PARTLY CONCURRING, partly dissenting OPINION OF JUDGE MIFSUD BONNICI

1 . I form part of the majority on all the points decided except for the one concerning the plea of non-exhaustion of domestic remedies which was dismissed.

2 . Article 26 of the Convention provides:

“The Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision is taken.”

3 . In the present case, a commission of inquiry was set up by the Government of Cyprus to examine and report on all the circumstances connected with the tragic deaths of Lefteris Andronicou and Elsie Constantinou.

4 . In the majority, if not all, of the Contracting States, “abnormal” causes of death open up two possible actions in law: a criminal action, which, however, is usually invested in a public authority and may therefore depend completely on the State’s appraisal of the facts; and a civil action by those persons who allege that they have suffered damage as a consequence of that “abnormal” death. Both types of action are directed against whoever is deemed to be responsible for the death, either through dolo or through culpa . In some States the victim is given the opportunity to make his claim for damages in the criminal action taken by the State by becoming a party to the proceedings.

5 . In the instant case, the Commission, which was the first of the Convention organs to examine the Government’s plea, rejected that plea, inter alia , on the ground that when the applicants requested the Attorney-General to institute criminal proceedings and the latter refused, they were under no further obligation to institute civil proceedings for damages and the requirement of Article 26 had therefore been satisfied.

The Commission appears to have based its finding on what the Court decided and stated in the case of A. v. France (judgment of 23 November 1993, Series A no. 227-B, p. 48, § 32):

“… an applicant who has exhausted a remedy which is apparently effective and sufficient cannot be required also to have tried others which would have been directed to the same end and would in any case not have offered a better chance of success or which are probably ineffective.”

However, it is not correct to rely on that judgment. In the A. v. France case the Court considered that, once Mrs A. had joined the criminal proceedings against the persons who had violated her right to privacy and confidentiality of her telephone communications and had presented her claim for compensation in the criminal proceedings “and pursued the said proceedings to their conclusion” (ibid., § 32), her failure to take further

actions to claim compensation could not be deemed to mean that she did not in fact exhaust as a consequence the remedy afforded by the domestic legal order.

6 . In the present case the applicants never put forward any sort of claim for damages before the Cypriot courts. All they did was request the Attorney-General to institute criminal proceedings against the police officers who took part in the unfortunate operation. When the Attorney-General issued a nolle prosequi , they immediately applied to the Commission. The Cypriot courts never had a chance to go into the matter and to examine whether or not the applicants had any right to compensation. In fact the domestic courts did not have the chance to say whether they considered some or all of the officers “civilly” if not criminally responsible, whether a case could be made out against the Government, whether the first two applicants, the father and sister of Lefteris Andronicou, had a right to claim damages because of his violent death in view of the fact that his heirs in law, his estranged wife and his children, did in fact institute proceedings and obtain compensation.

Clearly, domestic law should have been given the opportunity to give answers to all these questions.

7 . The majority of the Court, although they did not follow too closely the opinion of the Commission, nevertheless dismissed, like the Commission, the Government’s objection. In essence, at paragraph 161 of the judgment the majority stated that, although the conclusions of the commission of inquiry

“were not binding on a domestic civil court, they were likely in practice to remove any reasonable prospects of success which a civil claim for damages may have offered the applicants. Accordingly, the applicants’ decision not to accept the Attorney-General’s ex gratia offer of legal aid and to institute civil proceedings on the strength of that offer could be considered to have been justified in the circumstances”.

8 . In my opinion the majority is here indulging in pure speculation as to what the particular domestic court would do or not do when and if it is confronted with a claim for damages by the applicants, whether made against the Government or against a particular officer or officers of the police.

9. Finally, it is to be noted that the majority later on in the judgment (paragraph 200) had this to say on the ex gratia offer of the Attorney-General:

“It is surprising that the applicants did not take up the offer immediately, given their need of financial assistance to institute proceedings and their determination to sue the authorities. It is significant in this respect that they had no hesitation in accepting the Government’s earlier offer to cover the costs and expenses incurred through their participation in the proceedings of the commission of inquiry.”

This conclusion in my opinion practically cancels the previous finding in paragraph 161 wherein the refusal of the applicants to accept the Attorney-General’s offer not only exempted them from pursuing their determination to sue the authorities in the domestic courts but that that refusal could also be considered “justified in the circumstances” (see paragraph 7 above).

PARTLY CONCURRING, partly dissenting opinion of judge jungwiert

( Translation )

I cannot concur with the majority of the Chamber inasmuch as they find that there has been no violation of Article 2 of the Convention.

