JOINT DISSENTING OPINION OF JUDGES KARAKAÅž, WOJTYCZEK AND DEDOV

1. We respectfully disagree with the majority because in our view there has been a violation of Article 2 under its procedural limb in the instant case.

2. In the instant case the applicant has not complained of a violation of Article 2 under its substantive limb. In this respect the case has been settled between the parties with the payment of compensation to the victim ’ s family. We note, however, that had the case been brought under the substantive limb of Article 2, the Court would have had to find a violation of this provision. The substantive and procedural issues are so closely intertwined in the instant case that it is impossible to assess whether the respondent State has fulfilled its obligation under the procedural limb of Article 2 without taking into account the substantive dimension of the case.

3. In assessing compliance by the respondent State with its obligations, it is important to bear in mind the international standards on the use of force by the police. “Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty” (Article 3, Code of Conduct for Law Enforcement Officials, adopted by United Nations General Assembly Resolution 34/169 of 17 December 1979). “In general, firearms should not be used except when a suspected offender offers armed resistance or otherwise jeopardizes the lives of others and less extreme measures are not sufficient to restrain or apprehend the suspected offender” (Official commentary on Article 3 of the Code of Conduct). “Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life” (Principle 9, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990).

For those reasons, if the police plan an operation which may require the use of firearms, they have the duty to act with the utmost care and in particular to meticulously check all the relevant information on which the operational plan is based. While planning their operations, the police also have the obligation to carefully assess the available alternatives and to choose the means which entail the least risk for human life and health.

4. Article 2 of the Convention, as interpreted by the Court, requires that States carry out an investigation of cases of alleged unlawful killing by State agents. According to the established case-law of the Court, an investigation must be capable of leading to the establishment of the facts and, where appropriate, the identification and punishment of those responsible. Substantive criminal law, by defining specific offences, indicates the exact purpose of an investigation into a person ’ s death and in particular determines the specific issues which have to be investigated. Therefore, the quality of the investigation depends first and foremost on the quality of substantive law. An investigation will be capable of leading to the identification and punishment of those responsible only if there are adequate provisions of substantive criminal law. Defective provisions of substantive law can render the investigation ineffective from the perspective of Article 2. In particular, if national provisions of criminal law concerning the use of force by the police do not comply with the Convention standards, the authorities will not be able to investigate whether the use of lethal force by the police was absolutely necessary under Article 2 of the Convention. The investigation may then focus on other issues of lesser importance from the viewpoint of the Convention.

5. The investigation in the instant case led to the conclusion that the members of the police force who killed Mr de Menezes had genuinely believed that he was about to detonate a bomb on the underground and that they were accordingly required to repel an imminent terrorist attack threatening the passengers. The killing of Mr de Menezes by members of the police can thus be characterised as an act committed in putative self ‑ defence. Force used in putative self-defence is never absolutely necessary.

Article 2 of the Convention requires that the substantive criminal law should ensure protection against excessive use of force by the police. This requirement of criminalisation does not mean that any use of force which is not absolutely necessary has to entail criminal liability. A person will bear criminal liability only if personal guilt can be shown. It would not be just to criminalise acts committed in putative self-defence if the factual error was justified in the specific circumstances and the person responsible could not be reproached for it. At the same time, in our view, Article 2 of the Convention requires the State to criminalise putative self-defence in so far as the factual error was not justified in the circumstances and the perpetrator may therefore legitimately be reproached for it. If acts of killing in putative self-defence based on an unjustified error are not properly criminalised and punished under domestic law, there is a serious danger that the police may use excessive force with lethal effect.

The Court has set the following standard which is relevant for assessing cases of putative self-defence.

