CASE OF LEONIDIS v. GREECE
Violation of Art. 2 (substantive aspect);No violation of Art. 2 (procedural aspect);Non-pecuniary damage - finding of violation sufficient
Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
5. The applicant, Mr Grigorios Leonidis, is a Greek national of Russian-Pontic origin who was born in 1952 and lives in Thessaloniki. 6. In the early hours of 25 March 2000 the applicant’s 18 year-old son, Nikolaos Leonidis, and two of his friends were in a district of the old town of Thessaloniki. 7. Plainclothes police officers G.A. and C.T., serving in the Ano Poli police station, were out on patrol duty in an unmarked police vehicle when they noticed the three young men on the street. The three men were not committing any offence, but G.A. noticed in his car mirror that one of them turned to look at the police car as it passed. Since several burglaries had been recently reported in that area, he decided to carry out an identity check. However, as he drove back towards them, the three men ran away. 8. The two police officers got out of the car and ran after them. The chase apparently continued for a minute. The three young men split up and ran off in different directions. 9. G.A. ran after Nikolaos Leonidis. As he approached him, Nikolaos Leonidis put his hand inside his jacket. Suspecting that the latter might take out a weapon, G.A pulled out his own service revolver, a 357 magnum Smith and Wesson, which had no safety catch and was loaded. Holding the revolver in his right hand, with his finger on the trigger, he ordered Nikolaos Leonidis to stop. After running a few metres, Nikolaos Leonidis tired of the chase, lost his balance and tripped. That allowed G.A. to catch hold of him with his left hand. G.A. then pushed him against a car and immobilised him by forcing him to raise his hands and place them on the car roof while he was pointing his gun towards the sky. 10. Then, with his left hand G.A. twisted the young man’s left wrist behind his back in order to handcuff him. At that point Nikolaos Leonidis jabbed him with his right elbow in the right side, causing him sharp pain. Reacting to the pain, G.A. bent forward, and while he was drawing himself back up, his revolver went off, firing a single shot in the lower part of Nikolaos Leonidis’ right ear, instantly killing him. 11. C.T., who had in the meantime arrived close to the two men, was five metres away from the scene and partially witnessed the incident. From where he was standing, he was not able to see the shooting. 12. A few hours after the fatal shot police officers from the Ano Poli police station conducted a preliminary inquiry (προανάκριση) into the event. The police officers inspected the area and drafted an inspection report as well as a sketch plan. In addition, they took a statement from C.T. A few hours later, a crime scene reconstruction was conducted in the presence of the Public Prosecutor and a report was drawn up in this respect. 13. On the same day a forensic post-mortem examination was performed by a forensic medicine expert from the University of Thessaloniki. The doctor indicated that the cause of death was a fracture of the cranium due to a gunshot wound and that the shot had been fired either at point-blank range or from a few centimetres distance. According to the report, the exact range was to be established after further examination in the criminal police laboratory. 14. The forensic medicine expert also examined G.A. According to the report, G.A. was diagnosed with “a contusion in the right hemithorax”. 15. On the same day, at around 1 p.m., the applicant was informed of the incident. 16. The following day, the Public Prosecutor of Thessaloniki instituted criminal proceedings against G.A. for wilful homicide, exceeding the limits of self-defence and unauthorised use of weapons. The applicant joined the proceedings as a civil party, claiming a specific amount by way of damages. 17. On the same day G.A. gave his statement before the investigating judge and he was set free after he had given a bank guarantee of EUR 1,467. 18. On 5 April 2000 the applicant gave a statement and asked the investigating judge to examine in detail the amount of pressure that needs to be put on the trigger in order to release the hammer and fire the gun as well as whether the use of the gun had been absolutely necessary after the victim’s arrest. 19. On 24 May 2000 the criminal police laboratory published the report on the range at which the bullet had been fired. According to the two experts, the sample of skin taken from the victim was too small to establish the exact range. 20. On 19 June 2000 the ballistic examination of the weapon was conducted. The report indicated that only one cartridge had been fired from G.A.’s weapon. 