BŁOŃSKA v. POLAND
Inadmissible
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva
1. The applicant, Ms Krystyna Błońska, is a Polish national, who was born in 1950 and lives in Olsztyn. She was represented before the Court by Mr W. Wrzecionkowski, a lawyer practising in Olsztyn. 2. The applicant is the mother of Mr Przemysław Błoński (PB) who died on 2 December 2006. 3 4. On 19 November 2006 PB met with two friends (MG and SG) in a pub in Olsztyn and later took them home in his Ford car. 5. At about 8.20 p.m. on 19 November 2006 a police patrol was informed that a Ford car was driving dangerously in a district of Olsztyn. The police patrol, comprised of officers DD and BC, moved into the area and passed the information on to another patrol. They were in an unmarked police car. 6. The unmarked police car was overtaken by a speeding Ford. The police patrol turned on the flashing lights and the siren and gave chase. Officers DD and BC gave signals to the driver of the Ford to stop but they were not respected. A second unmarked police car, with officers LL and IP, joined the chase. At some point the first police car overtook the Ford and blocked the nearest junction by parking the car sideways across the road. The Ford stopped but as officer DD tried to get out of the car the driver of the Ford suddenly accelerated and hit the back of the police car. Officer DD gave a warning “Stop police!” and ordered the driver to stay still. 7. Subsequently, the Ford reversed and the two police officers (DD and BC) got out of their car. Officer DD ran to arrest the driver of the Ford but when he was near the driver, he suddenly accelerated in reverse. In reaction, officer DD had to jump aside to avoid being hit. He found himself in front of the Ford. Officer DD held his hand on the holster and shouted to the driver to stop the engine. The driver started moving in the direction of police officer DD who jumped to the right and later towards officer BC. Officer DD, who found himself at the back of the Ford, fired three shots aiming at the left wheel of the car. The Ford drove for another 100 metres and then hit a tree. 8. PB was taken to a hospital with a gunshot wound to the back of his head. A bullet was removed from his head. On 2 December 2006 PB died in hospital. 9. On 19 November 2006 the on-duty officer of the Olsztyn Police informed the Olsztyn-Południe District Prosecutor’s Office about the incident involving PB. Prosecutor JJ arrived at the scene of the incident shortly after. 10. The police secured the firearms of the police officers present during the incident and three cartridges. 11. The District Prosecutor opened an investigation into the alleged excess of authority by the police. 12. The prosecutor ordered that a forensic report be prepared. On 4 December 2006 the forensic expert submitted his report describing PB’s injuries, in particular a gunshot entry wound to the back of the head (right side). The cause of the death was acute heart failure related to the gunshot injuries of the brain. 13. The prosecutor heard PB’s mother (the applicant) and his sister. They stated that PB had been afraid of the policemen because a former officer MH had threatened him in the past. Officer DD denied having known PB. He stated that he had used the gun (aiming at the back tyre) because PB had attempted to knock him and officer BC down. Officer BC confirmed this version of events. She stated that PB had not obeyed their commands. 14. On 11 December 2006 a reconstruction of the incident was staged with officer DD. He demonstrated his position at the time of firing. The position of officer DD corresponded to the location of the cartridges found on the site of the incident. 15. The prosecutor ordered that a report by a firearm expert be prepared in order to establish, inter alia, the trajectory of the bullet removed from PB’s head. In his opinion of 9 January 2007, the firearm expert found that the bullet had been fired from officer DD’s gun. The shape of the bullet could indicate that it had ricocheted before entering PB’s body. Three cartridges found on the spot had also been fired from officer DD’s gun. Two remaining bullets had missed the car. 16. In his supplementary opinion of 19 January 2007, the firearm expert found that PB had been shot in his head by a bullet fired by officer DD, which ricocheted from the road. The findings of the firearm expert were supported by a reconstruction of the incident. In the course of the reconstruction a crack had been found in the road where the bullet had ricocheted. 17. The prosecutor also ordered a report by a car expert. The expert established that damage to the police car confirmed the version of events as presented by officers DD and BC. 18. Having regard to the above evidence, the prosecutor found that the police officers, including officer DD had acted lawfully in the pursuit of the driver of the Ford. When police officers DD and BC attempted to arrest PB, he started driving the car in their direction thus exposing them to a direct danger to their life and limb. Officer DD had fired 3 times aiming at the back wheel of the car seeing that the driver (PB) was driving towards officer BC. The prosecutor established that the version of events put forward by officers DD and BC was consistent with the findings of the experts. 19. The prosecutor established that officer DD had not exceeded his authority when firing at the car. The driver of the car had not obeyed police orders and had resisted police attempts to arrest him. He further endangered directly the life of officer BC. The use of a firearm had been justified under sections 17 § 1 (1) and 17 § 1 (6) of the Police Act. Accordingly, the prosecutor found that officer DD had used his firearm in accordance with the law (both grounds were present) and thus had not transgressed his authority. 