DISSENTING OPINION OF JUDGE TÃœRMEN

I regret that I am unable to agree with the majority in finding a violation of Article 3 in its substantive aspect. The facts as contained in the judgment are as follows:

The police were called upon to attend an incident without any preparation. The incident occurred late in the evening in a residential area where gunshots were heard. According to the report prepared by the police, a group of masked persons was writing on walls and tampering with cars. The applicant was in possession of a gun which, according to experts, “was no different from a real gun in terms of both size and mechanical structure.” They also said that it was “impossible to distinguish it, at first glance, from a real gun, even for those who were familiar with guns” (paragraph 10). After a long chase of one hour, the applicant and his friends were cornered and, despite being ordered to surrender, the applicant continued to shoot and the policemen returned the fire, which resulted in a fracture of the applicant ' s fibula.

To determine whether the force used was “proportionate” several elements have to be taken into consideration.

First of all, the police were called upon to conduct a random operation without any preparation. Therefore, it seems unreasonable to consider, as the majority does in paragraph 25, that, with the lapse of time, the police could have properly evaluated the situation and that they should or could have organised and coordinated their efforts accordingly. Such an assertion fails to take into account the practical realities of police work and imposes a disproportionate burden on the authorities.

Secondly , the authorities found that the applicant was in possession of a cap gun that was not distinguishable from a real gun. According to official police records the applicant produced his gun and shot at the policemen. In such circumstances the police had no choice but to return fire in self-defence since they could not have known at that time that the applicant ' s gun was not real. In addition, the majority gave undue consideration to the fact that the bullet trajectory was established as having entered from the back of the leg and exited from the front. The bullet trajectory does not in my opinion disprove the fact that the applicant was shooting at the policemen before he was injured. The majority ' s consideration under this head is therefore speculative.

Thirdly, the majority disregarded the fact that the applicant ' s version of facts both before the domestic authorities and the Court lacked coherence and credibility. For example the applicant denied knowing the other suspects and writing graffiti, whereas all the co ‑ accused had admitted that they knew each other and had written graffiti on the walls together with the applicant. In this connection, I find it difficult to believe, in the absence of a plausible explanation by the applicant, that the police officers shot the applicant after having already apprehended him and made him lie down.

Finally, taking into account the fact that the only injury sustained by the applicant was a single gun shot to a non-vital organ and that neither he nor the other suspects had sustained any other injuries, I accept the Government ' s argument that the force used against the applicant in this case was made necessary by his own conduct. The foregoing circumstances count heavily against the applicant, with the result that, in my view, the Government ' s burden to prove that the use of force was not excessive in this case was less stringent (see, mutatis mutandis , Ber liński v. Poland , nos. 27715/95 and 30209/96, § 64 , 20 June 2002 ).

However, it seems that the majority has accepted facts relating to the investigation, such as the lack of information regarding the number of shots fired by each side or whether any empty cartridges were found in the area, as the basis for finding a violation of the substantive aspect of Article 3.

It would have been more in line with the Court ' s case-law to examine all these issues that are closely linked to the investigation under the procedural aspect of Article 3.

I am therefore of the opinion that there has been no violation of Article 3 in its substantive aspect.