HEIKKINEN v. FINLAND
Inadmissible
Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva
The applicant, Mr Mika Antero Heikkinen, is a Finnish national who was born in 1972 and lives in Helsinki. He was represented before the Court by Mr Heikki Salo, a lawyer practising in Helsinki. On 17 December 2005, in the middle of the night, the applicant and his friend stole a car and used it in a burglary. During their escape from the crime scene at high speed the applicant, who was under the influence of alcohol and drugs, shunted the car of the security guard who was trying to stop them. Some time later the police arrived with two vehicles and tried to stop the applicant by shunting his car off the road, one vehicle hitting the car sideways and one at the rear. The applicant tried to escape by driving at the police cars from the front and behind. When the applicant’s car became stuck in bushes, police officer J.H. stepped out of his car, which was in front of the applicant’s car, and started to approach him on foot, moving towards the front of the car. When he was some three metres from the applicant’s car, the applicant managed to free his car from the bushes and drove suddenly towards J.H. J.H. quickly side-stepped in order not to be run over and fired a total of six shots at the car in an attempt to stop the applicant. Three of the shots hit the upper edge of the front wheel on the driver’s side, and the last three shots were fired at the side of the vehicle as it passed. One of these shots hit the applicant in the back of the shoulder, making him lose control of the car. The car hit first the police car, then a nearby building. Initially, the applicant suffered from varying degrees of muscular weakness on his left side but he quickly regained mobility and later made a full recovery. His most recent medical check-up was in August 2006. During the investigation of the shooting, a reconstruction of the events was organised, based on sound recordings. In the context of the investigation, all the persons involved in the incident as well as some tactical and operational experts were questioned. On 5 June 2006 the Helsinki District Court (käräjäoikeus, tingsrätten) found J.H. guilty of negligent breach of official duty and of causing bodily harm. He was sentenced to 40 day-fines, totalling EUR 1,160. The applicant was convicted of violent resistance to a civil servant and a person upholding order, stealing a vehicle, driving under the influence of alcohol and without a valid licence, theft and aggravated endangering of road safety. He was sentenced to imprisonment of one year and one month and ordered to pay substantial to several parties. The court noted that J.H. had been in a situation which he could have perceived as dangerous for himself and for others and that he had only had approximately one second in which to react. He had known that the applicant had earlier driven at 180 km/h and he had seen the applicant shunt the police vehicles violently with his car when trying to escape. J.H.’s intention, after the applicant’s car had become stuck in the bushes, had been to force the applicant out of the car but as the events developed very suddenly, he had acted instinctively and in self-defence. The court found that as J.H. had perceived the situation as being one of self-defence, the use of firearms had been justified. However, as the applicant had been injured, J.H. was convicted of negligent breach of official duty and of causing bodily harm. On 19 December 2007 the Helsinki Court of Appeal (hovioikeus, hovrätten), after having held an oral hearing, acquitted J.H. of all charges. The court found that even though, according to the internal rules, the stopping of a vehicle should be carried out by methods other than by using firearms, that rule did not cover situations qualifying as self-defence. Although in theory the policemen may have had other less drastic means available to them to stop the applicant’ On 27 October 2008 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicant leave to appeal. Chapter 4, section 4, of the Penal Code (rikoslaki, strafflagen, Act no. 515/2003) provides about self-defence the following: “An act that is necessary to defend against an ongoing or imminent unlawful attack is lawful as self-defence, unless the act manifestly exceeds what in an overall assessment is to be deemed justifiable, taking into account the nature and strength of the attack, the identity of the defender and the attacker and the other circumstances. However, if the defence exceeds the limits of self-defence (excessive self-defence), the perpetrator is exempt from criminal liability if the circumstances were such that the perpetrator could not reasonably have been expected to have acted otherwise, taking into account the dangerousness and sudden nature of the attack and the situation also otherwise.” Chapter 4, section 6, of the same Code provides the following: “Separate provisions in an Act apply to the right to use forcible measures in the performance of official functions or for another comparable reason and to the right to assist persons appointed to maintain order. In the use of forcible measures, recourse may be had only to such measures necessary to perform the function and that can be deemed justifiable when assessed as a whole, taking into account the importance and urgent nature of the task, the dangerousness of the resistance and the situation also otherwise. If the limits provided in subsection 2 have been exceeded in the use of forcible measures, the perpetrator is nonetheless free of criminal liability if there are very weighty grounds to deem that the perpetrator could not reasonably have been expected to have acted otherwise, taking into account his or her position and training, the importance of the function and the unexpected nature of the situation.”