20. On 7 February 2007 the Olsztyn-Południe District Prosecutor discontinued the investigation in the case since no crime had been committed. 21. The applicant appealed. She alleged that the district prosecutor had relied exclusively on the testimonies of officers DD and BC and had omitted to refer to testimonies of other witnesses who had given a different account of the relevant events. She also claimed that at the relevant time there had been no justification for the use of firearms in the absence of a direct danger to life. 22. On 13 July 2007 the Olsztyn District Court quashed the decision to discontinue the investigation. It found that the prosecutor had not addressed all the MH. The latter officer had been in conflict with PB and had allegedly threatened PB. Secondly, the prosecutor had to explain why the radio communications between the police officers and the on-duty officer had not been recorded. Thirdly, it was necessary to establish the precise course of the events in view of the ambiguous testimonies of the two police officers (DD and BC) including a drawing of the movements of the cars and persons involved. Fourthly, it was necessary to establish whether the use of the firearm had been justified by a risk to the life of officer BC at the relevant time. 23. On 3 July 2007 the applicant requested the Białystok Appellate Prosecutor’s Office that all prosecutors of the Olsztyn District and Regional Prosecutor Offices be excluded from the examination of the case. The request was granted and the subsequent investigation was conducted by the Łomża District Prosecutor. 24. The prosecutor ordered that an additional opinion by a firearm expert be prepared. In his opinion of 18 October 2007, the firearm expert presented his version of the consecutive stages of the incident, accompanied by drawings, which were based on the testimony of the two officers (primarily of officer DD). The expert observed that it was likely that the car had been moving at the time of firing and for this reason the bullets had missed the wheel and ricocheted. 25. On 22 November 2007 the Łomża District Prosecutor discontinued the investigation concerning the abuse of authority by police officer DD. The prosecutor followed the instructions of the district court in respect of the additional evidence to be obtained. It was also established that PB’s blood contained 2.84 mg of alcohol per litre. 26. On the basis of the additional expert report the prosecutor established that officer DD had fired three shots aiming at the left back wheel of the Ford (at the time DD had been behind the car). The distance between him and the car was of 4 to 6 metres. He had not hit the tyres and the bullet had ricocheted. The incident took place in the evening on an unlit road. It was not possible to have regard to the communications between the police officers and the on-duty officer because the relevant recording device had been defective for a few years. The two other police officers had been too far from the site to see precisely what happened. 27. The prosecutor accepted all the expert opinions obtained in the case. The most relevant were the opinions of the firearm expert which explained the trajectory of the bullet, and the opinion prepared following the reconstruction of the incident. The analysis of the telephone traffic and of other evidence led the prosecutor to conclude that the former police officer MH had not been in any way involved in the incident. 28. Officer DD stated that he had used his firearm because the driver of the Ford had attempted to run him and officer BC over. Officer BC confirmed this version of events. With regard to certain inconsistencies in the accounts of the witnesses, the prosecutor noted that the incident had taken place in the late evening and in bad visibility. In addition, the events unfolded speedily and had been very stressful. The prosecutor found officer DD’s testimony most comprehensive. This testimony was supported by the material evidence in the case. 29. The prosecutor found that the use of the firearm by police officer DD had been justified under sections 17 § 1 (1) (illegal attempt on the life or health of a person) and 17 § 1 (6) (direct pursuit of a person posing danger to someone’s life or health) of the Police Act. In accordance with the Ordinance of the Council of Ministers of 19 July 2005 (“the 2005 Ordinance”) on the specific conditions of the use of firearms by the police no further warnings of the police were necessary in situations governed by section 17 § 1 (1) of the Police Act (as in the case). 30. The prosecutor established that officer DD had fired three shots at the back wheel of the car in the situation of a direct danger to the life and limb of the police officer BC. This version of events was supported by other evidence collected in the case, and in particular, by the expert evidence. According to the prosecutor, the police officer DD had not exceeded his authority in the situation when PB had not obeyed police commands and had continued carrying out dangerous car manoeuvres. The police officer DD had used his firearm in order to protect the life of his fellow officer PB and had aimed at the wheels of the car. He could not have predicted that one of the bullets would rebound against the surface of the road and would hit the driver. 31. On 18 December 2007 the applicant filed a private bill of indictment against the police officer DD, alleging that he had exceeded his authority when using his firearm. She claimed that at the critical time there had been no direct danger to the life and limb as PB had been driving away from the scene. 