JOINT CONCURRING OPINION OF JUDGES COSTA, Sir Nicolas BRATZA, LORENZEN AND VAJIĆ

While we share the view of the majority of the Court that there has been a violation of both the substantive and procedural aspects of Article 2 in the present case, we cannot fully subscribe to the Court ’ s reasoning as to the former.

That reasoning is founded principally on two factors – the inadequacy of the general legal framework in Greece at the time of the incident regulating the use of firearms by police officers and the chaotic way in which firearms were in the event used by the police during the course of the chase and eventual wounding of the applicant. In the view of the Court, the two factors are closely linked, “the autonomy of action and unconsidered initiatives” of the police officers concerned being, in the view of the majority, an unavoidable consequence of the lack of clear guidelines and criteria governing the use of force in peacetime.

We can readily agree that the way in which the operation was in fact carried out by the Athens police gave rise to a breach of the obligation to protect life within the meaning of the first sentence of Article 2. As is established by the case-law of the Court, the first sentence enjoins the State not only to refrain from the intentional and unlawful taking of life but also to take appropriate steps to safeguard the life of those within its jurisdiction. This involves a primary duty on the part of the State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. However, it also requires in our view that recourse to potentially lethal force by agents of the State should be regulated and controlled in such a way as to minimise to the greatest extent p ossible the risk to human life.

We accept that in the present case the authorities were faced with what appeared to be an emergency situation and one which developed with great rapidity and without any opportunity for pre-planning. We accept, too, that the obligation imposed by Article 2 should not be interpreted in such a way as to impose an impossible burden on the authorities and that the actions of those authorities should not be evaluated with the wisdom of hindsight. Nevertheless, we consider that the controls exercised by the authorities over the operation to stop and detain the applicant were manifestly inadequate. Like the majority of the Court, we are particularly struck by the number of police officers, armed with a variety of weapons, who took part in the chase without any effective centralised control over their actions or any clear chain of command. These included not only twenty-nine identified officers but an unquantified number of additional officers who participated in the chase o n their own initiative and without instructions and who left the scene w ithout identifying themselves and without handing in their weapons. Mo reover, it is apparent that at least one of these unidentified officers opened fire on the car, the Athens First-Instance Criminal Court finding that a bullet recovered from the body of the applicant and a bullet found inside the car were unrelated to any of the thirty-three weapons which had been surrendered for exam ination following the incident.

In our view, the undisciplined and uncontrolled manner in which the operation was c onducted , which carried with it a serious risk of fatal injury to the applicant, is in itself sufficient to give rise to the finding of a breach of the obligation to protect life under Article 2.

Where we part company with the majority is as to their further reliance on the claimed inadequacy of the legislative framework in Greece at the relevant time, governing the use of firearms. The majority emphasise that the applicable legislation , which dated from the occupation of Greece in the Second World War , listed a wide range of situations in which a police officer could use firearms without being liable for the consequences. While noting that these provisions had been qualified by the p residential decree of 1991, which authorised the use of firearms “only when absolutely necessary and when all less extreme methods have been exhausted”, the majority have found this “somewhat slender legal framework” to be insufficient to provide the level of protection “by law” of the right to life that is required in present-day democratic societies in Europe.

Unlike the majority, we have found no clear evidence to suggest that the lack of control over the operation in the present case was attributable to any gap or deficiency in the level of protection provided by the relevant Greek law. In these circumstances, while we welcome the improvements in the law governing the carrying and use of firearms by police officers which were introduced in Greece in July 2003 (see paragraph 27 of the judgment), we have not found it to be either necessary or appropriate to examine in the abstract the compatibility with Article 2 of the legislative provisions in force at the relevant time (see McCann and Others v. the United Kingdom , judgment of 27 September 1995, Series A no. 324, p . 47, § 153) or to base our conclusion on any deficiency in those provisions.

PARTLY DISSENTING OPINION OF JUDGE WILDHABER JOINED BY JUDGE S KOVLER [1] AND MULARONI

To my regret I am unable to subscribe to the finding of a substantive violation of Article 2 in the instant case.

This case is about a dangerous police chase in the centre of Athens . Dangerous, because the police shot at the applicant, but dangerous also because, before the police opened fire, the applicant had broken through several police roadblocks with his car, collided with several other vehicles, injured two drivers and caused a cervical hernia in one of them in the process (see paragraphs 11, 19, 21 and 64 of the judgment ). It does not therefore necessarily help simply to state that the right to life is fundamental ( see paragraph 56). The problem is: whose life? And how should the different lives at stake be protected?