21. Following the preliminary inquiry the case was referred to the Indictment Division of the Thessaloniki Criminal Court of First Instance, which on 29 March 2001 decided not to press charges against G.A., considering that Nikolaos Leonidis’ death had resulted from his sudden and violent assault on G.A. and the accidental discharge of the latter’s revolver that was its consequence (decision no. 513/2001). 22. On 3 April 2001 the applicant lodged an appeal. On 18 June 2001 the Indictment Division of the Thessaloniki Court of Appeal confirmed the dismissal of charges against G.A. (decision no. 895/2001). It stated, inter alia, that: “The blow surprised the defendant, his body first bent forward and then backwards to the left, because of the pain and the surprise he felt, and his weapon, which was a revolver and did not have a safety catch, went off. (...) [Nikolaos Leonidis’s death] was not the result of the defendant’s reckless behaviour, but of the victim’s violent and sudden assault and the discharge of the latter’s revolver that was its consequence. There is nothing to show that [G.A.], given the circumstances and his knowledge and abilities, could have foreseen and avoided the death of the victim.” 23. On 9 July 2001 the applicant appealed to the Court of Cassation. 24. On 11 April 2003 the Court of Cassation overturned the decision appealed against and remitted the case to the Indictment Division of the Thessaloniki Court of Appeal for reconsideration (decision no. 1013/2003). It held that the reasoning given in the decision appealed against was ambiguous, contradictory and insufficient. In particular, it did not indicate how the trigger had been squeezed, although it implied that the discharge was connected to the victim’s violent movement. Furthermore, it did not make references to the forensic ballistics report. 25. On 20 June 2003 the Indictment Division of the Thessaloniki Court of Appeal overturned the dismissal of charges and committed the defendant for trial before the Katerini Assize Court. It stated, inter alia, that the victim had already been immobilised at the time he was shot and did not pose a threat to the defendant (decision no. 872/2003). 26. On 28 August 2003 the defendant appealed to the Court of Cassation. 27. On 23 December 2004 the Court of Cassation dismissed the defendant’s appeal (decision no. 2396/2004). 28. On 21 June 2005 the hearing before the Katerini Assize Court took place. The Katerini Assize Court heard evidence from the applicant, two other relatives of the victim, police officer C.T. and two other police officers, as well as from the defendant. 29. The Katerini Assize Court also heard statements from two experts the defendant had asked to be called. The first expert, a forensic medicine expert, who had read the post mortem examination, reached a conclusion supporting the defendant’s view. The second expert was a mathematician who put forward a theory on the trajectory of the bullet in support of the defendant’s view. The court also read out various documents, such as the results of the post mortem examination of the deceased, forensic medical reports, autopsy reports, photos and the crime scene reconstruction report. 30. On the same day the Katerini Assize Court published its judgment acquitting the defendant by four votes to three (judgment no. 47/2005). On the basis of the case-file and the evidence submitted the majority held in particular that: “... the violent blow surprised the defendant, who felt pain and bent forward and then backwards to the left and his muscles were “contracted” because of the pain that the violent and unexpected hit had caused him (...), ... because of his reflex action the defendant involuntarily squeezed the trigger of his revolver, which was not equipped with a safety catch, and a bullet was fired (...) ... It is apparent that the defendant had not intended to kill the victim, as charged, since: 1) the gun went off against his will and it was the result of the involuntary reflex action of the muscles of his right arm as a response to the sudden and intense blow that he had received from the victim; 2) he did not know the victim and he had no reason to hurt him, let alone to kill him; 3) if he had really wanted to kill Nikolaos Leonidis ..., he would have shot him during the chase and before his arrest; in any event there was no longer any reason to shoot him since he had already immobilised and arrested him ...; 4) only one bullet was fired from the gun ...; 5) from the trajectory of the bullet [according to the report of the mathematical expert], it appears that the hand that had fired the gun had not been steady ...; furthermore, it does not appear from the evidence that the defendant shot the victim in cold blood ... or that he acted in self-defence, since no attack was launched by the victim, who had already been immobilised ...” 