32. Prosecutor JJ was heard as one of many witnesses. She testified that when she arrived at the scene of the incident officers DD and BC had already left. Some other police officers, including senior ones, were present. The prosecutor asked in vain for the firearm to be handed over. She alleged that the police failed to respect the relevant procedures because they had not waited for her arrival before commencing investigative work. Later, she went to the hospital where officers DD and BC had been taken. Certain police officers had objected to the questioning of BC directly after the incident but the questioning had taken place. It was terminated in the early hours of the morning. The prosecutor excluded that the questioning had been influenced by third parties. The prosecutor wanted to hear also officer DD. After consultation with a doctor she decided not to question him. 33. On 22 May 2009 the Olsztyn Regional Court acquitted officer DD. It considered credible the evidence of the accused as it had been confirmed by various expert reports in the case and the evidence of officer BC. The credibility of the statements of officer BB had been supported by the evidence of prosecutor JJ who had questioned her directly after the incident and the police psychologist EKS. It appeared from the protocol that prosecutor JJ had arrived at the scene of the incident at 22.05 hours, which was just over one hour after the incident. There were no indications that her arrival at the scene had been delayed or that some evidence at the scene had been destroyed. The court held that there had been no evidence indicating that the police had obstructed or interfered with the investigation into the incident. 34. Two other police officers confirmed the circumstances concerning the pursuit of the Ford and the dangerous manoeuvres of the driver. They had not seen the moment of shooting. The court attached significant weight to the evidence of the expert in ballistics and the results of the reconstruction of the incident. They confirmed that PB had been shot in his head with a bullet ricocheting from the road. The court noted that telephone calls between officers DD and BC were normal. It also noted that that officer DD had worn a vest with a sign “Police” on it. 35. The court held that the accused had not breached the relevant rules concerning the use of firearms by the police. The use of a firearm had been justified under section 17 § 1 (6) in conjunction with section 17 § 1 (1) of the Police Act. PB had exposed third parties to direct danger to their life and limb by his dangerous driving. Subsequently, he posed danger to the life of the police officers when they had attempted to arrest him. In conclusion, the accused was acquitted. 36. The applicant appealed. She argued that the use of firearms had been unlawful since at the critical time PB had not endangered the life of the police officers. In addition, the police officer DD had not complied with the rules set out in the 2005 Ordinance as he had failed to give a verbal warning and to fire a warning shot. 37. On 13 October 2009 the Białystok Court of Appeal upheld the firstto fire a warning shot. He had been solely required to give a verbal warning “police” which he had done. 38. The applicant filed a cassation appeal. She claimed that the use of firearm had been unlawful. 39. On 22 September 2010 the Supreme Court quashed the Court of Appeal’s judgment and remitted the case. It found that the lower court had failed to address the argument of the private prosecutor (the applicant) that officer DD had not been exempted from the requirement to fire a warning shot. The Supreme Court found that at the time of firing there had been no direct danger to the life or limb of the police officers. It had been established by the lower courts that at the critical time the Ford had been driving away from the scene. This situation was controlled therefore by section 17 § 1 (6) of the Police Act (direct pursuit of a person). Under the relevant provisions of the 2005 Ordinance in such a case the police officer had been required to give a verbal warning and to fire a warning shot. The Supreme Court accepted that the first of these requirements appeared to have been complied with since officer DD had given a warning “stoppolice” and had kept his right hand on the holster. There was no doubt, however, that the second requirement (warning shot) had not been complied with. 40. On 10 March 2011 the Court of Appeal again upheld the Regional Court’s judgment. Following the instructions of the Supreme Court, it concentrated its review on the lawfulness of the use of a firearm. The Court of Appeal found that the dynamic nature of the incident did not permit to distinguish precisely between an attempt on life of the police officers and the pursuit of the driver. In fact, these two elements of the case overlapped considerably. It was important to note that officer DD had aimed at the wheel and had had no intention of causing injury. The Court of Appeal noted that since the incident unfolded in a matter of seconds it would have been unrealistic to expect of officer DD to comply strictly with the 2005 Ordinance by giving first a verbal warning and then firing a warning shot. It was important to note that officer DD had given a warning “stop-police” which had been evidently ignored. The Court of Appeal found that the use of the firearm in order to immobilise the Ford had been justified by the circumstances. Although, the use of firearms by the police had to comply with the relevant regulations it was necessary to have regard to specific circumstances of each case. The court held that officer DD had not abused his authority in such a way that his criminal liability was called for. The Court of Appeal, contrary to the lower court, found that at the critical time the actions of PB had entered the phase of “escaping”. Accordingly, from the formal point of view specified in the 2005 Ordinance the use of a firearm should have been preceded by a verbal warning and a ’s failure to comply with these rules did not amount to a criminal offence since there had been no causal link between this omission and the unfortunate result of the use of a firearm. Furthermore, there was no criminal intent in the behaviour of officer DD. Accordingly, officer DD could not be held criminally liable for the offence of abuse of authority. 