CASE OF HAÁSZ AND SZABÓ v. HUNGARY
Inadmissible (Article 35-1 - Final domestic decision);Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
András Sajó;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano
5. The first applicant was born in 1981 and lives in Siófok. The second applicant was born in 1995 and lives in Lepsény. 6. On 6 August 2012 the applicants were on an excursion to Lake Balaton. In the evening, they decided not to return home, but to spend the night in their car, a Fiat Punto, parked in a car park next to a pizzeria in Zánka. Waking up, they noticed that a car was passing by theirs, coming back and forth several times. They found this frightening and drove on to the village of Tagyon, where they stopped their car in the parking lot of a private house. 7. At the same time, around 3.05 a.m., an unknown person telephoned Mr S., a volunteer law enforcer, to tell him about a Fiat Punto suspiciously moving around in the neighbourhood, near a local grocery store. Mr S. informed off-duty police officer K., who was serving with the Balatonfüred Police Department. 8. Subsequently, officer K., driving his private car and taking a self-defence pistol, went to inspect the grocery store, together with Mr S. Not having found any trace of a criminal offence, they notified the duty officer of Balatonfüred Police Department about the sighting of the suspicious car. They were informed about the identity of the owner of the Fiat Punto, following which they continued to look for the vehicle in the surrounding area. 9. At about 3.30 a.m., they noticed the Fiat Punto parked in front of a private house. Officer K. stopped his vehicle, a black Ford Mondeo, perpendicularly to the applicants’ car, about a metre away. Both officer K. and the volunteer law enforcer started to run towards the applicants’ car, approaching from the back. The police officer shouted: “Police! Get out!” and held up his police identification card. 10. Ms Haász, sitting at the steering wheel, only noticed two people getting out of a dark civilian car and running towards them in civilian clothes. Finding this frightening, she attempted to drive away, forcing the garden gate of the adjacent property and driving into its yard. Inside the garden, the dimensions of which were 67 x 17.6 metres, and noticing that there was no other way to exit, she turned the car around and drove back towards the gate. 11. When the car was on its way out, officer K. waved at the car shouting “Police! Stop!” and fired a warning shot. As it appears from the case file, at this time Mr S. was standing in front of the police officer’s car, rather than in the prospective way of the applicants’ car. When the car passed officer K., he shot twice more, at the car. The first shot was fired downwards from about 6 metres’ distance, hitting the mudguard of the car on the left side at the level of the lights. The other shot was fired from about 4-4.5 metres following a downward trajectory. It went through the rear window, which fell into the car, missed the head of Ms Szabó by 5-10 centimetres and then went through the window of the right front door. 12. Ms Haász continued to drive, trying to leave the garden by passing around the police officer’s car to the left. She finally hit the officer’s car at its right side, at the passenger front door. At this moment Mr S. was standing next to the police officer’s car, at its left side, next to the open driver’s door. 13. Officer K. again called on the applicants to get out of the car, which they did. He put his gun away, presenting his police ID. Since the two men wore plain clothes and neither they nor their car had any police signs, the applicants realised that officer K. was a police officer and his associate a volunteer law enforcer only at this point in time. Thereupon it became clear that the incident was based on a misunderstanding, since the applicants had only been frightened but had had no intention whatsoever of countering a police measure. 14. Subsequently the Veszprém District Investigating Prosecutor’s Office (Veszprémi Nyomozó Ügyészség) initiated proceedings against officer K. on charges of attempted manslaughter (the charge being later on re-characterised as intentional endangerment committed by a public official). The applicants were questioned several times as witnesses, and a confrontation took place. Other witnesses were also heard and the opinion of a forensic firearms expert was obtained. 15. Simultaneously, officer K.’s superior, the Head of Balatonfüred Police Department, investigated the use of a firearm by officer K. He found that the officer had had no intention of endangering human life – his purpose had been to halt the applicants’ car, which had represented a danger for him and his associate – but that the officer’s action, although not criminal, had been unprofessional. According to the superior’s internal report, following a first warning shot, a second, intentional shot had been directed at the car, while the third one had been accidental, endangering the life of Ms Szabó. The supervisor initiated disciplinary proceedings, which were suspended pending the criminal proceedings. 16. The applicants also lodged a complaint formally challenging the lawfulness of the police measures with the Balatonfüred Police Department. These proceedings were suspended on 8 October 2012 pending the outcome of the criminal investigation. 17. On 3 July 2013 the Veszprém District Investigating Prosecutor’s Office discontinued the investigation. It found that officer K.’s use of firearms was lawful in the face of the danger represented by the conduct of the applicants, namely driving, at a speed of 14-16 km/h, in the direction of his associate. The Prosecutor’s Office accepted officer K.’s statements, according to which he had given a warning before shooting and had first shot on perceiving a danger to the life of his associate. It also accepted the police officer’s account of the events, namely that at the material time he could believe that his associate was standing between his car and the car of the applicants, which was approaching rather fast. Nonetheless, relying on the evidence furnished by a ballistic expert, the Prosecutor’s Office dismissed officer K.’s statement that the second shot following the warning had been accidental. The decision also relied on the report of the Chief of the Balatonfüred Police Department stating that officer K.’s conduct had been unprofessional as regards the second shot fired at the applicants’ car. The applicants’ lawyer filed a complaint against the discontinuation. 18. On 22 July 2013 the Veszprém County Public Prosecutor’s Office (Veszprém Megyei Főügyészség) dismissed the complaint, holding that the danger caused by the applicants had directly concerned the life and limb of officer K.’s associate. Relying on section 56 (2) of the Act on the Police, the Prosecutor’s Office found that the risk that the associate might be hit by their car had justified the shots by officer K. even if they had not been preceded by the requisite procedure, in particular a warning about the use of firearms, since any delay caused by the warning could have compromised the success of the measure. According to the decision, the applicants’ behaviour had constituted a direct threat to the life and limb of both Mr S. and officer K. The applicants were informed that the complaint had been dismissed under section 199 (2) point b) of the Criminal Procedure Code and that they had the possibility of filing a motion for prosecution, acting as substitute private prosecutors, under sections 229-230 of the Criminal Procedure Code. The decision was served on the applicants on 29 July 2013. 19. On 15 August 2013 the Veszprém County Public Prosecutor’s Office rejected the applicants’ renewed complaint. The County Public Prosecutor’s Office informed the applicants that the prosecution authorities would not deal with any further complaint unless it disclosed relevant new facts. In a letter of 27 June 2014 the Attorney General’s Office informed the applicants that there was no legal ground to quash the decisions on the discontinuation of the investigation in respect of officer K. 20. Meanwhile, on 14 October 2013 the Head of Balatonfüred Police Department dismissed, in its resumed proceedings (see paragraph 16 above), the applicants’ complaint about the actions of officer K. He concluded that although the latter’s conduct had been unprofessional because of the way he had halted the applicants’ car and the use of a self-defence pistol rather than a service pistol, it had not been unlawful. The applicants’ appeal was dismissed by the Veszprém County Chief Police Department on 19 December 2013. Since the incident, the applicants have been suffering from psychological troubles.