PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE ELÓSEGUI

1. I have voted with all my colleagues in favour of finding a procedural violation of Article 2 of the Convention; however I have not joined the majority in finding a substantive violation of Article 2 of the Convention. In this separate opinion I should like to develop the reasons for my vote on this latter point.

2. It may be noted that when the applicant’s brother was taken to the psychiatric clinic at his relatives’ request, he was no longer displaying any signs of agitation or threatening behaviour (see paragraph 6 of the present judgment). In my view, it could not have been foreseen at that point that the situation would unfold as quickly and exceptionally as it did. It appears that police officers were called to intervene at the clinic because P.Z. had suddenly grown restless and started behaving in an aggressive manner, and the medical staff were unable to control him. Having violently attacked an orderly and sprayed water from a fire hose onto exposed electrical wiring, giving rise to a danger of electrocution, P.Z. undoubtedly posed a serious risk to himself and others. He died while the police officers were attempting to immobilise him using, among other methods, a taser.

3. The decisive question is whether the police officers’ unplanned intervention was appropriate in the circumstances, having regard to the concrete facts and practical realities of the present case, or whether less serious means would have been sufficient to avoid the risk posed by P.Z.’s behaviour.

4. It is possible to note from the Government’s observations (see paragraphs 67 and 68 of the present judgment) that the police officers had attempted several other measures before resorting to the taser. They initially instructed P.Z. to refrain from engaging in violent behaviour, and then used a mattress as a shield and forced him to the ground, managing to secure his left arm. However, their attempts to subdue him were hindered by a lack of space, given that these events took place in a 2.25-metre-wide corridor, while P.Z. continued to put up active and vigorous resistance. In such a situation, officer T. decided to fire his taser, aiming at points away from P.Z.’s heart and other vital organs (see paragraphs 8, 10 and 19 of the present judgment).

5. It could be further observed that neither the autopsy carried out on the day of the incident (see paragraph 14 of the judgment), nor the forensic report of 2 March 2016 (see paragraph 18 of the judgment) ruled out the possibility of a causal link between the use of a taser against the applicant’s brother and his death. According to those reports, the immediate cause of P.Z.’s death was cardiac arrhythmia, which could have had many potential causes – one being the electrical discharge emitted by the taser. The subsequent investigation into the incident concluded that: (i) the taser had been used in a manner that had been fully in line with the rules on the use of coercive measures; (ii) P.Z.’s cardiac anomaly was not foreseeable; and (iii) his death could not be attributed to any particular person or act (see paragraphs 19 and 93 of the present judgment). Accordingly, the Government maintained that the use of a taser had, at most, been one of multiple factors that had contributed to P.Z.’s death (see paragraphs 63 and 99 of the judgment).

6. In my opinion, this is not a sound basis on which to assess the situation in which the police officers, who were required to react in the heat of the moment, found themselves, or on which to assert that P.Z. could have been subdued by other means. The Court has repeatedly stated that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 182, 14 April 2015). Moreover, errors of judgment or mistaken assessments, unfortunate in retrospect, will not per se entail responsibility under Article 2 of the Convention (see, among other authorities, Tagayeva and Others v. Russia , nos. 26562/07 and 6 others, § 609, 13 April 2017, and Machalikashvili and Others v. Georgia , no. 32245/19, § 105, 19 January 2023).

7. With regard to the foreseeability of the consequences of using coercive measures, namely the taser in the present case, even accepting that the struggle between P.Z. and the police officers may have exacerbated his health problems, the Court has reiterated on other occasions that in order for the respondent State’s international responsibility to be engaged, the officers must also have been reasonably expected to know that the victim was in a vulnerable state requiring a high degree of care in the choice of “normal” arrest techniques (see Scavuzzo-Hager and Others v. Switzerland , no. 41773/98, §§ 58 and 60, 7 February 2006). In the instant case, the judgment considers that, while the police officers could have presumed that P.Z. (as a patient of a psychiatric clinic) was receiving psychiatric treatment, they could not have known that he was suffering from a cardiac anomaly, which was only detected during the autopsy performed after his death. Accordingly, they could not have known that the electrical discharges generated by the taser (either in themselves or in view of his heart disease and the medication administered to him) would pose a risk to his life (see, mutatis mutandis , Boukrourou and Others v. France , no. 30059/15, § 61, 16 November 2017).

8. As to the applicant’s criticism regarding the police officers’ failure to coordinate with the medical staff (see paragraph 61 of the judgment), I can agree that there was room for improvement in this area (see paragraphs 100-109 of the judgment); however, the manner and means of coordination between police officers intervening at hospitals and health professionals is a matter which falls within the State’s margin of appreciation in respect of the internal regulations of health establishments.

9. In view of the foregoing and in contrast to the majority, I consider that there are insufficient grounds for calling into question the conclusions reached in the instant case by the medical experts and domestic authorities which reviewed the police officers’ actions and found them adequate (see, in particular, paragraphs 19 and 20 of the judgment). The Court has found a substantive violation on account of the State’s failure to meet its positive obligations to protect the life of the applicant’s brother. The judgment finds the State to be liable, although it is very careful not to blame the police officers (see paragraphs 109 and 125 of the judgment). The majority finds itself unable to conclude beyond all reasonable doubt that the use by police officers of coercive means, including a taser, was excessive in the present case, and that the death of the applicant’s brother was caused by the police officers or was foreseeable by them. However, it emphasises that this inability results at least in part from the shortcomings of the investigations conducted by the domestic authorities (see paragraph 125 of the judgment). Having agreed with all of this in general, in my opinion it is not possible in this concrete case to reach the conclusion that there has been a substantive violation, but only a procedural one. Although I acknowledge that in other cases, the lack of investigation went hand-in-hand with a substantive violation of Article 2 and Article 3, especially when the victims died while under the control of the State, when performing military service or in prison, through the action of other prisoners, I do not see the same situation here.

