PARTLY DISSENTING OPINION BY MR. H.G. SCHERMERS

     As the Court held in McCann, Article 2 is not concerned

exclusively with intentional killing. The article will be infringed

also when accidental killing comes about with the use of force which

is disproportionate to its aim. Had the action in  the present case

been for a purpose other than saving the life of Elsie Constantinou,

or had it been known that Lefteris Andronicou was unarmed, then the

force used would have been excessive and the killings contrary to

Article 2.

     The question whether the use of force in the present case was

absolutely necessary must be seen in the light of the information

available to the police at the time. The police knew that Lefteris

Andronicou was armed and they were convinced that after midnight he

would use his gun for killing himself and possibly Elsie Constantinou.

     With the majority of the Commission I agree that mistakes have

been made by the Police. In hindsight it is easy to find mistakes. It

is obvious that ambulances should have been ordered earlier and that

officers number 2 and 4 were insufficiently qualified for their tasks.

In hindsight it would have been better if the police had abstained from

any action. In hindsight it would have been better if Dormicum had been

administered instead of Lorezabam, or if the Lorezabam pills had been

administered half an hour earlier. Someone should have thought about

drugs earlier and they should have been prepared earlier.

     I find it difficult, however, to classify the mistakes made by

the police as infringements of Article 2. Considering the situation at

the time and the facilities available, limited as they were (both with

respect to material and to human experience and capacities), I can

accept that the authorities considered that the use of force to defend

a person from unlawful violence was absolutely necessary. In my opinion

Article 2, para. 2 (a) is applicable. Infringement of Article 2 is a

serious matter. However deplorable the present case may be I find

insufficient fault with the Cypriot authorities for accusing Cyprus of

infringement of this article. Account should also be taken of the fact

that an investigation was made by a Commission of Inquiry, which had

the opportunity to hear witnesses and to visit the location and which

concluded that the force used was necessary under the circumstances at

the time.

     One may severely criticise the Cypriot authorities for arming the

police with a machine gun. I find it difficult, however, to consider

this armament as an infringement of Article 2? Would then not all

armament be contrary to Article 2? Seen from the angle of human rights

this position may well be defended. All armament potentially infringes

the right to life. Under the European Convention on Human Rights,

however, armament - and even excessive armament - is not prohibited.

Heavy armament of the police is not only for the purpose of killing.

It is also to strengthen the self confidence of the policemen and it

may have a deterrent effect.

     In paras. 180 and 187 the Commission seems to criticise the fact

that policemen were trained to shoot to kill. However, this rule

applies only against an opponent who is shooting at the policeman. It

is a harsh rule, but I see little alternative. A person shooting at the

police should be stopped immediately. Any delay is of mortal danger to

the policeman. Warning shots, or even shots in the leg or belly risk

another bullet against the police.

     With respect to Article 6 para. 1 of the Convention, I share the

opinion of the majority of the Commission.

                                                 (Or. English)