EUROPEAN COURT OF HUMAN RIGHTS

293

24.4.2008

Press release issued by the Registrar

CHAMBER JUDGMENT
JUOZAITIENĖ AND BIKULČIUS v. LITHUANIA

The European Court of Human Rights has today notified in writing its Chamber judgment[1] in the case of Juozaitienė and Bikulčius v. Lithuania (application nos. 70659/01 and 74371/01).

The Court held unanimously that there had been:

• a violation of Article 2 (right to life) of the European Convention on Human Rights concerning the shooting by a police officer of the applicants’ sons; and,
• a violation of Article 2 concerning the failure to conduct an effective investigation into the shooting.

Under Article 41 (just satisfaction) of the Convention, the Court awarded each applicant 30,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. (The judgment is available only in English.)

1.  Principal facts

The applicants, Regina Juozaitienė and Jonas Bikulčius, are Lithuanian nationals who were born in 1940 and 1935 respectively and live in Kaunas (Lithuania). They are, respectively, the mother and father of Dalius Juozaitis and Darius Bikulčius.

The case concerned the shooting by a police officer of Dalius Juozaitis and Darius Bikulčius while they were sitting on the back seat of a car driven by a police suspect.

According to the domestic courts, at about 11 p.m. on 24 July 1998, three policemen on patrol (including SG, the officer who shot the applicants’ sons), received orders to arrest the driver of a Ford Escort who was driving dangerously. They joined another police car in chasing the car, which was travelling at about 130 to 140 kilometres per hour. The two police cars had their lights and sirens on, and tried to block the Ford Escort, while giving the driver orders to stop. The driver tried to escape, attempting to push the police cars off the road and ignoring warning shots, before losing control of the car, coming to a halt, reversing into one of the police cars and swerving off in another direction. Police officers shot at the car 11 times, hitting the car’s tyres, wheel rims, seats and windows. Two of SG’s shots killed the applicants’ sons. The car was ultimately forced to stop after the radiator was punctured by a shot from another officer.

The exact number of people in the car was unknown; however, SG admitted seeing at least one passenger.

The driver, who was drunk, was arrested and the applicants’ sons were found dead inside the car, each with a single gunshot wound in the back.

The Lithuanian Government maintained that the various shots were fired from a distance of about 11.4 to 27.5 metres from the car, while the applicants alleged that SG fired his shots at a distance of two to three metres.

The applicants also questioned the Government’s argument that the streets at the time of the events had been “bustling” on a Friday night with people and traffic; they asserted that the streets were usually empty at around midnight and pointed out that no eyewitnesses had been called to give evidence during the inquiries.

On 25 July 1998 criminal proceedings were brought against the car driver for manslaughter and for resisting police orders. The applicants submitted civil claims for damages against the police and were recognised as complainants in the criminal proceedings. On 15 March 1999 Kaunas City District Court sentenced the car driver to six years’ imprisonment for resisting police orders and acquitted him of manslaughter, on the ground that the deaths had been caused by the “lawful actions of a third person who had used an official weapon”. That judgment was upheld on appeal. The applicants’ civil claims were not examined. The court nonetheless noted that it was open to them to bring civil proceedings.

Criminal proceedings brought against SG (on 18 May 1999) for the manslaughter of the applicants’ sons and for exceeding his authority were ultimately discontinued, on the ground that there was no evidence that any crime had been committed. The applicants appealed unsuccessfully.

2.  Procedure and composition of the Court

The applications were lodged with the European Court of Human Rights on 12 and 13 April 2001. On 19 May 2005 the Chamber joined the applications and declared them partly admissible.

Judgment was given by a Chamber of seven judges, composed as follows:

Françoise Tulkens (Belgian), President,
Antonella Mularoni (San Marinese),
Jean-Paul Costa (French),
Ireneu Cabral Barreto (Portuguese),
Rıza Türmen (Turkish),
Dragoljub Popović (Serbian),
Nona Tsotsoria (Georgian), judges,

and also Sally Dollé, Section Registrar.

