Information Note on the Court’s case-law 194

March 2016

Armani Da Silva v. the United Kingdom [GC] - 5878/08

Judgment 30.3.2016 [GC]

Article 2

Article 2-1

Effective investigation

Alleged failure to conduct effective investigation into fatal shooting of person mistakenly identified as suspected terrorist: no violation

Facts – The applicant was a relative of Mr Jean Charles de Menezes, who was mistakenly ident ified as a terrorist suspect and shot dead on 22 July 2005 by two special firearms officers in London. The shooting occurred the day after a police manhunt was launched to find those responsible for four unexploded bombs that had been found on three underg round trains and a bus in London. It was feared that a further bomb attack was imminent. Two weeks earlier, the security forces had been put on maximum alert after more than 50 people had died when suicide bombers detonated explosions on the London transpo rt network. Mr de Menezes lived in a block of flats that shared a communal entrance with another block where two men suspected of involvement in the failed bombings lived. As he left for work on the morning of 22 July, he was followed by surveillance offic ers, who thought he might be one of the suspects. Special firearms officers were dispatched to the scene with orders to stop him boarding any underground trains. However, by the time they arrived, he had already entered Stockwell tube station. There he was followed onto a train, pinned down and shot several times in the head.

The case was referred to the Independent Police Complaints Commission (IPCC), which in a report dated 19 January 2006 made a series of operational recommendations and identified a numb er of possible offences that might have been committed by the police officers involved, including murder and gross negligence. Ultimately, however, it was decided not to press criminal or disciplinary charges against any individual police officers in the a bsence of any realistic prospect of their being upheld. Subsequently, a successful prosecution was brought against the police authority under the Health and Safety at Work Act 1974. The authority was ordered to pay a fine of 175,000 pounds sterling (GBP) p lus costs, but in a rider to its verdict that was endorsed by the judge, the jury absolved the officer in charge of the operation of any “personal culpability” for the events. At an inquest in 2008 the jury returned an open verdict after the coroner had ex cluded unlawful killing from the range of possible verdicts. The family also brought a civil action in damages which resulted in a confidential settlement in 2009.

In her application to the European Court, the applicant complained about the decision not to prosecute any individuals in relation to Mr de Menezes’ death.

On 9 December 2014 a Chamber of the Court decided to relinquish jurisdiction in the case in favour of the Grand Chamber.

Law – Article 2 ( procedural aspect ): The Court’s case-law had establish ed a number of requirements for an investigation into the use of lethal force by State agents to be “effective”: those responsible for carrying out the investigation had to be independent from those implicated in the events; the investigation had to be “ad equate”; its conclusions had to be based on thorough, objective and impartial analysis of all relevant elements; it had to be sufficiently accessible to the victim’s family and open to public scrutiny; and it had to be carried out promptly and with reasona ble expedition.

The investigation in the instant case was conducted by an independent body (the IPCC) which had secured the relevant physical and forensic evidence (more than 800 exhibits were retained), sought out the relevant witnesses (nearly 890 witness statements wer e taken), followed all obvious lines of enquiry and objectively analysed all the relevant evidence. The deceased’s family had been given regular detailed briefings on the progress and conclusions of the investigation, had been able to judicially review the decision not to prosecute, and were represented at the inquest at the State’s expense, where they had been able to cross-examine the witnesses and make representations. There was nothing to suggest that a delay that had occurred in handing the scene of th e incident to the IPCC had compromised the integrity of the investigation in any way.

Although the applicant had not complained generally about the investigation, these considerations were important to bear in mind when considering the proceedings as a wh ole, in view of the applicant’s specific complaints which solely concerned two aspects of the adequacy of the investigation: (a) whether the investigating authorities were able properly to assess whether the use of force was justified and (b) whether the i nvestigation was capable of identifying and – if appropriate – punishing those responsible.

(a) Whether the investigating authorities were able properly to assess whether the use of force was justified – The applicant had argued that the investigation had fallen short of the standard required by Article 2 because the authorities were precluded by domestic law from considering the objective reasonableness of the special firearms officers’ belief that the use of force was necessary.

The Court observed that t he principal question to be addressed in determining whether the use of lethal force was justified under the Convention was whether the person purporting to act in self-defence had an honest and genuine belief that the use of force was necessary. In addres sing that question, the Court would have to consider whether the belief was subjectively (as opposed to objectively) reasonable, having full regard to the circumstances that pertained at the relevant time. If the belief was not subjectively reasonable (tha t is, was not based on subjective good reasons), it was likely that the Court would have difficulty accepting that it was honestly and genuinely held.

The test for self-defence in England and Wales was not significantly different and did not fall short of that standard. In any event, all the independent authorities who had considered the actions of the two officers responsible for the shooting had carefully examined the reasonableness of their belief that Mr de Menezes was a suicide bomber who could detonat e a bomb at any second. Consequently, it could not be said that the domestic authorities had failed to consider, in a manner compatible with the requirements of Article 2, whether the use of force had been justified in the circumstances.

(b) Whether the investigation was capable of identifying and – if appropriate – punishing those responsible – The Court would normally be reluctant to interfere with a prosecutorial decision taken in good faith following an otherwise effective investigation. I t had, however, on occasion, accepted that “institutional deficiencies” in a criminal justice or prosecutorial system could breach Article 2.

In the instant case, the Court found, having regard to the criminal proceedings as a whole, that the applicant had not demonstrated the existence of any “institutional deficiencies” in the criminal justice or prosecutorial system giving or capable of giving rise to a procedural breach of Article 2 on the facts. In particular:

– The Court had never stated that the pro secutorial decision must be taken by a court and the fact that the decision not to prosecute was taken by a public official (the Crown Prosecution Service – CPS) was not problematic in and of itself, provided there were sufficient guarantees of independenc e and objectivity. Nor was there anything in the Court’s case-law to suggest that an independent prosecutor had to hear oral testimony before deciding whether or not to prosecute.

– The threshold evidential test* applied by the CPS in deciding whether to prosecute had been within the State’s margin of appreciation. In setting the threshold evidential test the domestic authorities were required to balance a number of competing interests, including those of the victims, the potential defendants and the publi c at large and those authorities were evidently better placed than the Court to make such an assessment. The threshold applied in England and Wales was not arbitrary, having been the subject of frequent reviews, public consultations and political scrutiny. There was no uniform approach among Contracting States and while the threshold adopted in England and Wales might be higher than that in certain other countries, this simply reflected the jury system that operated there. Nor did Article 2 require the evid ential test to be lowered in cases where deaths had occurred at the hands of State agents. The authorities of the respondent State had been entitled to take the view that public confidence in the prosecutorial system was best maintained by prosecuting wher e the evidence justified it and not prosecuting where it did not. In any event, a number of safeguards had been built into the system in cases of police shootings and deaths in custody.

– The Court was not persuaded that the scope of judicial review of de cisions not to prosecute (the domestic courts could only interfere with a prosecutorial decision if it was wrong in law) was too narrow. There was no uniform approach among member States with regard either to the availability of review or, if available, th e scope of that review.

***

In conclusion, while the facts of the case were undoubtedly tragic and the frustration of the family at the absence of any individual prosecutions was understandable, it could not be said that “any question of the authorities’ r esponsibility for the death ... was left in abeyance”.

As soon as it was confirmed that Mr de Menezes had not been involved in the attempted attack on 21 July 2005, the Metropolitan Police Service (MPS) had publicly accepted that he had been killed in erro r by special firearms officers. A representative of the MPS had flown to Brazil to apologise to his family face to face and to make an ex gratia payment to cover their financial needs. They were further advised to seek independent legal advice and assured that any legal costs would be met by the MPS. The individual responsibility of the police officers involved and the institutional responsibility of the police authority were considered in depth by the IPCC, the CPS, the criminal court, and the coroner and jury during the inquest. Later, when the family brought a civil claim for damages, the MPS agreed to a settlement with an undisclosed sum being paid in compensation.

The decision to prosecute the police authority did not have the consequence, either in law or in practice, of excluding the prosecution of individual police officers as well. Neither was the decision not to prosecute any individual officer due to any failings in the investigation or the State’s tolerance of or collusion in unlawful acts; rather , it was due to the fact that, following a thorough investigation, a prosecutor had considered all the facts of the case and concluded that there was insufficient evidence against any individual officer to meet the threshold evidential test.

The institutio nal and operational failings identified had resulted in the conviction of the police authority for offences under the Health and Safety at Work Act 1974. There was no evidence to indicate that the “punishment” (a fine of GBP 175,000 and costs of GBP 385,00 0) was excessively light for offences of that nature. This was not a case of “manifest disproportion” between the offence committed and the sanction imposed.

Accordingly, having regard to the proceedings as a whole, it could not be said that the domestic authorities had failed to discharge the procedural obligations under Article 2 to conduct an effective investigation into the shooting of Mr de Menezes which was capable of leading to the establishment of the facts, a determination of whether the force use d was or was not justified in the circumstances and of identifying and – if appropriate – punishing those responsible.

Conclusion : no violation (thirteen votes to four).

(See also McCann and Others v. the United Kingdom , 18984/91, 27 September 1995; Öneryıldız v. Turkey [GC], 48939/99, 30 November 2004, Information Note 69 ; and Giuliani and Gaggio v. Italy [GC], 23458/02, 24 March 2011, Information Note 139 )

* Under sections 5.2 and 5.3 of the Crown Prosecutors’ Code, Crown Prosecutors must be satisfied that there is enough evidence to provide a “realistic prospect of conviction”, in other words, that a properly directed jury is more likely than not to convict the defendant of the charge alleged.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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