Published on 19 September 2022

FOURTH SECTION

Application no. 34129/21 Mohemmed Momtaz AL MADANI against the Netherlands lodged on 29 June 2021 communicated on 29 August 2022

SUBJECT MATTER OF THE CASE

The application concerns an incident which occurred on 30 May 2018 when the applicant’s 27-year-old son Y., who was reportedly in a severely confused state of mind, was shot by the police and fatally wounded.

When the police arrest and support team (“AOT”), which had been tasked to apprehend Y. and take him to a mental health institution, entered the apartment, Y. was carrying a knife and he did not react to the police calls to drop the knife. Due to the lack of any desired reaction from Y. when unleashing the police dog or applying the taser, the police officers shot at his legs and hip. Y. was heavily wounded and taken to hospital where he died on 4 June 2018.

The applicant’s subsequent complaint against the public prosecutor’s decision not to institute criminal proceedings against the police officers who had fired at his son was rejected by the Arnhem-Leeuwarden Court of Appeal on 7 January 2021. It considered it plausible that the police officers had used their firearms in legitimate self-defence and concluded that the requirements of subsidiarity and proportionality had been met.

The applicant complains under Article 2 of the Convention that the force used against his son could not be regarded as absolutely necessary to defend the arrest team from unlawful violence or to effect a lawful arrest. He alleges that the operation had not been planned and controlled so as to minimise, to the greatest extent possible, recourse to lethal force or incidental loss of life. The applicant also complains that the investigation had fallen short of the adequateness and effectiveness required under this provision.

QUESTIONS TO THE PARTIES

1. Has the applicant’s son’s right to life, ensured by Article 2 of the Convention, been violated in the present case? In particular, did the applicant’s son’s death result from a use of force which was “no more than absolutely necessary” for the purposes of paragraph 2 (b) of this Article (see, inter alia , Tekin and Arslan v. Belgium , no. 37795/13, §§ 90 and 99, 5 December 2017, and Shchiborshch and Kuzmina v. Russia , no. 5269/08, § 206, 16 January 2014)?

In this context and taking into account the particular circumstances of the case, can it be said that the authorities who were aware of the mental condition of the applicant’s son, had taken appropriate care to ensure that any risk to life was minimised and that they were not negligent in their choice of action (see Andronicou and Constantinou v. Cyprus , no. 25052/94, § 181)?

2. Having regard to the procedural protection of the right to life, did the investigation conducted by the domestic authorities comply with the requirements under Article 2 of the Convention (see Giuliani and Gaggio v. Italy [GC], no. 23458/02, §§ 174‑182 and §§ 298 ‑ 306, ECHR 2011 (extracts) and Armani Da Silva v. the United Kingdom [GC], no. 5878/08, §§ 229-239 and §§ 244‑248, ECHR 2016)?

REQUEST OF INFORMATION FROM THE GOVERNMENT

1. With reference to the Police Mental Health Care Covenant of 2012 ( Convenant Politie-GGZ 2012 ), of which the Court is aware, the Government are requested to inform the Court of (possibly other) guidelines or agreements on police action with regard to dealing with confused persons or persons suffering from mental disorders, and submit copies of these documents.

2. The Government are requested to submit the following documents to which the Court of Appeal refers in its decision of 7 January 2021:

(a) the official report ( het ambtsbericht ) of the acting chief public prosecutor ( waarnemend hoofdofficier van justitie ) of the Public Prosecutor’s Office ( het parket ) of Oost-Nederland; and

(b) the written report ( het schriftelijk verslag ) of the Advocate General ( Advocaat-Generaal ).