DISSENTING OPINION OF JUDGE LÓPEZ GUERRA

1. I disagree with the Grand Chamber judgment. I consider that in this case the United Kingdom authorities did not comply with the procedural requirement deriving from Article 2 of the Convention to conduct an adequate investigation into the responsibility of the State agents involved in the killing of Mr Jean Charles de Menezes.

The starting-point and basis for my disagreement with the Grand Chamber judgment is that no individual responsibility was derived from the established fact, acknowledged by the United Kingdom agencies, that there were very serious deficiencies in all aspects of the police operation resulting in Mr de Menezes ’ death.

The facts are adequately stated in the judgment, but I consider it essential to note several central aspects.

2. Suspects of previous bombings in the city of London were thought to be living in an apartment at 21 Scotia Road in London. In order to identify and arrest them safely, a strategy was devised consisting in following the persons leaving those premises in order to challenge and stop them. The officers in charge of the operation were to be supported by a group of highly trained special firearms officers (SFOs).

In this case, the entire operation went wrong. When Mr de Menezes (a Brazilian national living at 17 Scotia Road, with no connection to the bombings) left his apartment, the support unit from the Metropolitan Police Specialist Crime and Operations Branch (SO19) had not yet arrived. As a result, Mr de Menezes was not stopped. He was followed for over half an hour from Scotia Road to Stockwell underground station. The facts of the case indicate that during that time the surveillance team had not identified Mr de Menezes as a terrorist suspect. At Stockwell station, while in a stationary underground train, two members of the SO19 team shot him several times and killed him.

3. The deficiencies of the operation were extensively stated in a report by the Independent Police Complaints Commission (IPCC). The report concluded (see paragraph 66 of the present judgment) that in the course of the investigations grave concerns had been raised regarding the effectiveness of the police response, identifying a number of failings related to the different phases of the operation resulting in Mr de Menezes ’ death.

4. However, despite this detailed and extensive report, no individual responsibility for his death was ever established. This is particularly surprising, given that institutional criminal responsibility for Mr de Menezes ’ death was found in a court decision declaring that the Office of the Commissioner of the Police of the Metropolis (“the OCPM”) had contravened sections 3 and 33 of the Health and Safety at Work etc. Act 1974, for having exposed third parties to risks to their health and safety. Since the charges were directed against the OCPM as an institution, no responsibility was determined in those proceedings with respect to individuals.

5. Despite this finding of severe organisational deficiencies, other decisions provided a blanket exemption from any individual responsibility. The IPCC decided not to pursue disciplinary action against any of the eleven frontline or surveillance officers involved in the operation (see paragraphs 74 and 135 of the present judgment). Moreover, the IPCC did not issue any recommendation for the senior officers involved in the operation to face disciplinary proceedings.

All the individuals participating in the operation resulting in Mr de Menezes ’ death were not only free of any disciplinary liability; they were likewise exempt from criminal prosecution. On 17 July 2006 the Crown Prosecution Service (“the CPS”) decided that no individual was to be prosecuted in relation to the death of Mr de Menezes. That decision was confirmed by the Director of Public Prosecutions (“the DPP”) on 8 April 2009 (see paragraph 133 of the present judgment), since it deemed there was insufficient evidence to prosecute any individual.

6. It is difficult to understand how it is possible to establish that an institution (the OCPM) was criminally responsible (as adjudicated in a court of law) and, in spite of that, to exclude (as a consequence of the decisions of the IPCC and the CPS) all disciplinary liability and to preclude any effective investigation into the criminal responsibility of individual members of that institution.

7. In the light of the circumstances of this case, there is no justification for the United Kingdom ’ s failure to comply with its obligations deriving from the procedural dimension of Article 2 of the Convention, as consistently established in the Court ’ s case-law – that is, the obligation to conduct an effective investigation to establish the circumstances leading to intentional loss of life and to determine the possible punishment for those responsible for the death. The IPCC ’ s report acknowledging serious deficiencies in the police operation and the judgment finding the OCPM criminally responsible clearly provided a reasonable basis for investigating possible individual responsibilities for those organisational deficiencies, since organisations do not act independently of their members.

8. It cannot be concluded that the United Kingdom ’ s positive obligation was met merely because the authorities in charge of the initial investigation (the IPCC) and those that decided not to prosecute (the CPS) were deemed to be independent authorities for the purposes of Article 2 of the Convention (see paragraph 262 of the present judgment). Independence in itself is not enough to guarantee the existence of an effective investigation. In this case, what is missing are all of the other guarantees deriving from judicial proceedings in which evidence is publicly examined, with the intervention of all the affected parties, so that responsibilities may be ascertained accordingly. This was what the applicant sought when she asked the DPP to review the previous decision not to prosecute: to ensure the conduct of judicial proceedings with all the appropriate procedural guarantees, which go further than the independence of an administrative investigating body.

9. In other respects, the existence of a practice authorising the prosecution service to decline to bring criminal proceedings on the basis of the probability of achieving a guilty verdict (the so-called Manning test) is not in itself a sufficient reason to fail to determine responsibility, in judicial proceedings, for an intentional death. The question for our Court was not to rule whether the Manning test conformed to Convention requirements in the abstract, but rather whether the application of that test in this specific case represented a failure to comply with the procedural obligations under Article 2 of the Convention – that is, whether the CPS ’ s decision to refrain from bringing criminal proceedings against the individuals involved in the operation disregarded those obligations.

10. The Grand Chamber judgment accepts the reasonableness of the Manning test; but the Grand Chamber essentially takes into account its application to the two SFOs (Charlie 2 and Charlie 12) who killed Mr de Menezes. The responsibility of those two officers is not, however, the only or even the main question in the case, which relates to the responsibilities of all those involved in the police operation and the deficiencies in its planning and execution. Even admitting that there was a subjective perception of grave danger, justifying an honest belief in a situation of legitimate self-defence on the part of the two SFOs, the fundamental question remains concerning the responsibility of the other participants in the operation – that is, whether the SFOs ’ fatal subjective perception was the result of the previous actions or omissions of other individuals, and of the erroneous or deficient instructions they had received as a result of the mismanagement of a serious incident in which human lives were at stake, and in which the SFOs ’ briefing had indicated from the outset that “a critical shot could be taken” (see paragraph 26 of the present judgment).

11. In such circumstances, involving multiple subjects and actions at different levels, entailing considerable risk for human lives and findings of serious deficiencies, a complete investigation of possible individual responsibilities for those deficiencies should not have been precluded on the basis of a conjectural test applicable only to certain aspects of the police operation. In practice, the lack of such an investigation, with all the appropriate guarantees of adversarial and public proceedings, effectively granted immunity to those responsible for the serious and acknowledged errors resulting in Mr de Menezes ’ death.