41. The applicant appealed. She argued that the Court of Appeal had failed to heed the instructions of the Supreme Court. She also alleged that the Court of Appeal had wrongly found that the use of the firearm had been justified despite the failure to give a verbal warning and to fire a warning shot. Lastly, she alleged a breach of Article 2 § 2 (b) of the Convention. In this respect, she claimed that the Court of Appeal had found that shooting at the escaping car had been justified and that the firearm could be used despite a failure to comply with all relevant requirements. She relied on Nachova v. Bulgaria. 42. On 15 December 2011 the Supreme Court dismissed the applicant’s cassation appeal. It noted that the Court of Appeal had followed its instructions. In particular, the Court of Appeal found that the firearm had been used at the time when PB began to escape the location. Secondly, the Court of Appeal analysed whether the failure to comply with the relevant requirements of the 2005 Ordinance applicable to the situation of escaping could have resulted in holding officer DD criminally liable for the offence of the abuse of authority. The Supreme Court noted that one of the constitutive elements of this offence was acting to the detriment of a public or individual interest. However, the Supreme Court concurred with the lower court that officer DD had not intended to deprive the victim of his life and had not been able to foresee that his action would result in such an unfortunate outcome. 43. With regard to the applicant’s argument concerning the failure to fire a warning shot, the Supreme Court noted that the lower court had acknowledged this failure, but had found no causal link between the latter and PB’s death. The issue of a verbal warning had been already determined in the earlier judgment of the Supreme Court. Lastly, the Supreme Court dismissed as unfounded the argument concerning a breach of Article 2 § 2 (b) of the Convention. A deprivation of life shall not be regarded as incompatible with this provision if it resulted from the use of force which was absolutely necessary in order to effect a lawful arrest. 44. The Supreme Court noted that the use of a firearm in respect of an escaping driver could be justified by the danger to which he exposed other persons. The Strasbourg case-law indicated that the police should fire at the tyres, but not at the windows and the body of an escaping car. In the present case these conditions were met. It was justified to fire at the tyres of the escaping car because its driver had not reacted to police orders and created danger for the life and limb of the other persons on the road as well as to the police officers attempting his arrest. 45. Section 16 of the Police Act of 6 April 1990 (Ustawa o Policji) reads, in so far as relevant: “1. If a lawful order given by a police authority or police officer has not been complied with, a police officer may apply the following coercive measures: 1) physical, technical and chemical means to restrain or escort persons or to stop vehicles; 2) truncheons; 3) water cannons; 4) police dogs; 5) rubber bullets fired from firearms. 2. Police officers may apply only such coercive measures as correspond to the exigencies of a given situation and are necessary to ensure that their orders are obeyed.” 46. Section 17 of the Police Act provides: “1. If the coercive measures mentioned in section 16 (1) prove insufficient, or their use in the circumstances is not possible, a police officer may use firearms exclusively: 1) in order to fend off a direct and illegal attempt on the life, health or liberty of a police officer or other person, or to prevent activities directly related to such an attempt, 2) against a person who fails to obey an order to drop immediately a weapon or another dangerous instrument whose use poses a threat to the life, health or liberty of a police officer or other person, ... 6) in the direct pursuit of a person in relation to whom the use of firearms was lawful under paragraphs 1-3 or 5, or who is reasonably suspected of committing a crime, an attempted act of terrorism, abduction in order to obtain a ransom or other demand, mugging, robbery, violent assault, intentional serious bodily injury, rape, arson or other intentional threat to public security, life and/or health, ... 3. Firearms shall be used so as to cause minimum damage to the person targeted, and without any intention of depriving that person of his or her life and without endangering the life or health of others. 4. The Council of Ministers shall issue a resolution defining the conditions and operational procedural requirements for the use of firearms by the organised Police detachments mentioned in paragraph 2.” 47. The Ordinance of the Council of Ministers of 19 July 2005 (“the 2005 Ordinance”) on the specific conditions of the use of firearms by the police specified in § 3.1 that prior to the use of a firearm a police officer shall (1) give a verbal warning “police”, (2) give a verbal warning “stop – I shoot” and (3) fire a warning shot. Pursuant to § 3.2 of the Ordinance the above requirements were not applicable to situations foreseen in section 17 § 1 (1), (3), (5) and (8) of the Police Act.