3.  Summary of the judgment[2]

Complaints

Relying on Article 2, the applicants alleged that their sons were unjustifiably killed by the police and that there was no effective investigation into the circumstances of their deaths.

Decision of the Court

Article 2

Concerning the death of the applicants’ sons

The Court found that the victims were killed by shots fired by SG, whose aim was to stop the car and arrest the driver.

Concerning whether the force used was “absolutely necessary”, the Court had to carry out its assessment on the basis of contradictory accounts of the events, which included a number of unanswered questions. However, even assuming that the facts, as outlined by the domestic authorities, represented a credible account of the events, a number of elements, and indeed gaps, in the official account weighed heavily against the State. By directing fire at the Ford Escort in a sustained and somewhat erratic manner, the officers were running a very high risk of killing the passengers and should have reasonably foreseen that risk. Indeed, two bullets fired by officer SG proved to be fatal.

Such a high degree of risk to life could only have been justified if guns had been used as a last resort to avert a real danger in the event of the car driver escaping. The Court did not find it apparent that the danger to other people or traffic safety was as obvious as the Government argued. It was not clearly established by the domestic authorities that the streets of a medium-sized town at around midnight were full of people who could have been exposed to the danger in question. In addition, no eyewitnesses to the chase were identified during the investigation. The Court therefore did not find that the escaping driver posed an obvious danger to the public. In any event, even taking into account the fact that his actions were potentially dangerous, the Court did not consider that the level of the threat required that he had to be stopped immediately by gunfire.

The Court acknowledged that the police officers tried to use alternative methods to stop the car. However, the need to continue shooting at the vehicle appeared to have been reduced by the fact – of which at least one officer had been aware – that the damage to the car’s radiator would have eventually brought it to a halt.

The Court took account of the fact that the applicants’ sons were killed in the course of an unplanned operation which gave rise to developments to which the police were called upon to react without prior preparation. Nevertheless, the risk to the lives of the car passengers, considered in the light of the absence of an immediate danger posed by the driver and the ensuing lack of urgency in stopping the car, pointed to a measure of impulsiveness in the way the police officers handled the situation. The Court considered that their actions indicated a lack of caution in the use of firearms, contrary to what should be expected from law-enforcement professionals.

Finding that the deaths of the applicants’ sons resulted from the use of force which was more than absolutely necessary in order to effect a lawful arrest, the Court held that there had been a violation of Article 2 as regards the death of the applicants’ sons.

Concerning the inquiry into the death of the applicants’ sons

The Court noted that the investigation into the lawfulness of the shooting was not opened until almost 10 months after the incident. It was true that some fact-finding was carried out in the context of the criminal proceedings against the driver. However, those proceedings only dealt with the responsibility of the driver and made no assessment as to the circumstances and lawfulness of the use of force by SG. There had not therefore been a prompt investigation, as required by Article 2.

In addition, the exact timing and duration of the chase remained unclear, as did the situation in the streets of Kaunas at the relevant time, elements which were not only important for shedding light on the incident in general, but which were essential for assessing the necessity of using lethal force.

The Court further noted that the domestic authorities had concentrated their inquiry on one version only – that presented by the police – without discussing any further hypotheses, such as those raised by the applicants. Most significantly, while the applicants expressed their doubts regarding the distance of the shooting, those doubts had not been scrutinised. No evidence had been submitted to the Court to show that the only possible account of events was that given by the police; the Government had not submitted any expert opinions on the correlation between the distance of the shooting and the trajectory of the bullets, or any similar evidence.

The Court therefore concluded that there had been a violation of Article 2 concerning the failure to carry out an effective investigation into the deaths of the applicants’ sons.

***

The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.

[1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17‑member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.

[2] This summary by the Registry does not bind the Court.