A fundamental question arose in this case: was the use of force, as actually deployed, absolutely necessary?

In my opinion, the concept of “absolutely necessary” must be understood as meaning that there is no other possible course of action.

To my regret, the reasoning in the judgment does not correspond to that interpretation.

In the rescue plan and the armed intervention there was a serious and unnecessary disproportion between the means used and the situation that had to be faced.

It is regrettable that the operation, whose only objective aim was to save Elsie Constantinou’s life and arrest Lefteris Andronicou, was carried out without the necessary care and appropriate consideration for the person concerned.

Having considered the behaviour of the police special forces ( MMAD ) and especially the way in which they were commanded, for which the Government of the respondent State are fully responsible, I continue to believe that the operation was marked by a lack of organisation and appropriate equipment.

Lefteris Andronicou was hit by at least twenty-five bullets fired by automatic weapons. He collapsed after the first few shots but the officers of the MMAD continued to fire.

Using machine guns in a small confined space without proper lighting and knowing that the very person to be rescued was next to or in front of the person being aimed at, Lefteris Andronicou, seems to me more than irresponsible.

In order to achieve the desired objective, there were other readily available means. The manifest shortcomings of the organisation and management of the rescue operation in actual fact brought about the opposite of what was sought to be achieved. In my opinion, it was difficult to imagine a worse outcome of the operation: there is no doubt that Elsie Constantinou’s death was caused by the machine-gun bullet which, according to Dr M. Matsakis, penetrated the lung, liver and stomach. The question arises how a single bullet could strike the lung and stomach if Elsie Constantinou was in a vertical position. Or did the officers shoot at her again after she had collapsed like Lefteris Andronicou? In the opinion of the medical experts, Elsie Constantinou would certainly have survived if she had sustained only the injuries caused by Lefteris Andronicou’s gun.

That being so, it is difficult to take the view that the use of lethal force did not go well beyond what was “absolutely necessary” to protect the lives of Elsie Andronicou and the MMAD officers.

I consider that the argument in the judgment that is founded mainly on acceptance of the hypothesis that the action of the officers (nos. 2 and 4) was based “on an honest belief which [was] perceived, for good reasons, to be valid at the time but subsequently turn[ed] out to be mistaken” is wrong. It could be valid where there was no one in command. Accepting such reasoning would presuppose overlooking that the officers were simply carrying out the orders of their superiors. Their choice of the means to be used and the approach to adopt was already very limited once the operation  had been launched, and they may bear only a very limited responsibility.  The full responsibility rests with those who planned and directed the operation and also with those who organise and oversee police work in general.

That is a brief statement of the reasons which lead me to the same conclusion as the Commission, that is to say that the deaths of Elsie Constantinou and Lefteris Andronicou were the result of a use of force that was not absolutely necessary in defence of others from unlawful violence or in order to effect a lawful arrest, within the meaning of Article 2 § 2 (a) and (b) of the Convention.

It is for these reasons that I consider that in the instant case there has been a violation of Article 2 of the Convention.

dissenting opinion of judge pikis

There are three issues to be resolved, which merit separate consideration.

(a) Abuse of the right of petition. This refers to abuse of the process to seek relief before the European Commission and subsequently the European Court of Human Rights for violation of the rights guaranteed by the European Convention on Human Rights. Article 27 § 3 of the Convention renders inadmissible proceedings which constitute an abuse of the process before the organs of the Convention.

(b) Exhaustion of domestic remedies. Article 26 of the Convention makes exhaustion of the remedies available under domestic law a prerequisite before an aggrieved party can validly have recourse to the Convention organs and before the latter can take cognisance of the case. The process established by the Convention is remedial, intended to ensure that breaches of the Convention are remedied and, if that is not feasible, that appropriate relief is provided. Only if domestic proceedings are exhausted and a breach of the rights secured by the Convention remains unredressed can a party legitimately file a petition under Article 25. Correspondingly, the obligation of a State party to answer for breaches of the Convention is confined to cases where its competent authorities, mainly but not exclusively, the judicial authorities, fail to put the breach right, including the award of satisfactory compensation. The applicant can be absolved from the duty to exhaust internal remedies only if the outcome of domestic proceedings is a foregone conclusion, either because of the ineffectiveness of the judicial system or the absence of a real prospect of success (see, inter alia , the Aksoy v. Turkey judgment of 18 December 1996, Reports of Judgments and decisions 1996-VI). Mere doubts as to the chance of success will not suffice (see Donnelly v. the United Kingdom, applications nos. 5577–5583/72, decision of 15 December 1975, Decisions and Reports (DR) 4, p. 4; McDonnell v. Ireland, application no. 15141/89, decision of 15 February 1990, DR 64, p. 203).

