Lexploria

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)

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W. v. THE FEDERAL REPUBLIC OF GERMANY

W. v. THE FEDERAL REPUBLIC OF GERMANY

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