“[T]he use of force by agents of the State in pursuit of one of the aims delineated in paragraph 2 of Article 2 of the Convention may be justified under this provision where it is based on an honest belief which is perceived, for good reasons , to be valid at the time but which subsequently turns out to be mistaken” (see McCann and Others v. the United Kingdom , 27 September 1995, § 200, Series A no. 324, emphasis added; see also Andronicou and Constantinou v. Cyprus , 9 October 1997, § 192, Reports of Judgments and Decisions 1997-VI; Brady v. the United Kingdom (dec.), no. 55151/00, 3 April 2001; Bubbins v. the United Kingdom , no. 50196/99, §§ 138-39, ECHR 2005-II; and Giuliani and Gaggio v. Italy [GC], no. 23458/02, §§ 178-79, ECHR 2011; see also the concurring opinion of Judge Pinto de Albuquerque in Trévalec v. Belgium , no. 30812/07, 14 June 2011).

Under this approach, national criminal law on putative self-defence is compliant with Article 2 if it provides for two cumulative conditions for exemption from criminal liability: a subjective one (an honest belief which subsequently turns out to be mistaken or, in other words, actual error as to factual circumstances) and an objective one (existence of good reasons for which the belief is perceived to be valid at the time or, in other words, the existence of objective grounds justifying the error). Acts committed in putative self-defence may be exempted from criminal liability if these two conditions are met jointly. However, in the instant case the majority seem to reinterpret the existing case-law by putting the emphasis on the subjective element and by diminishing the importance of the objective element. In our view, such an approach is not acceptable. It puts citizens ’ lives at risk in the context of police operations because acts committed by the police in putative self-defence as a result of gross negligence may become immune from criminal liability.

Furthermore, effective protection of the right to life under Article 2 of the Convention requires also that the substantive criminal law should ensure protection against gross negligence in the preparation and carrying out of police operations in which force is used.

6. The test applicable in English law for justified putative self-defence is a subjective one: “Did the officer honestly and genuinely believe that it was necessary for him to use force in defence of himself and/or others?” (see paragraph 249 of the present judgment). Therefore, the investigation in the instant case had to answer the question whether the police officers involved honestly and genuinely believed that Mr de Menezes was about to detonate a bomb. However, the crucial question which should have been investigated and answered in the instant case was whether the police officers ’ belief that a bomb was about to be detonated was justified in the circumstances. The investigation should have established whether the error of each officer involved, including those who directed the whole operation, was justified. Furthermore, the reasonableness of this belief should have been assessed in the context of the police ’ s duty to exercise the utmost care in preparing operations which may potentially entail the use of lethal force. Because of the content of the relevant substantive law, in the circumstances of the instant case the investigation did not focus on these crucial questions. Therefore, in the circumstances of the case, the use of force by the police officers concerned was not adequately investigated and the investigation was not able to lead to the punishment of those involved in using such force. More generally, under English law the investigation will not be adequate and will not always be able to lead to punishment in cases where police officers use lethal force in putative self-defence.

7. We also would like to draw attention to another important factual element in the instant case. The tragic events of the case took place within the context of a pre-planned police operation. It was the duty of the police to devise a realistic plan of action which made it possible to arrest the suspect without using lethal force. It appears that Mr de Menezes could and should have been arrested by the police just after leaving his home. It was the fact that the police officers waited until he entered the underground which caused the situation entailing a putative threat to the lives of a large number of people. In other words, the putative danger arose because of the delay in the reaction by the police. This factor is also of primary importance for establishing personal criminal liability on the part of the individuals involved. Even assuming that Mr de Menezes really was carrying a bomb, the delayed reaction of the police officers could not be considered absolutely necessary, because it appears that the suspect could have been apprehended much earlier. In our view, this aspect of the case has likewise not been properly investigated for the purpose of establishing criminal liability on the part of the individuals involved.

8. We note that in the instant case criminal proceedings were instituted against the police service. Criminal proceedings against legal entities may be helpful for establishing the facts. However, the Convention requires that criminal law should provide for the punishment of individuals and that an investigation should be able to lead to such punishment. Under the Convention, criminal liability of legal entities can never replace criminal liability of individuals. In the instant case, the criminal liability of the police service as such is not sufficient to satisfy the Convention criteria. Furthermore, gross negligence on the part of a legal entity always stems from the misconduct of specific individuals. It is difficult to understand that, in the instant case, the persons responsible for the negligence could not be prosecuted under English law.