(c) Violation of the right to life safeguarded by Article 2 of the Convention. The right to life is all-embracing  and is to be protected at all times and in all circumstances. The only exceptions are those specified in Article 2 to which a restrictive interpretation is given in order to ensure the efficacy of the right (see, inter alia , Kathleen Stewart v. the United Kingdom, application no. 10044/82, decision of 10 July 1984 on the admissibility of the application). The recent decision of the Court in the case of McCann and Others v. the United Kingdom (judgment of 27 September 1995, Series A no. 324) puts, to my understanding, the duty of the State to protect the life of the individual on a higher pedestal than hitherto. An operation that carries with it danger to life must be planned and controlled in a way eliminating every foreseeable element of unnecessary risk to life on account of the use of force. The duty of the State when

confronting a challenge to social order involving risk to life is not discharged by confining its reaction to the use of force proportionate to the risk involved. The State has the added duty of planning as well as controlling the operation so as to limit the circumstances in which force is used and, if the use of force is unavoidable, to minimise its effects.

In addressing the issues raised for consideration the Court, although not bound by the findings of the Commission, is as a rule guided by them. The Court recalled in the McCann and Others judgment that, under the general scheme of the Convention (Articles 28 § 1 and 31), the establishment and verification of the facts are primarily a matter for the Commission. This approach reflects the fact that the Commission is par excellence the fact-finding body for violations of the Convention (see, inter alia , the Airey v. Ireland judgment of 9 October 1979, Series A no. 32). The position is different with regard to the inferences that may be drawn from the findings of the Commission. The Court is in the same position as the Commission in assessing their implications and drawing inferences therefrom.

In this case the findings of the Commission, with few exceptions of no great consequence, are accepted by the parties. The dispute centres on their effect and consequences in law. I accept the findings of the Commission and, generally, its approach to the matters in issue, subject to the following qualification: the Commission did not address and in my view failed to advert to the implications on the admissibility of the application of the finding that the applicants had an effective remedy before the Cyprus courts of which they did not avail themselves.

A. Abuse of process

It was argued on behalf of Cyprus that the proceedings are an abuse of the right of petition on account of the rejection by the applicants of an offer by the Government of Cyprus to compensate them on an ex gratia basis. The suggestion implied that the sum could be negotiated. The question raised requires us to decide whether an ex gratia offer to compensate a party injured because of a claimed breach of the Convention can be a substitute for the vindication of the right allegedly breached before a competent court or tribunal. The answer is in the negative. The process envisaged by the Convention is designed both for the ventilation of the right allegedly derogated from, the identification of breaches of the Convention and the award of consequential relief. The offer of an ex gratia payment leaves the right allegedly violated in limbo and renders the relief a benevolent act of the State. It might be otherwise if the liability of the State was acknowledged and the offer of compensation was meant to forestall judicial proceedings which the victim of the violation would be free to pursue if no agreement were reached. The Government’s objection to the admissibility of the proceedings on account of abuse of process fails.

B. Non-exhaustion of domestic remedies

In order to appreciate and evaluate the issue of non-exhaustion of domestic remedies in a proper perspective, brief reference must be made to the history of the proceedings, the identity of the applicants, the nature of the rights sought to be vindicated and the background to the case.

The applicants are (a) Andreas and Paraskevoula Andronicou, the father and sister of Lefteris Andronicou, deceased, respectively, and (b) Gregoris and Yiolanda Constantinou, the parents of Elsie Constantinou, deceased.

The applicants pursue the present proceedings in a personal, not in a representative capacity, as the administrators of the estates of Andronicou and Constantinou.

No proceedings were taken by any of the applicants to assert their rights and seek relief before the courts of Cyprus. In their application to the Commission, the failure to do so is attributed to lack of the necessary means to meet the costs of legal proceedings, thereby preventing them from having access to a civil court in Cyprus competent to determine their civil rights and obligations. Because of this impediment they were, as they claimed, unable to pursue proceedings in Cyprus. Consequently, they petitioned the Commission for relief claiming in the first place that they were denied their right of access to a court of law guaranteed by Article 6 § 1 of the Convention, a denial that opened the way for the institution of proceedings under Article 25 of the Convention.

