PARTLY D ISSENTING OPINION OF JUDGE TSATSA-NIKOLOVSKA JOINED BY JUDGE STRÁŽNICK Á [2]

I regret that I am unable to share the opinion of the majority of the Court regarding its finding of a violation of Article 2 in respect of the State ’ s obligation to protect the applicant ’ s right to life by law and that no separate issue arises under Article 3 and Article 13 of the Convention.

I consider that , given the actual circumstances of the incident which put the applicant ’ s life at risk , it is impossible to conclude beyond reasonable doubt that there has been a violation of Article 2 in substance.

The case- law of the Court establishes that it is only in exceptional circumstances that physical ill- treatment by State agents which does not result in death may disclose a violation of Article 2 of the Convention.

I accept that there are exceptional circumstances in the present case which bring Article 2 into play , because the applicant ’ s life was put at risk by the lethal means used by the police officers to stop his car and arrest him, but in the circumstances of the case I have some doubts that there are enough well - established facts to conclude beyond reasonable doubt that there has been a violation of Article 2 in substance.

I consider that in this case it is necessary to have a clear picture of the incident for the purpose of assessing whether there has been a possible violation of Article 2 in substance .

In the present case , I think that the Court should deal with the question of the police officers ’ conduct during the incident, namely their identification as participants in the chase, their use of firearms from beginning to end, including the actions of the operational units of patrol cars and motorcycles, the actions of the control c entre, their instructions and coordination . It should also have regard to the implementation in practi c e of the national and international principles of legality , proportionality and necessity in the case , the outcome of the incident, all the applicant ’ s injuries and his conduct during the incident in order to assess and evaluate whether there were irregularit ies and arbitrariness in the action of the police or an abuse of force. The Court should have relevant evidence and proof in this field .

It is true that the national law quoted in the judgment is the old one and that some provisions gave the police wide scope in the use of firearms , such as the use of force to enforce the laws, decrees and decision s of the relevant authorities or to disperse public gathering s or suppress mutinies , but this is not in issue in the instant case. Generally speaking , this fact does not mean that the police can use force without control . This is particularly true in this case, where there is no evidence justifying such use of force . On the other hand, that law was amended by the provision s authorising the use of

firearms only when absolutely necessary and when all less extreme methods have been exhausted. Furthermore, all the relevant international principl e s in the international documents quoted in the judgment have been recognised by the Greek authorit ies . C riminal proceedings for causing serious bodily harm and for the unauthorised use of weapons were instituted against seven police officers, who were later acquitted, on the basis of the result of an administrative investigation which was carried out in respect of twenty-nine police officers , and it is difficult for me to accept that it would be possible for a police officer to use firearms without being liable for the consequences .

I must say that I do not have a clear picture of the incident because there is insufficient factual evidence owing to the inadequate, in complete and in effective investigation and information concerning police pra ctice regarding the use of firearms . It is generally for the national authority to establish the facts . The Court made efforts to do this by itself but , in my opinion , unfortunately did so unsuccessfully in some respects.

In these circumstances, I consider that it is impossible to make a proper evaluation and conclude beyond reasonable doubt that there has been a violation of Article 2 in substance as a result of the incident. I think that in such a situation it is not necessary to consider the applicant ’ s complain t under Article 2 of the Convention regarding the alleged lack of protection by national law of the right to life.

On the other hand, I think that there are elements which enable an assessment to be made under Article 3 of the Convention of the police officers ’ conduct during the incident.

The Court has reiterate d in Tekin v. Turkey , ([GC], no. 22277/93, ECHR 2000 -VII) and Ä°lhan v. Turkey (judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV) that ill - treatment must attain a minimum level of severity and that this assessment depends on all the circumstances of the case, namely the duration of the treatment, its physical or moral effects and the state of health of the victim.

In the instant case , there are some in disputable circumstances. The applicant had driven through a red traffic light and was chased by thirty-three police officers in car s and on motorcycles , shooting from guns , revolvers and submachin e guns , who used force to stop and arrest him. There was no intention or order given to kill him , and no one contests that the applicant felt fear and panic. The police lost him once during the chase. The applicant stopped at the entrance of a petrol station of his own free will, did not offer any resistance and did not get out of the car. The shots were numerous and the applicant was seriously injured. He underwent three operations , his health deteriorated considerably after the incident and he is now severely disabled.

