Information Note on the Court’s case-law 189

October 2015

Haász and Szabó v. Hungary - 11327/14 and 11613/14

Judgment 13.10.2015 [Section II]

Article 2

Article 2-2

Use of force

Unjustified use of potentially lethal force by an off-duty police officer: Article 2 applicable; violation

Facts – The applicants are two women, Ms Haász (the first applicant) and Ms Szabó (the second applicant). After returning from an ex cursion to a lake, they decided to spend the night in their car. During the night a volunteer law-enforcement officer was tipped off about the sighting of a suspicious car. He informed an off-duty police officer and together they went in search of the car. On noticing the applicants’ car, they parked perpendicularly in front of it, got out of their vehicle and started to run towards it. The first applicant, frightened by the sight of two people in civilian clothes running towards her, attempted to drive awa y. The police officer waved at the car shouting “Police! Stop!” and fired a warning shot. He then shot twice more at the car, the second shot narrowly missing the second applicant’s head. The officer eventually put his gun away and presented his police ID at which point it became clear that the incident was based on a misunderstanding. The police officer’s superior, investigating the officer’s use of his firearm, concluded that while he had no intention of endangering life, his actions had been unprofession al. The Prosecutors Office discontinued the criminal investigation finding that the police officer’s use of his firearm had been lawful in face of the danger represented by the car driving towards him and accepting the officer’s account that he had fired t he shots because he had believed there was a danger to his colleague’s life.

In their application to the European Court, the applicants complained of violations of the substantive and procedural limbs of Article 2 of the Convention. The second applicant’s application was declared inadmissible as it was lodged out of time.

Law – Article 2

(a) Applicability – The fact that the force used against the first applicant was not lethal did not exclude examination of her complaints under Article 2. Even though the police officer had not intended to kill her, the use of a firearm shot in her direction and narrowly missing the second applicant’s head had generated a risk of serious injury or loss of life. Thus, she was a victim of conduct which, by its nature, put her life at risk and Article 2 was applicable.

(b) Substantive limb – Although the police intervention was not pre-planned, this was not a case in which law-enforcement officers had been called upon to respond to unexpected circumstances in the heat of the m oment, since the entire incident had taken place largely as a result of the police officer’s own conduct. In those circumstances, where the need to resort to potentially lethal force occurred as a consequence of a series of decisions and measures taken by a police officer, those decisions would engage the State’s responsibility to the same extent as the planning and control of police operations.

The police officer had intervened in order to stop the applicants’ car as he believed there was a danger his colleague would be run over. However, after discovering the car, the officers had established that there were no signs of any criminal act. There h ad been no immediate need for action, whether to effect an arrest or to prevent the commission of a crime.

When approaching the applicants and blocking the path of their car the officers did not pay any heed to the fact that neither of the persons in the c ar was wanted by the police or posed any known danger. The applicants could not possibly have known that the men approaching their car were law-enforcement officers since the officers were dressed in plain clothes, had no insignia and were driving an unmar ked car. To approach the car in the dark without any visible identification and create a threatening setting by blocking the car’s path had been liable to provoke an unpredictable reaction from those inside the car. In addition, the conduct of the two offi cers had been without any instruction or supervision by a senior officer.

In sum, the police officer’s actions before the shooting were not reasonable in the light of the available information on the nature of the threat posed and were not conducted in suc h a way as to minimise the risk of the events unfolding into a life-threatening situation culminating in the use of firearms.

Conclusion : violation (unanimously).

(c) Procedural limb – The national authorities’ assessment of the events – which did not include any judicial fact-finding – had been limited to examining whether the police officer had committed a criminal offence by the impugned shooting, without any examination of the wid er context of, or the events leading up to, the incident. In particular, there had been no examination of the manner in which the operation to track and halt the applicants had been carried out and of the effect it had had on the necessity of using a firea rm. There had thus been a lack of thorough and effective investigation into the need to use potentially lethal force.

Conclusion : violation (unanimously).

Article 41: EUR 15,000 to the first applicant in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

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

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