9. In assessing the overall effectiveness of the investigation, regard should be had in our opinion to some important mistakes committed by the investigators at the very beginning. The IPCC expressed its concern regarding the delay in handing the scene and the investigation to it, and regarding the fact that Charlie 2 and Charlie 12 had been allowed to return to their own base, refresh themselves, confer and write up their notes together (see paragraph 69 of the present judgment). These mistakes might have affected the subsequent stages of the investigation.

It is worth recollecting here that the Court made the following assessment in Makbule Kaymaz v. Turkey (no. 651/10, § 141, 25 February 2014; translation from original French).

“The Court observes at the outset that ... the police officers implicated in the incident were not interviewed by the public prosecutor until 4 December 2004, more than ten days after the events. Furthermore, they were not kept apart after the incident and were called to give evidence in the context of the administrative investigation before the prosecuting authorities became involved. In this connection, the Court reiterates that in Bektaş and Özalp (cited above, § 65, seven days after the incident) and Ramsahai and Others (cited above, § 330, three days after the incident) it held that such delays not only created an appearance of collusion between the judicial authorities and the police, but could also lead the victims ’ relatives – and the public in general – to believe that members of the security forces operated in a vacuum and thus were not accountable to the judicial authorities for their actions. In the instant case, although there is no indication that the police officers in question colluded with each other or with their colleagues from the Mardin police, the mere fact that appropriate steps were not taken to reduce the risk of such collusion amounts to a significant shortcoming in the adequacy of the investigation (see Ramsahai and Others , cited above, § 330).”

10. According to the established case-law of the Court, an investigation carried out under Article 2 of the Convention should be prompt. This criterion has not been fulfilled in the instant case. The United Nations Human Rights Committee stated the following in its Concluding Observations, issued on 30 July 2008, on the report submitted by the United Kingdom under Article 40 of the International Covenant on Civil and Political Rights.

“10. The Committee is concerned at the slowness of the proceedings designed to establish responsibility for the killing of Jean Charles de Menezes and at the circumstances under which he was shot by police at Stockwell underground railway station (art.6).

The State party should ensure that the findings of the coroner ’ s inquest, due to begin in September 2008, are followed up vigorously, including on questions of individual responsibility, intelligence failures and police training. ” (UN Doc. CCPR/C/GBR/CO/6, paragraph 10, emphasis in the original.)

Many years elapsed after the events before such an investigation started. We cannot agree with the assessment of the majority that the criterion of promptness has been fulfilled in the instant case.

11. The applicant complained about the test for prosecution in cases of putative self-defence. Under English law, a prosecution will be brought only if a conviction is “more likely than not” (see paragraphs 164 and 265 of the present judgment). The majority refer in the reasoning to an interesting comparative-law report on this issue (see paragraphs 176 and 269 of the present judgment). We note in this connection that the analysis of comparative-law data leads to the conclusion that the test applied under English law for prosecution is clearly more stringent than in other States Parties to the Convention. Such a stringent test may prevent the prosecution and conviction of a person who has committed an offence if the prospects of success are not correctly assessed by the prosecutor. There is a serious risk that borderline cases will escape independent judicial assessment. As a result, certain acts involving excessive use of force by the police may be covered by a de facto immunity from prosecution. In our view, for the sake of efficient protection of the right to life, if there are serious doubts concerning the legitimacy of lethal force used by the police in actual or putative self-defence, the final decision on the question of criminal liability should be left to the courts.

12. We agree with the majority that in the instant case there was indeed an investigation which clarified many relevant aspects of the factual circumstances and triggered important reforms in the police. However, in our view, the combination of the different factors mentioned above led to a situation in which the death of an innocent person was not properly investigated in compliance with the Convention standards. The investigation carried out was not capable of leading to the establishment of individual criminal liability as required by the Convention.

13. Finally, we would like to note briefly that the majority considered that the complaint concerning the alleged violation of Article 13 of the Convention read together with Articles 2 and/or 3 was manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. Judges KarakaÅŸ and Dedov voted with the majority on this point. Judge Wojtyczek considers that the reasoning on this issue is not persuasive. In his view, this part of the complaint should have been communicated to the parties and examined by the Court.