A ll the points that I have mentioned above provide elements that enable an assessment to be made of the level of severity , that is, the duration of the treatment, the physical and moral effects and the state of health of the victim. This leads me to conclude that there is a separate issue in this case to be considered under Article 3 of the Convention, especially as I consider that there are no elements on which this case can be assessed under Article 2 in substance or a conclusion reached beyond reasonable doubt under that provision .

The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The remedy required by Article 13 must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see Kaya v. Turkey , judgment of 19 February 1998, Reports 1998 - I, pp. 329- 30, § 106; Paul and Audrey Edwards v. the United Kingdom , no. 46477/99, § 96, ECHR 2002 - II; Gül v. Turkey , no. 22676/93, § 100, 14 December 2000; İlhan , cited above ; and McKerr v. the United Kingdom , no. 28883/95, § 107, ECHR 2001 - III) .

Given the fundamental importance of the right to life, Article 13 requires , in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible, and including effective access for the complainant to the investigati on procedure (see Kaya , cited above, p. 330, § 107, and Gül , cited above, § 100) .

On the basis of the circumstances in the present case , in which there has been a finding of a violation of Article 2 in respect of the respondent S tate ’ s obligation to protect the applicant ’ s right to life by law and to conduct an effective investigation into the circumstances of the incident which put the applicant ’ s life at risk, the authorit ies should make available to the victim a mechanism for establishing any liability of S tate agents or bodies for acts or omission s involving a breach of their rights protected by the Convention. Furthermore, in the case of a breach of Articles 2 and 3 , which rank as the most fundamental provisions of the Convention, compensation for the non-pecuniary damage flowing from the breach should , in principle, be available as part of the range of redress (see Paul and Audrey Edwards , cited above ).

The applicant complain ed that , before a civil case for compensation could be brought, the responsibility of the perpetrators ha d to be proved in order to establish liability on the part of the S tate. As a result of the acquittal of the accused , the applicant could not obtain compensation for the non-pecuniary damage resulting from his injuries . He has no right of appeal against the above - mentioned decision acquitting the police officers . The applicant argue d that , owing to the lack of an effective investigation , h e ha d also been deprived of an effective remedy regarding the breach of Article 13 of the Convention.

The G overnment asserted that a remedy was available at domestic level, but did not submit evidence demonstrating the effectiveness of the availab le remedies for compensation in practice.

In the instant case , the national court acquitted the seven police officers o n both criminal charges brought against them, first ly on the count of causing serious bodily harm and secondly on the count of unauthorised use of weapons. The court found that the accused police officers were not the ones who had injured the applicant and that the y ha d used their weapons to stop the car , the driver of which they considered to be dangerous. An administrative investigation was carried out by the police in respect of the twenty-nine police officers who had taken part in the chase, but the applicant had no effective access to it . Following that administrative investigation , the public prosecutor instituted criminal proceeding s against only seven police officers , who were later acquitted. The applicant was accused of committing offences and sentenced to forty days ’ imprisonment (see paragraphs 21-22 of the judgment ) .

In these circumstances , it is questionable whether the applicant could prove the responsibility of the perpetrators if he were to bring a civil action for appropriate compensation.

The mere fact that the applicant was able to join the proceeding s as a civil party is insufficient for the purpose s of Article 13. Moreover, the fact that he was unsuccessful is a further element proving that the effectiveness of this remedy is doubtful .

The question now arises whether it would be enough for the purpose s of Article 13 to deal only with the question of the identification of all policemen who took part in the chase and who injured the applicant.

The answer for me would be “no” because another question arises in these circumstances , which is whether the authorit ies make available to the applicant , as a real victim , an effective mechanism for establishing the civil liability of the S tate agents or bodies – in this case the police officers – for the acts or omission s involving the breach of his rights under the Convention. I have in mind the majori ty ’ s finding that the State did not fulfil its obligation to protect the applicant ’ s right to life by law .

M oreover, a right to appropriate compensation as an effective remedy for redress is relevant in a situation where no effective investigation for the purpose o f Article 2 was carried out, bearing in mind that misconduct , omissions, delays and all errors made during an investigation carried out by the police, especially when the police officers are involved in the incident, could raise proble ms in the criminal proce e d ings when establishing the relevant facts and possible redress later.

That is why I consider that in the instant case a separate issue arises under Article 13 of the Convention .

[1] 1. Judge Kovler does not sha r e the conclusions in the opinion as regards Article 41 of the Conventi o n since he voted with the majority on that issue.

[2] 1. Judge Str áž nick á does not share the conclusions in the opinion as regards Article 13 of the Convention since she voted with the majority on that issue.