31. Furthermore, the Katerini Assize Court examined the facts complained of under the provisions concerning reckless homicide. It concluded that: “... on the night of 25 March 2000 [G.A.] carried out his duties in the most impeccable way possible. He pursued the deceased with professional consciousness, he did not fire his gun during the pursuit, although another in his place might have done so, and, most importantly, he arrested and immobilised the deceased holding his revolver in his right arm and pointing it to the sky, in order to avoid accidents... What followed, i.e. the death of Nikolaos Leonidis, was not the result of an intentional act of the defendant or the latter’s reckless behaviour, but of the victim’s violent and sudden assault that caused the reflex action of the defendant ... and the discharge of the revolver that the latter was holding in his right hand. The reflex action of the defendant was an instantaneous reaction of the nervous system, an automatic contraction of the body muscles (including those of the right arm) out of the defendant’s control, as a response to the pain suffered from the violent and sudden blow; since this contraction was not a voluntary action, it cannot be considered an actus reus and hence he [the defendant] cannot be considered criminally liable... 32. The Katerini Assize Court reached the same conclusion as far as the charge of unauthorised use of weapons was concerned. In particular, it held: “Consequently, since neither the death of the victim nor the use of the defendant’s gun can be considered as “acts” in the legal sense of the term, the objective element of the crimes that the defendant is being accused of has not been established and he should be declared innocent.” 33. Two of the minority judges, including the President of the Katerini Assize Court, considered that the defendant should have been declared guilty of reckless homicide and unauthorised use of weapons. They based their reasoning on the way revolvers function: “... There is a slight time delay of 1 to 1.5 seconds between the moment the trigger is pulled and the moment the gun fires. This is the time the hammer needs to be cocked and released; the time the hammer needs to be cocked corresponds to the time the cylinder needs to rotate clockwise. When the hammer has already been cocked, it needs less pressure on the trigger to release the hammer and fire the gun. On the contrary, when the gun is in a hammer-down position, it needs more pressure on the trigger and more time to fire the gun, since in this case, the trigger first cocks the hammer (thus advancing the cylinder) and then releases the hammer at the rear of its travel, firing the round in the chamber. In the present case, it appears from the testimonies ... that ... with his left hand [G.A.] twisted the young man’s left wrist behind his back in order to handcuff him, while with his right hand he was holding the revolver, obviously with the hammer cocked, pressing against the victim’s right scapula. ... [Leonidis’s death] resulted from the defendant’s negligent conduct, since: 1) he should not have cocked the hammer of his gun, since in that case the trigger needs less pressure to fire the gun; 2) he should not have had his finger on the trigger but on its protective frame; 3) he should not have been pressing the gun against the victim’s scapula while he had his finger on the trigger and the hammer cocked. If the gun had been in a hammer-down position, even if the defendant had had his finger on the trigger, it would have been more difficult for the gun to go off, since it required more pressure on the trigger. ... the defendant had no intention to kill the victim ... he should have been declared guilty of reckless homicide and unauthorised use of weapons.” 34. On 7 November 2005 the applicant, who did not have the right to appeal in cassation under domestic law, asked the Public Prosecutor to bring the case before the Court of Cassation. On 14 November 2005 the Prosecutor dismissed his request. 35. Shortly after the shooting, G.A. was declared free of duty for two days and he was later granted sick leave for a total period of 52 days. On 17 May 2000 he resumed his duties in Ano Poli. On 3 July 2000 he was transferred to an administrative post in the Thessaloniki General Police Directorate. 36. In the meantime, on 27 March 2000, two days after the fatal incident, the Thessaloniki police headquarters launched a Sworn Administrative Inquiry (Ενορκη Διοικητική Εξέταση, – SAI) in order to ascertain the exact circumstances in which Nikolaos Leonidis’s death had occurred and whether police officer G.A was guilty of any disciplinary offence. That investigation was assigned to an officer of the police department dealing with administrative investigations. 