The foundation of the applicants’ claims for relief remained obscure. Andreas and Paraskevoula Andronicou are neither heirs of Lefteris Andronicou nor representatives of his estate. The children of Lefteris Andronicou, his heirs, instituted, as it emerged, proceedings in Cyprus through the administrators of the estate of the deceased (their mother and a third party) against the State for damages for loss occasioned to them because of the death of their father. The case was settled and judgment was given in their favour against the Republic of Cyprus for a sum approved by a competent civil court as just compensation for the damage they had suffered. They were also awarded their legal costs.

Likewise, the claim of Gregoris and Yiolanda Constantinou is a personal one for damages for the loss suffered as a result of the death of Elsie Constantinou.

It is acknowledged by the applicants that they could pursue proceedings in Cyprus for the vindication of their rights and recovery of compensation. The basic reason given for not doing so was that they lacked the necessary means to meet the costs of the proceedings.

Under Cyprus law, only the personal representatives of the deceased, that is the administrators of his estate, can maintain an action on behalf of his estate (see Cyprus Legislation , section 58 of the Civil Wrongs Law, chapter 148, and the Administration of Estates Law, chapter 189), for damage to the estate and loss to his or her dependants. If the administrators fail to take an action, the dependants may do so themselves. Proof that they depended on the deceased for support is essential for the success of any such claim.

Put at their highest the claims of both groups of applicants are for loss of support by the deceased in the future as a result of the deaths of Lefteris Andronicou and Elsie Constantinou caused by the breach of their right to life. Their claim is founded on the loss of an expectation forecast to materialise at an unspecified time in the future. This is how they depict their claim for compensation at paragraph 6 of their written submissions under Article 50:

“As for the ‘dependency’ claim, the Applicants submit that it was fully expected that had Lefteris Andronicou and Elsie Constantinou lived, they would have supported the Applicants in their old age. In other words, there would have come a time when Lefteris Andronicou and Elsie Constantinou, as part of the Applicants’ families, would have contributed financially to the well-being of the Applicants.”

In their application the applicants alleged that the laws of Cyprus on the use of lethal force are vague and general and consequently fail to give effect to the provisions of Article 2 of the Convention, a lapse that in itself constitutes a violation of Article 2. This contention of the applicants was not pursued before the Commission and was expressly abandoned in their memorial (see paragraph 2). In their submissions under Article 50, they acknowledge that the law of Cyprus not only makes adequate provision for the compensation of victims of violations of the rights guaranteed by the Convention but also renders the State liable for exemplary damages in circumstances involving oppressive, arbitrary and unconstitutional action by “servants of the Government”.

The European Convention on Human Rights has been incorporated into and made part of Cyprus law as from 1962 by virtue of ratification Law no. 39 of the same year. Like any other Convention satisfying the test of reciprocity, its provisions override those of municipal legislation in the event of a conflict between the two, as laid down in Article 169 § 3 of the Constitution. Furthermore, the rights enshrined in the Convention are also in the main embodied in the Constitution of Cyprus, including the right to life guaranteed by Article 2. They are incorporated in Part II of the Constitution under the heading “Fundamental Rights and Liberties”. Article 35 of the Constitution, the ultimate section of this Part of the Constitution, imposes a duty on the legislative, executive and judicial authorities of the State – within the limits of their respective competences – to ensure the efficient application of the human rights entrenched therein.

The provisions of Article 2 of the Convention are in all important respects incorporated into and made part of Article 7 of the Constitution.

Article 172 of the Cyprus Constitution renders the State liable for unjust (wrongful) acts or omissions causing damage committed in the exercise or purported exercise of the duties of officers or authorities of the Republic. The liability of the State under Article 172 is all-embracing and a fortiori includes violations of fundamental human rights (see the following Cypriot cases: Kyriakides v. Republic 1 RSCC 66; Vrahimi and Another v. Republic 4 RSCC 121; Georghiou v. Attorney-General [1982] 1 CLR 938; Alexandrou v. Attorney-General [1983] 1 CLR 41; Pitsillos v. Republic [1984] 1 CLR 780).

In my opinion, the application is ill-founded and ought to have been dismissed as inadmissible. In the Airey case (cited above), it was emphatically decided that the Court is endowed with full jurisdiction to determine questions of admissibility. In this, as in other respects, the Court is in the same position as the Commission and enjoys similar powers to determine issues relevant to the admissibility and outcome of the application.

