Information Note on the Court’s case-law

October 1997

Andronicou and Constantinou v. Cyprus - 25052/94

Judgment 9.10.1997

Article 2

Article 2-1

Life

Article 2-2

Use of force

Alleged unlawful killing of a young couple by officers of a special police unit (MMAD) in the course of a rescue operation: no violation

[This summary is extracted from the Court’s official reports (Series A or Reports of Judgments and Decisi ons). Its formatting and structure may therefore differ from the Case-Law Information Note summaries.]

I. GOVERNMENT’S PRELIMINARY OBJECTIONS

A. Non-exhaustion of domestic remedies

Government’s assertion that applicants failed to take civil proceedings to claim compensation on strength of authorities’ ex gratia offer of legal aid.

Effective remedy in circumstances would have been institution of criminal proceedings against officers i nvolved – Attorney-General refused applicants’ request – in addition, detailed and reasoned findings of domestic commission of inquiry after exhaustive investigation of circumstances of killings likely in practice to remove any reasonable prospects which a pplicants had of winning a civil action – commission of inquiry chaired by most senior judicial appointee in respondent State.

Conclusion : objection dismissed (seven votes to two).

B. Abuse of process

Applicant’s refusal either to enter or continue negotia tions on terms of friendly settlement over alleged breach of Convention right not to be construed as abuse of process – in instant case, proposed settlement did not moreover contain any admission of authorities’ liability for deaths of couple, as sought by applicants.

Conclusion : objection dismissed (unanimously).

II. ARTICLE 2 OF THE CONVENTION

Reiteration of Court’s case-law on principles governing use of lethal force by security forces.

A. Application of article 2 to facts in issue

Court takes Commission’s findings of fact, which are not disputed, to be an accurate and reliable account of circumstances of case – Court must make its own assessment as to whether facts disclose a violation of Article 2.

B. Planning and control of rescue operation

Court only concerned to establish whether in circumstances authorities had taken appropriate care in planning and control of rescue operation, including decision to deploy MMAD officers, to minimise any risk to lives of couple – not appropriate to assess alternative ways of handling situation with benefit of hindsight.

Authorities conducted prolonged negotiations in knowledge that they were dealing with a young couple – negotiations carried out in a reasonable manner in view of circumstances – ho wever, as situation became increasingly fraught with danger, authorities could reasonably conclude that decisive action needed to bring an end to incident in view of failure of negotiations phase – justified fear that young man, known to be armed, would ki ll his fiancée at midnight and commit suicide – decision to send in MMAD officers only taken after careful reflection and high-level consultation.

Although officers armed with machine guns it was never intended that these weapons be used – officers given c lear instructions to use only proportionate force and to open fire only if life of young woman or their own lives in danger.

Not shown in view of above considerations that rescue operation had not been planned and organised in a way which minimised to grea test extent possible any risk to lives of couple.

C. Administration of force

Officers’ use of force was direct result of young man’s decision to open fire when rescue team entered flat – officers had to take split-second decisions to save life – officers’ honest, even if mistaken, belief at the time that young man constituted a real and immediate danger to life of young woman and to lives of officers – valid reasons for this belief in circumstances and for officers’ conclusion that it was necessary to kill young man to save young woman’s life as well colleagues’ lives – clearly regrettable that Officers nos.2 and 4 used as much fire power as they did – however, Court cannot with detached reflection substitute its own assessment of situation for that of offic ers confronted with agonising dilemma and the need to neutralise any risk presented by young man to lives of others.

Use of lethal force in circumstances did not exceed what was absolutely necessary for purposes of defending life of young woman and lives o f officers.

Conclusion : no violation (five votes to four).

III. ARTICLE 6 § 1 OF THE CONVENTION

Applicants’ assertion that absence of legal-aid system in respondent State for civil proceedings resulted in a denial of possibility to seek damages in respect of deaths of couple – justified in refusing to accept authorities’ ex gratia offer of legal aid – offer not administered independently and arbitrarily withdrawn shortly afterwards.

Court reiterates that it is not its function to indicate measures to be tak en by Contracting States to guarantee litigants an effective access to a court – in instant case, ex gratia offer would have provided solution to overcome applicants’ lack of resources to take civil proceedings – applicants cannot maintain therefore that t hey were denied an effective access to a court.

Conclusion : no violation (unanimously).

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

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