CASE OF LEPARSKIENĖ v. LITHUANIA
(Application no. 4860/02)
7 July 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Leparskienė v. Lithuania,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Boštjan M. Zupančič,
Egbert Myjer, judges,
Ineta Ziemele, appointed to sit in respect of Lithuania,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 16 June 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
On 14 May 2001 a forensic medical expert report was ordered to establish how severely J. Leparskis was injured. The report was received on 20 July 2001. On 15 May 2001 police officer T.B. was questioned and his service gun and four bullets were seized; on 16 May the bullet extracted from the head of J. Leparskis was seized from the hospital. On 21 May the authorities ordered the forensic ballistic analysis; it was concluded on 19 September 2001 and established that the bullet extracted from the head of J. Leparskis could have been fired from T.B.'s service gun.
“The circumstances of the incident have been fully clarified and the evidence rightly assessed. The evidence shows that [T.B.] used his firearm ... with the aim of stopping the vehicle the driver of which had not complied with the lawful requirement to stop; at the moment when [T.B.] used his gun there was no danger to life or limb for him or anyone else, as the car had already driven some forty metres from the point where it had been stopped; furthermore the policemen were not precluded from chasing the offender in the police car, in order to stop him without recourse to firearms. (...) [T.B.] endangered the life of the car passengers, exceeded his official duties and consciously acted in defiance of his duty of care, set out in Article 25 of the Police Activities Act ... which defines the conditions for using firearms as an exceptional measure of coercion. (...)
By contrast, there is no indication that [T.B.] breached Article 25 § 4 of the Police Activities Act, as he had fired his shots at the tyres of the car which had already moved away from the people. Nor is there any evidence that [T.B.] knew about the presence of the minors in the car, that he aimed at causing the death of the car driver or was indifferent to the fact that he might cause it.
[T.B.] had been familiar with all the normative acts regarding his duties, inter alia those determining the use of [firearms]; he had undergone shooting training. However, [T.B.] irresponsibly overestimated his skills and acted unlawfully, aiming at the tyres of the car which was swiftly moving away. Such actions were correctly classified as manslaughter.”
“The general grounds for imposition of punishment provided for in Article 54 of the Criminal Code require a court to impose a punishment within the limits provided for in the sanction of an article of the criminal law which enshrines liability for the criminal act; it also requires it to take into consideration the extent to which the activity was dangerous, as well as its motivation and objectives, the form of guilt, the personality of the accused, and the circumstances relieving or aggravating the liability. The [lower] court was following the provisions enshrined in the said norm and did not make a mistake; the court, upon taking into consideration the circumstances positively characterising the personality of the convicted person, reasonably imposed a punishment near the medium of the punishment provided for in the sanction for negligent deprivation of life (...). By suspending the sentence of imprisonment for the negligent crime committed by the convicted person the court was following the rules provided for in Article 75 of the Criminal Code. The punishment imposed is relevant to its purpose (...) and does not contradict the principle of justice. Therefore, there is no ground to conclude that in the present criminal case while imposing punishment on the convicted person criminal law was not applied properly.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
“1. When other coercive measures are ineffective, the police officer shall have the right to use a firearm as an extraordinary measure.
2. The police officer shall have the right to use a firearm against persons in the following cases:
1) when defending himself or another person from an actual or intended criminal attempt which poses a direct threat to life or limb;
2) when attempting to arrest a person who has committed a criminal act and who actively evades arrest, if it is impossible to arrest him/her in any other way, as well as in cases when the person refuses to comply with lawful instructions to put down a weapon or another thing with which it is possible to injure an individual, if a threat is posed to the life or limb of the police officer or another individual and it is impossible to disarm him/her in any other way. ...
3. The police officer shall have the right to use a firearm against a vehicle ... .
4. It shall be prohibited to use a firearm in public gathering places, if it endangers other people; against pregnant women, as well as against persons who are visibly disabled, and against minors, if the police officer knows their age or their appearance corresponds to their age, except in cases when the said persons resist in a manner dangerous to human life or limb ... ”.
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
A. The parties' submissions
1. The applicant
“1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
2. The Government
B. The Court's assessment
1. General principles
the other hand, the national courts should not under any
circumstances be prepared to allow life-endangering offences to go
unpunished. This is essential for maintaining public confidence and
ensuring adherence to the rule of law and for preventing any
appearance of tolerance of or collusion in unlawful acts. The Court's
task therefore consists in reviewing whether and to what extent the
courts, in reaching their conclusion, may be deemed to have submitted
the case to the careful scrutiny required by Article 2 of the
Convention, so that the deterrent effect of the judicial system in
place and the significance of the role it is required to play in
preventing violations of the right to life are not undermined
(see Öneryıldız, cited above, § 96).
2. Application of these principles to the present case
52. The applicant's submission concerning the fact that police officer T.B. should have been convicted of murder and not manslaughter and that his punishment was inadequate cannot succeed in the Court's view. In this connection, it reiterates that Article 2 does not give an applicant the right to have a third party prosecuted or sentenced for a criminal offence or an obligation for the prosecution to result in conviction, or indeed in a particular sentence (see paragraph 50 above). On the other hand, the Court would also state that while it is true that it is not its task to address issues of domestic law concerning individual criminal responsibility, or to deliver guilty or not guilty verdicts, in order to determine whether the respondent Government have fulfilled their international law responsibility under the Convention the Court must have regard to the Lithuanian courts' considerations while convicting the police officer and to the punishment imposed on him as a result. While doing that, the Court should grant substantial deference to the national courts in the choice of appropriate sanctions for the death caused by the State agent. However, it must still exercise a certain power of review and intervene in cases of manifest disproportion between the gravity of the act and the punishment imposed (see Ali and Ayşe Duran v. Turkey, no. 42942/02, § 66, 8 April 2008).
FOR THESE REASONS, THE COURT UNANIMOUSLY
2. Dismisses the Government's preliminary objection concerning the exhaustion of civil domestic remedies as regards the procedural aspect of Article 2 of the Convention;
Done in English, and notified in writing on 7 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall