Resolution CM/ ResDH (2010)178 [1]

Execution of the judgment of the European Court of Human Rights

Ramsahai against the Netherlands

(Application No. 52391/99, judgment of 15 May 2007, Grand Chamber)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the lack of an effective investigation into the killing of Moravia Ramsahai , son and grandson of the applicants respectively (procedural violation of Article 2) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicants the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to clos e the examination of this case.

Appendix to Resolution CM/ ResDH (2010)178

Information about the measures to comply with the judgment in the case of

Ramsahai against the Netherlands

Introductory case summary

The case concerns the failure by the respondent state in its obligation to conduct an effective investigation of the circumstances of the killing of Moravia Ramsahai , son and grandson respectively of the applicants (procedural violation of Article 2). The victim was shot and killed by an officer of the Amsterdam/ Amstelland Police Force on 19/07/1998, after he had drawn and had begun to point a pistol at two police officers present on the scene.

The Court found that the fatal shot fired by the police officer in question was “no more than absolutely necessary” within the meaning of Article 2. The Court also considered that the shooting of Moravia Ramsahai did not violate Article 2 (§ 288 of the judgment). However, the Court concluded that the investigation carried out was inadequate and did not provide sufficient guarantees of independence.

Regarding the independence of the investigation, the Court highlighted a number of shortcomings (see paragraphs 329-331 of the judgment). In particular, it noted that “the failure to test the hands of the two officers for gunshot residue and to stage a reconstruction of the incident, as well as the apparent absence of any examination of their weapons [ ... ] and the lack of an adequate pictorial record of the trauma caused to Moravia Ramsahai ’ s body by the bullet [ ... ] had not been explained (§ 329 of the judgment). In addition, the officers concerned “were not kept separated after the incident and were not questioned until nearly three days later [ ... ]. Although [ ... ] there [was] no evidence that they colluded with each other or with their colleagues on the Amsterdam/ Amstelland police force, the mere fact that appropriate steps were not taken to reduce the risk of such collusion amount[ ed ] to a significant shortcoming in the adequacy of the investigation (§ 330 of the Grand Chamber ’ s judgment).

Regarding the independence of the police investigation, the Court firstly held that “the independence of the State Criminal Investigation Department [had] not been questioned before the Grand Chamber, which for its part [saw] no reason to reach a different conclusion from that of the Chamber on this point” » (§ 333 of the judgment). The Court found, however, that fifteen and a half hours had elapsed from the victim ’ s death to the intervention of the State Criminal Investigation Department and that no explanation was given for the delay. The Court held that in the light of the particulars available to it, such a delay was unacceptable and that the Department ’ s subsequent involvement could not suffice to remove the taint resulting from the Amsterdam/ Amstelland force ’ s lack of independence. The Court held that these grounds alone were enough to prompt its finding of a violation of Article 2 of the Convention in that the police investigation had not been sufficiently independent.

However, the Court stressed in paragraph 357 that “there [had] not [ ... ] been a violation of Article 2 in that the investigation was supervised by the public prosecutor to whose authority [the officers concerned] and their colleagues were subject [ ... ], nor as regards the conditions of the applicants ’ access to the investigation [ ... ], nor in that the Court of Appeal ’ s decision of 26 April 1999 was not made public”.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

20 000 EUR

7 299 EUR

27 299 EUR

Paid on 2/07/2007

b) Individual measures

The Court awarded just satisfaction in respect of the non-material damage incurred. On the basis of the evidence adduced before the Court, the Chamber established the circumstances of the victim ’ s death. These circumstances were not contested before the Grand Chamber. In its assessment of the facts, the Court held that the police officers ’ use of force was no more than absolutely necessary and that the shooting of the victim had not violated Article 2. Consequently, it appears that a further investigation at the domestic level would probably not produce a different result. In these circumstances, no other individual measure apart from payment of just satisfaction seems necessary.

II. General measures

The Netherlands authorities have taken a number of measures following the Chamber judgment in this case (see §§ 258 and 267 of the Grand Chamber judgment). These measures can be summarised as follows:

2) Lack of independence of investigation : The duty system of the State Criminal Investigation Department was improved following a decision of the Amsterdam Court of Appeal of 23/06/2004 in order to ensure the department ’ s quick arrival at the place of incident. As a consequence, the State Criminal Investigation Department today reaches the scene of incident on average within an hour or an hour and a half after an incident is reported. Furthermore, following the Chamber judgment in this case, the Board of Prosecutors General issued a new Instruction on 26/07/2006 the action to be taken in the event of use of force by a (police) officer. This Instruction applies to all officials vested with police powers and covers situations involving allegations of violations of Articles 2 and 3 of the Convention. Whenever an incident has taken place to which the Instruction applies, the investigation will be carried out by the State Criminal Investigation Department. The regional police force should immediately report the incident to the department. The duty officer of the Department will also proceed to the scene of the incident as quickly as possible. The local police should take all necessary urgent measures, such as cordoning off the area concerned, caring for any casualties and taking down the names of any witnesses. They are not themselves to carry out any investigations unless and to the extent that their involvement is unavoidable. All investigations that cannot be carried out by the Department will be conducted by the Internal Investigations Bureau of the police region concerned or by members of a neighbouring police force (§§260-264 of the judgment).

Lastly, the judgment was published in two legal journals in the Netherlands ( NJB 2007/27 pp. 1678-1679 and AB 2007/77; NJCM 2007, pp. 1179-1195; EHRC 2007/83, pp. 780-799; and NJ 2007/618).

III. Conclusions of the respondent state

The government considers that no individual measure, apart from the payment of just satisfaction, is required, that the measures adopted will prevent similar violations and that the Netherlands have thus complied with their obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 2 December 2010 at the 1100th meeting of the Ministers’ Deputies