Irrespective of any other objection to the admissibility of the application, its fate ought to have been sealed by the finding of the Commission made in paragraph 197 of its report that the applicants had an effective access to the courts of Cyprus for the determination of their civil rights and obligations, of which they did not avail themselves. Paragraph 197 of the Commission’s report reads as follows:

“However, on 7 June 1995 the Attorney-General informed the applicants’ lawyer that ‘the State [would] cover any advocates’ costs that the dependants of the deceased may sustain if and when they decide to bring a civil action for damages against anyone on the basis of the facts which led to the tragic deaths of Elsie Constantinou and Lefteris Andronicou’. This offer remained valid until 20 July 1995, when it was withdrawn. The applicants had for more than a year the possibility to institute civil proceedings for the deaths of their relatives by accepting the Attorney-General’s offer. It follows that they could have had effective access to the courts for the determination of their civil rights and obligations.”

Reference to the offer having been kept open for more than a year is an obvious mistake. The offer was only open between the dates specified in paragraph 197, that is between 7 June 1995 and 20 July 1995.

The failure of the applicants to pursue domestic proceedings providing an avenue for the effective determination of their rights as found by the Commission renders their application inadmissible for failure to exhaust domestic remedies. The inference I draw is that the applicants sought to bypass domestic proceedings without any justification whatsoever.

The exhaustion of domestic remedies prior to having recourse to a supranational or international court or tribunal for the vindication of a right is a rule of international law that is incorporated and finds expression in Article 26 of the Convention. In the cases of De Wilde, Ooms and Versyp v. Belgium (judgment of 18 June 1971, Series A no. 12) it was pointed out that States are under no obligation to answer before an international body, court or tribunal for their acts before they have had an opportunity to put matters right through their own legal system (see also the Airey case cited above).

As in other areas of the Convention, the rule adopted in Article 26 must be given effect without undue formalism and must be applied with a degree of flexibility excusing non-exhaustion wherever domestic proceedings would be a fruitless exercise (see the Cardot v. France judgment of 19 March 1991, Series A no. 200; and the Castells v. Spain judgment of 23 April 1992, Series A no. 236).

In his statement before the Court Mr Trechsel made the following submission on behalf of the Commission with respect to the issue of non-exhaustion of domestic remedies.

“The question of non-exhaustion has been raised again. I think one of the main arguments against non-exhaustion should be that there was no effective chance – I would suggest – of successful court proceedings for damages in view of the result of the commission of inquiry’s work.”

The above proposition comes into direct conflict with the findings of the Commission in paragraph 197 of its report (quoted above) and cannot be sustained as part of the findings and conclusions of the Commission. Furthermore, it is premised on a misconception of the status and competence of a commission of inquiry and the effect of its findings.

A commission of inquiry is not a court of law. It has no competence or jurisdiction to make binding declarations on the rights and obligations of anyone; nor, for that matter, to make binding findings of fact. Its findings are not binding on anyone. It is an ad hoc body set up to hold an inquiry into a given matter or area or public activity. The compass of the inquiry (its mandate), is defined by the terms of reference of the commission established by the executive branch of government, the Council of Ministers, for whose benefit and guidance the outcome of the inquiry is principally intended. The establishment and powers of a commission of inquiry are provided for and regulated by law, namely the Commissions of Inquiry Law, Cap. 44 (as amended by Law no. 37/82 and Law no. 84/83). In this case its terms of reference required the one-member commission of inquiry to inquire into the circumstances under which the deaths of Lefteris Andronicou and Elsie Constantinou were caused, to ascertain whether anyone bore responsibility for these deaths and to make suggestions and observations such as the Chairman would deem necessary (see appendix to the report of the Commission, p. 48). As the Chairman made clear at the outset, the inquiry was no substitute for any other proceedings, nor did its holding have any suspensive effect on the right of an indicidual to have recourse to a court of law in accordance with Article 6 of the Convention or Article 30 of the Constitution, which guarantees a similar right as part of the fundamental rights and liberties of the individual.

The findings of the commission of inquiry are irrelevant and inadmissible in any judicial proceedings. The fact that the inquiry was conducted by the President of the Supreme Court is likewise an irrelevant consideration. To repeat the time-honoured pronouncement of Lord Atkin [5] “…Judges are no respecters of persons …”. The law is their only source of authority and guidance and proven facts the only facts relevant to the discharge of their duties.

The fact that no criminal proceedings were instituted against anyone for the incident under consideration is of no relevance. The responsibility of the State under Article 2 is not contingent on or dependent upon the criminal liability of those directly or indirectly involved in the use of force exposing life to unnecessary risk (see the McCann and Others judgment cited above, p. 51). A State may be liable for a breach of Article 2 without anyone bearing criminal responsibility for the deprivation of the life of another. This is especially true in a case involving lack of proper planning and control on the part of those who organised and approved the operation.