37. On 3 April 2001 the report on the findings of the SAI was issued. According to the report, the death of Nikolaos Leonidis was not the result of the police officer’s reckless behaviour, but of the victim’s violent and sudden assault and the discharge of the latter’ 38. In the meantime, while the case was pending before the penal courts, on 29 November 2002 the applicant brought an action against the State under section 105 of the Law introducing the Civil Code seeking compensation for damage sustained as a result of an unlawful act by a public authority, namely, his son’s killing by police officer G.A. 39. On 31 January 2005, approximately five months prior to G.A.’s acquittal by the Katerini Assize Court, the Thessaloniki Administrative Court of First Instance allowed the applicant’s claims in part (judgment no. 148/2005). It held inter alia: “... The grounds set forth in Article 133 of Presidential Decree no. 141/1991, which authorises the use of firearms, do not apply under the circumstances of the present case, since [G.A.] had not been attacked by the victim ... nor was he acting in self-defence... The use of the firearm by the police officer in order to arrest the deceased was unlawful and resulted in the young man’s death. ... The police officer’s outline of events, according to which the firing was provoked by a ‘reflex action’ following the blow he had received from the victim – in the sense that he involuntarily pulled the trigger – cannot be accepted, because it is in contradiction with his own statement concerning an ‘unconscious instinctive reaction caused by the violent blow he had received’. In fact, that means that pulling the trigger was an instinctive reaction to the victim’s behaviour, which implies that [G.A.] acted without using his reason and without showing the prudence and discipline expected from a police officer with ten years of experience. ... thus, police officer G.A is 70 % responsible for Nikolaos Leonidis’s death since he used his firearm in violation of the applicable law...” 40. On 15 April 2005 the State appealed to the Thessaloniki Administrative Court of Appeal challenging the implementation of the substantive law and the assessment of the evidence. It referred subsequently, in a separate memorandum, that G.A. had been acquitted by the Katerini Assize Court on 21 June 2005. 41. On 19 May 2007 the Thessaloniki Administrative Court of Appeal rejected the appeal and awarded the applicant EUR 80,000 EUR for non-pecuniary damage (judgment no. 432/2007), considering inter alia: “Even supposing that the use of the firearm by the police officer in order to arrest the deceased was not in breach of a specific provision, nevertheless it constituted unlawful conduct, since he failed to take those steps that are appropriate to his duties, that result from the relevant legislation, from common sense, from his scientific and professional education and experience and from the notion of good faith and aim at the protection of individual freedoms, namely the right to life and limb. Consequently, the appellant is responsible...” 42. At the material time, the use of firearms by law-enforcement officials was regulated by Law no. 29/1943, which was enacted on 30 April 1943 when Greece was under German occupation. Section 1 of that statute listed a wide range of situations in which a police officer could use firearms (for example in order “to enforce the laws, decrees and decisions of the relevant authorities or to disperse public gatherings or suppress mutinies”), without being liable for the consequences. These provisions were modified by Article 133 of Presidential Decree no. 141/1991, which authorises the use of firearms in the situations set forth in Law no. 29/1943 “only when absolutely necessary and when all less extreme methods have been exhausted”. Law no. 29/1943 was criticised as “defective” and “vague” by the Public Prosecutor of the Supreme Court (see Opinion no. 12/1992). Senior Greek police officers and trade unions have called for this legislation to be updated. In a letter to the Minister of Public Order dated April 2001, the National Commission for Human Rights (NCHR), an advisory body to the government, expressed the view that new legislation which would incorporate relevant international human rights law and guidelines was imperative (NCHR, 2001 Report, pp. 107-15). In February 2002 the Minister of Public Order announced that a new law would shortly be enacted, which would “safeguard citizens against the reckless use of police weapons, but also safeguard police officers who will be better informed as to when they can use them”. 43. On 24 July 2003 Law no. 3169/2003, which is entitled “Carrying and use of firearms by police officers, training of police officers in the use of firearms and other provisions”, came into force. Law no. 29/1943 was repealed (section 8). Further, in April 2004, the “Pocket Book on Human Rights for the Police”, which was prepared by the United Nations Centre for Human Rights, was translated into Greek with a view to its being distributed to Greek policemen.