Information Note on the Court’s case-law No. 99

July 2007

Celniku v. Greece - 21449/04

Judgment 5.7.2007 [Section I]

Article 2

Positive obligations

Investigative failings resulting in persons responsible for a fatal shooting following the intervention of an off-duty police officer not being called upon to furnish an explanation: violation

Facts : A man (“the victim”) was fatally wounded during an attempted arrest by police. An off-duty police officer was informed of the victim’s whereabouts. He alerted a senior officer in charge of a group of three officers who, after obtaining leave to apprehend the victim and the other four Albanian nationals with him and asking the officer not to take part in the operation, entered the café where the suspects were located and ordered them to raise their arms in the air and get down on the ground. The victim refused to comply and attempted to slide his hand inside his raincoat. The off-duty policeman moved towards him with his firearm in his hand. The victim kicked him in the right hand, and a shot went off which struck the victim in the head, killing him. The policeman searched the victim’s body. An administrative inquiry was started immediately in order to ascertain whether the use of force had been justified.

Law : Article 2 – As to the victim’s death : The fatal shot had been fired as a result of the sudden reaction by the victim, consisting in kicking the police officer’s hand in which the weapon was held. Accordingly, the use of lethal force was not attributable to the respondent State.

Conclusion : no violation (unanimously).

The police operation : The policeman, who had not been on duty, had of his own initiative laid himself open to the actions of the victim resulting in the fatal shot being fired. The lack of clear rules could explain why the officer had acted hastily. Hence, while the victim’s death could not in itself be attributed to the domestic authorities, the way in which the operation had been conducted showed that the authorities had not taken appropriate care to ensure that any risk to the persons present at the scene of the incident was kept to a minimum. They had therefore demonstrated negligence in their course of action.

Conclusion : violation (unanimously).

As to the inquiry into the victim’s death : The authorities had shown their willingness to conduct an administrative inquiry in order to determine whether the use of force had been justified. However, there were problems as to the independence, objectivity and effectiveness of the inquiry. The police officers in charge of conducting it were attached to the same police headquarters as the officers involved. In addition, the person who had fired the fatal shot was the person least qualified to search the victim’s body. Furthermore, the police officers involved had not preserved the scene. They had acted in the absence of clear rules and instructions as to the procedures to be followed in such a situation.

Conclusion : violation (unanimously).

Inadmissible under Article 14 – It was not established beyond any reasonable doubt that the actions of the State agents had been motivated by racial prejudice against persons of Albanian origin: manifestly ill-founded .

Article 41 – EUR 4,010 for pecuniary damage and EUR 20,000 for non-pecuniary damage.

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

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