Under the Constitution of Cyprus the institution of criminal proceedings is primarily the responsibility of the public authorities subject to the overriding power of the Attorney-General, an independent officer of the Republic of Cyprus, to initiate or discontinue such proceedings. The jurisdiction of a criminal court in Cyprus is confined to passing judgment on the guilt or innocence of the accused. It has no jurisdiction to inquire into questions of civil liability of the accused or to award damages. Nor is the conviction of the alleged offender a prerequisite for the institution of civil proceedings founded on allegations amounting to a crime, subject to prior notice being given to the Attorney-General of the Republic of the institution of the proceedings (see Cyprus Legislation , proviso to section 67 of the Civil Wrongs Law, chapter 148).

Lastly, it must be noted that the victim of a crime has the right to take a private prosecution (see the Cypriot case of Ttofinis v. Theocharides [1983] 2 CLR 363), subject only to the right of the Attorney-General to take over and continue or discontinue any such proceedings at his discretion.

The findings of the Commission pertaining to the deaths of Lefteris Andronicou and Elsie Constantinou and the consequent liability of the Republic of Cyprus for a breach of Article 2 are not pegged to the criminal liability of those who caused their deaths. On the contrary, it is accepted that the two officers who fired at them and caused their deaths acted under the honest belief that their lives were in imminent danger, a fact that sparked off a reflex reaction with fatal consequences for Lefteris Andronicou and Elsie Constantinou.

The decision of the Commission holding Cyprus responsible for a breach of Article 2 is founded solely on the lack of proper planning and control of the operation. The crux of the decision is that the operation was ill-planned and badly controlled, rendering Cyprus responsible for breach of Article 2.

The validity of the application can also be tested in another way. Assuming the Court found that Cyprus was not responsible for a breach of Article 2, would that finding prevent the applicants from reverting to the domestic courts and seeking remedies they had not exhausted before? I think not. The issues before the two jurisdictions are not identical. The rules of evidence relevant to the proof of the issues before the two bodies are wholly different. In fact the justiciable issues before the two jurisdictions are separate and distinct. In this context we must bear in mind that the choice of means for the ventilation of a right and the procedure applicable before the domestic courts is a matter for the Contracting States. The domestic process does not coincide with the process before the Commission or the Court. It is different. This is one of the reasons why exhaustion of domestic remedies is an essential prerequisite for proceedings to be brought under Article 25 of the Convention. A reverse decision by the Court finding a breach of Article 2 but leaving the applicants dissatisfied with the remedies awarded them would by a similar reasoning leave the door open to them to pursue proceedings before the courts of Cyprus with a view to securing higher compensation.

In my view, the applicants did not pursue domestic remedies to vindicate their rights and obtain relief, far less did they exhaust them. Hence, their application falls to be dismissed for non-compliance with Article 26 of the Convention.

The majority of the Court (seven members) take the view, for the reasons indicated in the judgment, that domestic remedies were exhausted. Inevitably the Court had to concern itself with the merits of the application and decide whether the Republic of Cyprus violated the right to life of Lefteris Andronicou and Elsie Constantinou in the light of the findings of the Commission pertaining to the circumstances of their deaths. Consequently, the Court had to determine the substantive issue of a breach of the rights of the two deceased under Article 2 of the Convention.

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The next question I shall address is whether my decision that the application is inadmissible precludes me from participating in the adjudication of the issue under Article 2. After giving due consideration to the matter, I have concluded that there is no such impediment. On the contrary, I am duty bound to take part in the resolution of every issue raised before the Court for determination, including the one under Article 2.

Article 43 of the Convention must first be consulted. It provides:

“For the consideration of each case brought before it the Court shall consist of a chamber composed of nine judges. There shall sit as an ex officio member of the chamber the judge who is a national of any State Party concerned, or, if there is none, a person of its choice who shall sit in the capacity of judge; the names of the other judges shall be chosen by lot by the President before the opening of the case.”

The duty of the Court to consider a case extends to and encompasses, as Article 43 implies, all the issues raised in a given matter, the resolution of which is necessary for a conclusive outcome of the case. The jurisdiction of the Court is indivisible. It is entrusted to the Court as a whole requiring all its component parts, i.e. each member of it, to take part in the resolution of every issue the determination of which is necessary for the outcome of the case. Any other interpretation would make it possible for one or more pertinent issues to be determined by a part of the Court and conceivably by a minority of its members. For instance, if four out of the nine members of the Court voted for non-exhaustion of domestic remedies and abdicated on that account from taking part in the resolution of the substantive issue, the outcome of a case might turn on the decision of three of the nine members of the Court.