10. As to the medication administered to P.Z. by the medical staff, which the applicant also questioned before the Court (see paragraphs 53 and 59 of the judgment), it should be noted that following the applicant’s complaint regarding the poor level of healthcare services provided to P.Z., an independent psychiatric expert found that the procedure followed by the medical staff in the present case had been entirely lege artis and that there had been no direct link between P.Z.’s death and his medical treatment (see paragraph 24 of the judgment). In this regard, given that the applicant did not claim that the State had failed to make adequate provision for securing high professional standards among health professionals, in my opinion (and contrary to what is stated in paragraph 101 of the judgment), there has been no failure for which the State should be required to give account from the standpoint of its positive obligations to protect life under Article 2 of the Convention (see, mutatis mutandis, Byrzykowski v. Poland , no. 11562/05, § 104, 27 June 2006, and Belenko v. Russia , no. 25435/06, § 73, 18 December 2014).

11. Lastly, if we acknowledge that the use of a taser must engage the State’s positive obligation to adopt regulations for the protection of life and to ensure the effective implementation and functioning of that regulatory framework, this does not automatically mean that there exists a substantive violation of Article 2 when the quality of the law somehow falls short. Even if I share all the recommendations set out in paragraphs 102 to 109 of the judgment, these should largely be taken as obiter dicta , but not used as the foundation of a substantive violation of Article 2 in the present case. In fact, the analysis in these paragraphs is a criticism of the quality of the law, but without stating this directly.

12. As regards the domestic legal framework, the judgment notes, firstly, that a taser is considered to be a non-lethal device in the Czech Republic (see paragraph 103 of the present judgment) and that at the time of the events in question the use of tasers was governed by the relevant rules as set out in the Police Act (see paragraphs 27-31) and an internal police guide (see paragraph 35 of the judgment). Under those rules, police officers have the right (after first issuing a warning) to use a taser only if the use of a different coercive measure would obviously not be sufficient to achieve the aim pursued by the intervention in question (such as the protection of their own or another person’s safety, property or public order) and if the use of a taser is necessary to overcome resistance or an attack by the person concerned. The taser may be used only as the last alternative to a weapon, with due regard to the principle of proportionality, and cannot in principle be used against certain categories of vulnerable persons specifically mentioned in section 58(1) of the Police Act (see paragraph 31 of the judgment).

13. The judgment also indicates that training on taser use is available to police officers in the Czech Republic. It is not disputed that officer T., who tasered P.Z., had received such training, as designed at that time (see paragraphs 26, 76 and 106 of the judgment). Although the relevant training encompasses mainly theoretical information concerning technical aspects and the safe and correct handling of a taser, police officers are also expected to be able to explain the health risks associated with its use (see paragraph 32). While the statements of the Public Defender of Rights, to the effect that at the time of the events in question and until 2017 the police training had paid little attention to the actual and real risks associated with the use of tasers and the need to exercise special caution when dealing with persons who present risk factors (see paragraphs 26, 75 and 80), cannot be ignored, I do not have enough elements to conclude that those lacuna were decisive in the present case.

14. Indeed, in my opinion the mere fact that the regulatory framework may be deficient in some respects is not sufficient to raise an issue with regard to a substantive violation of Article 2 of the Convention. It must be shown to have operated to the person’s detriment ( see Fernandes de Oliveira v. Portugal [GC], no. 78103/14, § 107, 31 January 2019). In my view, there is no reason to consider, in the present case, that deficiencies in police training or the rather general nature of the regulatory framework as described above (see paragraph 12 of this opinion) could have contributed to the death of the applicant’s brother. In this connection, the facts indicate that the immediate cause of P.Z.’s death was cardiac arrhythmia (see paragraphs 14 and 18 of the judgment), that his cardiac anomaly was detected only during the autopsy performed after his death and that, in consequence, the police officers could not have known that the electrical discharges generated by the taser would pose a risk to his life (see paragraph 125 of the judgment).

15. In view of the above considerations, I do not believe that flaws can be detected in the case at hand which would allow the Court to conclude that the defendant State failed in its substantive positive obligation to safeguard the applicant’s brother’s right to life. That is why I did not vote for the operative provision related to the existence of a substantive violation of Article 2 of the Convention, whereas I clearly supported the finding of a procedural violation of Article 2.

STATEMENT OF DISSENT OF JUDGE MOUROU-VIKSTRÖM

I do not agree with the majority’s view that there has been a violation of Article 2 in its substantive aspect.

[1] The situation typical for many European countries was described by the CPT, for example, in relation to a psychiatric hospital in the Czech Republic in 2010 in the following terms: “The CPT must express its concern about the legal situation of a number of patients at Horní Beřkovice Psychiatric Hospital. Despite the fact that they had signed a form upon arrival giving their consent to hospitalisation, these patients were being accommodated in closed wards and were not free to leave; in other words, they were de facto involuntary patients, being deprived of the benefit of any of the safeguards which accompany the initial involuntary placement procedure.” Report to the Czech Government on the visit to the Czech Republic carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 7 to 16 September 2010, § 105. See CPT/Inf (2014) 3. https://hudoc.cpt.coe.int/eng?i=p-cze-20100907-en-27

[2] Means of restraint in psychiatric establishments for adults (CPT/Inf(2017)6), p. 10. https://rm.coe.int/16807001c3