DISSENTING OPINION OF JUDGE S SPIELMAN N AND MALINVERNI

(Translation)

We agree with the majority that there has in this case been a violation of the respondent State ' s obligation under Article 2 of the Convention to conduct an adequate and effective investigation with a view to establishing the extent of the State agents ' responsibility for Chichek Mammadova ' s death.

However, unlike the majority, we are of the opinion that in this case the authorities were also responsible for a violation of Article 2 on grounds of failure to comply with the positive obligation incumbent on them to protect the applicant ' s wife ' s right to life.

In this connection we would like to reiterate that the first sentence of Article 2 enjoins the Contracting States to take appropriate steps to safeguard the lives of those within their jurisdiction (see L.C.B. v. the United Kingdom , 9 June 1998, § 36, Reports of Judgments and Decisions 1998–III). This also extends in appropriate circumstances to a positive obligation on the authorities to take preventive operational measures to protect an individual from another individual or, in particular circumstances, from himself (see Osman v. the United Kingdom , 28 October 1998, § 115, 1998–VIII; Keenan v. the United Kingdom , no. 27229/95, § 89, ECHR 2001–III; and Renolde v. France , no. 5608/05, § 81, 16 October 2008 -).

A failure to comply with this positive obligation will occur where it has been established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from self-harm and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see Branko Toma šić and Others v. Croatia , no. 46598/06, § 51, ECHR 2009-., and Tanribilir v. Turkey , no. 21422/93, § 70, 16 November 2000).

The principal issue in the present case is whether at some point during the course of the operation the State agents became aware or ought to have become aware that Chichek Mammadova posed a real and immediate risk of suicide and, if so, whether they did all that could reasonably have been expected of them to prevent that risk.

We would like to stress that, as a general rule, in any police operation the police are expected to place the flow of events under their control. In a situation where an individual threatens to take his or her own life in plain view of State agents and where this threat is an emotional reaction directly induced by the State agents ' actions or demands, the latter should treat this threat with the utmost seriousness as constituting an imminent risk to that individual ' s life, regardless of how unexpected that threat might have been.

In our opinion, in a situation such as the present case, if the State agents become aware of such a threat a sufficient time in advance a positive obligation arises under Article 2 requiring them to prevent the threat from materialising by any means which are reasonable and feasible in the circumstances.

In the context of the present case, as soon as the State agents became aware of the threat, they could have tried to defuse the situation by verbally persuading Chichek Mammadova to refrain from any action threatening her life.

Subsequently, as soon as the poor woman had poured kerosene over herself they should have intervened and prevented her from igniting it. Instead, the police officers did not take her threats seriously. One of them even offered her a box of matches, mockingly encouraging her to keep her word and set fire to herself (see paragraph 17). Incidentally, this detail shows, moreover, that the police officers were near the victim at the time . Only one police officer took any steps to put out the fire by wrapping Chichek Mammadova in a blanket.

In addition, and this circumstance is of particular concern, none of the State agents attempted to call an ambulance or provide any assistance in transporting Chichek Mammadova to hospital.

These shortcomings lead us to the conclusion that the police officers failed to comply with the positive obligations incumbent on them under Article 2, and that there has therefore been a violation of that provision.