Our Court ’ s case-law asserts that a State may have a positive obligation to protect the life of individuals from third parties ( see paragraph 50). Concretely, this may mean that the police had to protect the lives of pedestrians, car drivers and their colleagues from the applicant. The Court ’ s case-law states at the same time that , in exceptional circumstances, physical ill-treatment by State agents that does not result in death may disclose a violation of Article 2 ( see paragraphs 43-44 and 51-52 of the judgment ; see also Berktay v. Turkey , no . 22493/93, 1 March 2001, and İ lhan v. Turkey [GC], no. 22277/93, § 76, ECHR 2000 - VII). Concretely, this may mean that the use of force by the police against the applicant could amount to a violation of Article 2, notwithstanding the fact that it was not in the end lethal.

If these two strands of case-law are over - extended, they may ultimately overlap and come into conflict. The State might then paradoxically violate both its positive duty to protect the life of individuals from third parties and its obligation to curb the use of force by the police. Obviously, such an overlap would be unfortunate. In extreme cases it can place the competent authorities in an impossible situation. In between there must be room for the unpredictability of life and the subsidiarity of the Convention system. Such difficult decisions, taken in the heat of the action, should properly be reviewed by the national courts and our Court should only depart from such findings with reluctance.

In the present case the Court ’ s majority relies on some of the findings of the Greek court, which indeed appear in no way arbitrary ( see paragraphs 19 and 66 of the judgment ). It finds that the police could reasonably have considered that there was a need to resort to the use of their weapons. I see no grounds for finding otherwise.

However, the Court ’ s majority then nevertheless concludes that Article 2 was violated. It declares itself struck by the “chaotic way” in which the police operation was carried out ( see paragraph 67) and explains this by the “absence of a clear chain of command” ( paragraph 68), the lack of “proper training and instructions” ( paragraph 70) and the “obsolete and incomplete law” regulating police conduct ( paragraph 70; see also paragraphs 25, 62, and 71).

The file of this case does not, in my view, establish the absence of a clear chain of command. On the contrary, several policemen referred to orders given to them and to instructions from the control centre ( see paragraph 17 , point 2 ( Mr Netis) , point 6 ( Mr Nt inas) , point 7 (Mr Kiriazis) , paragraph 18 , point 1 (Mr Ventouris) , point 2 (Mr Nomikos) , point 3 (Mr Xilogiannis) , point 4 (Mr Davarias) ) , and the Athens First-Instance Criminal Court similarly accepts the existence of a chain of command ( see paragraph 19). There is also reference in the file to the training that the police force receives ( see paragraph 18 , point 1 (Mr Ventouris) ). If the Court ’ s majority did not accept this testimony or if it relied on extraneous evidence, it should have explained why.

It is accepted that several off-duty policemen must have joined the chase and must have used their weapons. The subsequent administrative investigation did not establish adequately what had happened in that respect. That is why our Court found a procedural violation of Article 2. I joined the Court ’ s majority on this point, which reflects well-established case-law. However, domestic law did not prohibit off-duty members of the police force from joining a police chase in an exceptional situation , and I see no reason why such a participation should a priori be considered to constitute a substantive violation of Article 2.

As I see it, the strongest argument advanced by the Court ’ s majority is the over - broad discretion which Law no. 29/1943 left to the police. However, at the time of the police chase in the instant case (13 September 1995), Law no. 29/1943 had already been superseded by Article 133 of Presidential Decree no. 141/1991, which authorised the use of firearms in the situations set forth in Law no. 29/1943 “only when absolutely necessary and when all less extreme methods have been exhausted”. This is admittedly not the same as an exhaustive modern police law, but it lays down an essential standard for the use of force by the police in an absolutely clear fashion.

I cannot agree that the Court should find a substantive violation of Article 2 in a case that stems from the irresponsible and dangerous behaviour of the applicant; where a national criminal court has looked carefully at the relevant facts and decided that the use of force by the police was justified in order to protect the life of third persons; where our Court itself accepts the national court ’ s view that the use of weapons by the police was justifiable; where the applicant suffered injuries (as did some of his victims), but did not lose his life; and where the domestic law restricts the use of police firearms to situations of absolute necessity.

Given my views on this case, I am opposed to the award of a substantial sum to the applicant in respect of non-pecuniary damage. The finding of a violation should have sufficed in terms of just satisfaction.