CONCURRING OPINION OF JUDGE MARUSTE

While I am in agreement with the majority in finding a violation of Article 2 in its substantial limb, I have slightly different view in respect of the reasoning.

Briefly, the majority seems to depart from the presumption that the special police forces where respons ible for the lethal shot and Mr Vachkov ’ s death. In general it is so, but for me this conclusion needs to be more nuanced. My understanding is that at the final stage of operation the police failed to protect human life and that being so, the State has violated its positive obligation under Article 2.

The operation had clearly two stages – first, the attempt to arrest and ensuing chase and second, the localisation of the fugitive in a residential building and his capture. Allegedly the first stage was planned by the polic e. But the second stage probably went outside of the scope of th e previously planned operation.

There is no doubt that Mr Vachkov acted highly dangerously both vis ‑ Ã ‑ vis the police and the public in general during the first stage. It is hard to see something more dangerous than shooting in the city streets using a machine gun in the course of escaping using a car. Consequently, the police had all good grounds to believe that the fugitive was extremely dangerous and had to react accordingly to eliminate that danger decisively and quickl y, even by using lethal force.

But after having localised the fugitive and having sealed the whole area off, it was clear that Mr Vachkov was under police control and that he was not in any position to flee or to pose a threat to other people. In such circumstances another scenario stemming from the positive obligation of State authorities to save and protect human life should have been applied in order to make the fugitive surrender. Apparently, the police were not adequately prepared for that or they neglected that duty.

Because of the procedural failure of the State to conduct a complete and thorough investigation of the incident we do not know the exact reasons of the death – if it was suicide or a lethal shot from the police force. If it was suicide the positive obligation covers also the duty of police to take all necessary means to avoid autoagression of the wanted and desperate person which was under their control. If it was a lethal shot by the police then the “absolutely necessary” and proportionality criteria applies and here I am in agreement with the majority reasoning. Be that as it may, in both cases the State authorities to my mind failed in their duty to protect human life.