect; positive obligations; authorities for restoring public order; recourse to armed force; potentially fatal injuries;

Summary/Abstract: Article 2 of the Convention does not allow exceptions to the right to life, unless the use of force is "absolutely necessary in a democratic society". The use of lethal force by the police may be justified in certain circumstances. In any case, the Art. 2 of the Convention ”does not provide a blank check”. Exceeding the legal limits and the arbitrary action of the state agents, are being incompatible with the effective observance of human rights. This means that the police operations, in addition to the obligation of being authorized under the national law, must be sufficiently regulated the law, within a system of adequate and effective safeguards against the arbitrariness and abuse of force and even against the preventable accidents. The police officers must not lack precision when exercising their competences, either in the context of a prepared operation or in the spontaneous pursuit of a person considered to be dangerous. To this end, there must be a legal and administrative framework defining the restrictive conditions, under which the law enforcement officials may use force and use firearms, taking into account the international standards developed in the field. As a part of its obligation to protect the right to life, the State must ensure that it provides, in the event of the death or a lifethreatening physical injury, an effective and independent judicial system, that allows it to establish the facts, prosecute the responsible individuals and grant adequate reparation to the victims, in a short while. Given the fact that in such cases, the agents or bodies of the State concerned, are often the only ones who know the precise circumstances of the death, the initiation of the appropriate internal procedures – the criminal proceedings, disciplinary proceedings and the procedures for the exercise of appeals to the victims and families - they must meet the requirements of independence and impartiality of a proper official investigation. The investigation carried out must also be effective and, in this respect, it must make it possible to identify and possibly punish those responsible. In this case, it is not an obligation regarding a result, but an obligation regarding a diligence. Authorities must have taken reasonable steps to gather the evidence of the incident. Any deficiency of the investigation which would weaken its ability to lead the identification of those responsible risks leading to the conclusion that it is inappropriate. In this context, it is implicit the requirement of expeditiousness and reasonable diligence The Court acknowledges that, due to circumstances, there may be obstacles or difficulties, which may prevent the investigation from progressing in certain particular cases. However, it is essential that there be a prompt response from the authorities when investigating the use of life-threatening force, as this is considered to be essential in maintaining the public confidence, in respecting the principle of legality and to avoid any appearance of complicity or tolerance reagarding the illegal actions. In addition, for the purpose that an investigation against the state agents to be considered effective, it is necessary that the persons in charge of conducting the inquiri and investigation, be independent of those involved in the events. The Court established the existence of a violation of the Art. 2 of the Convention (in material terms) whereas, in this specific case, similary to other cases concerning the police operations during which firearms were used, followed by a serious injury or death of the persons alleged to have committed the crimes (Soare et al., Gheorghe Cobzaru), the Romanian legislation regulating the use of firearms and ammunition did not provide the sufficient level of protection of the right to life "by law" required for contemporary democratic societies in Europe. On the other hand, although the criminal situation was known in the context of which a minor was seriously injured, the only measures taken by the police were to increase the number of police officers from the transport police station and equip them with firearms and non-lethal ammunition, without any actions to prepare and assess the possible risks of such operations. The Court also established the existence of a violation of the Art. 2 of the Convention (from the procedural point of view), whereas: the authorities were not notified ex officio regarding the applicant's injury, but only 8 months, after the complaint; they did not diligently investigate the case in order to exactly establish the circumstances in which the police officer used the firearm, causing bodily injury to the applicant; during the early stages of the investigation, there were no concerns regarding the collection and preservation of certain evidence. These deficiencies were all the more serious in the current situation, in which, by means of the intervention of the police, the applicant was caused potentially fatal injuries, which the police were certainly aware of. In addition, certain aspects regarding the angle and the shooting distance remained vague, and technical and forensic examinations were drawn up several years after the commission of the facts, which made it impossible to draw the definite conclusions. The delay of opening the investigation and the shortcomings of the first phase had consequences to the effectiveness of the procedure. The duration of the procedure, longer than 9 years, was considered incompatible by the Court, as regards all due speed requirements of the Art. 2 of the Convention.

  • Issue Year: 2020
  • Issue No: 2
  • Page Range: 314-337
  • Page Count: 24
  • Language: Romanian
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