The view that it is incumbent upon every member of the Court to address every issue raised in a case is reinforced by the provisions of Article 50 of the Convention conferring jurisdiction on the Court (in its entirety) to address the implications of a finding of a breach and afford consequential relief.

Although I am unable to trace any decision of the Court specifically dealing with the subject under consideration, it appears that the Court has consistently adhered to the view that every issue necessary for the determination of the case must be resolved by all the members of the Court. This emerges from a survey of the voting practice of the Court by Marc-André Eissen (former Registrar of the Court) to which my attention was drawn and entitled “ Discipline de vote à la Cour européenne des Droits de l’Homme ? ”. A consistent pattern emerges to the effect that members of the Court do in fact address every issue raised before it for consideration without being fettered by their decision on any other issue in the case. It is in this spirit that I shall also address the third substantive question raised before us concerning violation of Article 2, accepting, as I must, the decision of the majority of the Court that local remedies were exhausted. It is upon that premise laid by the decision of the Court that I shall examine the next question calling for resolution and decide, on the strength of the material before us, whether the right to life of Lefteris Andronicou and Elsie Constantinou, safeguarded by Article 2 of the Convention, was violated.

C. Violation of Article 2 of the Convention

I accept, as indicated earlier, the findings of fact made by the Commission relevant to: (a) the events that preceded the operation; (b) its necessity and planning ; and (c) the circumstances leading to the deaths of Lefteris Andronicou and Elsie Constantinou.

At the outset, it must be acknowledged that the necessity of the operation and the action of those who planned and those who conducted it must be judged from the perspective of the time when the events took place and the pressure under which the decision to mount the operation was taken and its planning made. The following passage from the judgment in the case of McCann and Others (cited above) is relevant in this connection:

“[The Court] considers that the use of force by agents of the State in pursuit of one of the aims delineated in paragraph 2 of Article 2 of the Convention may be justified under this provision where it is based on an honest belief which is perceived, for good reasons, to be valid at the time but which subsequently turns out to be mistaken. To hold otherwise would be to impose an unrealistic burden on the State and its law-enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and those of others.”  (pp. 58–59, § 200)

The police were confronted with a difficult choice, having to steer between two alternatives: to allow on the one hand the impasse in the negotiations with Lefteris Andronicou concerning the release of his captive, Elsie Constantinou, to continue or, on the other, to mount a rescue operation. Both alternatives were fraught with foreseeable risks to the lives of to the occupants of the flat. The threatening innuendoes of Lefteris Andronicou as to what might happen at midnight, his violent behaviour towards Elsie Constantinou exhibited earlier in the day, coupled with his erratic and unpredictable conduct, made the decision of the police to mount the operation for the dual purpose of rescuing Elsie Constantinou and arresting Lefteris Andronicou a reasonable option in the circumstances. No blame is cast by the Commission on the police authorities for taking that decision. What the Commission found to be wrong was the planning of the operation. Because of its shortcomings, the lives of Lefteris Andronicou and Elsie Constantinou were exposed to risks that could have been avoided had the operation been planned more adequately and prudently. The planning of the operation, as I construe the report of the Commission, was deficient, betraying a lack on the part of the Cypriot authorities of the concern required by Article 2 for the lives of Lefteris Andronicou and Elsie Constantinou in four material respects.

(a) Insufficient consideration was given to the fact that Lefteris Andronicou was not a terrorist or a hardened criminal.

(b) The choice of MMAD officers to carry out the rescue operation carried foreseeable risks to the lives of Lefteris Andronicou and Elsie Constantinou that could have been avoided had the task been entrusted to a police force with a different training and approach to such an operation. The MMAD officers were trained to shoot to kill if they came under fire or perceived immediate danger to their safety. In those circumstances, they could foreseeably be expected to react by shooting to kill.

(c) Equipping the MMAD officers with machine guns was not warranted by the risks inherent in the operation for the safety of the task force and unnecessary for the success of the operation. The availability of machine guns increased unnecessarily the risks to the lives of Lefteris Andronicou and Elsie Constantinou. Their possession was not warranted either by the weapon known to be at the disposal of Andronicou (a non-automatic weapon) or the inherent hazards of the operation.

(d) The information that Lefteris Andronicou might be in possession of weapons other than the shotgun had no foundation and ought to have been discarded.

A fair inference from the findings of the Commission is that the passing on of this information to the officers entrusted with carrying out the rescue operation magnified in their minds the dangers inherent in the operation and made Lefteris Andronicou appear a far greater source of danger than he was. The inevitable result was to enhance their readiness to use lethal force.

In my view the findings of the Commission are warranted by the evidence relevant to the events leading to the deaths of Lefteris Andronicou and Elsie Constantinou. Equally justified is its conclusion that the planning and control of the rescue operation was faulty to the extent of rendering the respondent, the Republic of Cyprus, liable for a breach of Article 2 of the Convention. The operation exposed the lives of Lefteris Andronicou and Elsie Constantinou to risks that could have been avoided had it been planned with more diligence and greater awareness of the duty under Article 2. The non-elimination by State authorities of avoidable risks to the lives of others in the planning and control of an operation with inherent danger to their lives constitutes a breach of Article 2 (see the McCann and Others judgment cited above).

The events that followed the forcible entry by the MMAD officers into the flat occupied by Lefteris Andronicou and Elsie Constantinou revealed to the full the inadequacies in the planning of the rescue operation and the lack of proper control of its execution. Below, I explain why.

(1) The ill-advised choice of officers trained to shoot to kill if they perceived danger to their safety had disastrous consequences. After apprehending danger to themselves following the fall of their two colleagues, they (the members of the team identified as Officers nos. 2 and 4) reacted by firing at Lefteris Andronicou with a view to killing him. Such was their training that they continued firing at him long after it was evident that he lay motionless on the ground, posing no danger to their safety. At no time did they give thought to moderating their reaction in view of the presence of Elsie Constantinou, whose safety ought to have been uppermost in their minds and in those who planned the operation.

Elsie Constantinou was used as a shield by Lefteris Andronicou. In directing their fire – twenty-nine shots – the two officers involved do not appear to have discriminated between Lefteris Andronicou, whom they perceived as posing a threat to their lives, and Elsie Constantinou, whom they were entrusted with rescuing. At no time do they appear to have given thought to firing at Lefteris Andronicou with a view to disabling and neutralising him as a potential source of danger. The officers’ reaction was in large measure the result of their training.

The fact that the use of lethal force is, as made clear in McCann and Others, the result of reflex action is neither an excuse nor a justification for acts incompatible with the duty under Article 2 of the Convention; not even when dealing with dangerous terrorists. The following passage from paragraph 212 of the McCann and Others judgment is instructive on the subject:

“Their reflex action in this vital respect lacks the degree of caution in the use of firearms to be expected from law-enforcement personnel in a democratic society, even when dealing with dangerous terrorist suspects, and stands in marked contrast to the standard of care reflected in the instructions in the use of firearms by the police which had been drawn to their attention and which emphasised the legal responsibilities of the individual officer in the light of conditions prevailing at the moment of engagement.”

In this case, no specific instructions were given to the chosen team (the MMAD platoon) as to how they should confront danger. The conduct of the operation was very much left to the discretion of the officers assigned to the task, a fact in itself indicative of the lack of proper control of the operation and of absence of due regard for the lives of Lefteris Andronicou and Elsie Constantinou.

(2) There was no proper foundation for the information that Lefteris Andronicou was in possession of any weapon other than the double-barrelled shotgun. On the contrary, all the indications were that he had no other weapon available to him; neither the background of Lefteris Andronicou nor his previous conduct could lend credence to the information. Its unwarranted communication to the officers assigned to the operation, coupled with the weight that they could be expected to attach to information coming from an official source, increased their sense of the danger inherent in carrying out the operation and correspondingly their readiness to use lethal force.

(3) Arming the MMAD platoon with machine guns was wholly unwarranted – all the more so in view of the training of the officers who carried them and the knowledge that the police authorities ought to have had of the likely reaction of those officers when perceiving danger to their safety. The fact that the machine guns were fitted with lighting apparatus was no excuse. The armoury of the MMAD officers was disproportionate to the risks involved in the operation and counter-productive to its life-saving objective. The carrying of automatic weapons introduced foreseeable dangers for the lives of Lefteris Andronicou and Elsie Constantinou that could have been avoided by restricting the equipment of the officers to lighter arms.

The end result of the bad planning and lack of proper control of the operation was that two of the members of the platoon, perceiving danger to their safety, made unrestrained use of their machine guns regardless of the consequences. And the consequences were fatal.

[1] 1. This summary by the registry does not bind the Court.

[2] Notes by the Registrar

. The case is numbered 86/1996/705/897. The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[3] . Rules of Court B, which came into force on 2 October 1994, apply to all cases concerning States bound by Protocol No. 9.

[4] . Note by the Registrar . For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1997), but a copy of the Commission’s report is obtainable from the registry.

[5] 1. See dissenting opinion of Lord Atkin in Liversidge v. Anderson [1941] 3 All ER 338; see also IRC v. Rossminster Ltd [1980] 1 All ER 80.