Homicide committed by a state agent not in the course of official duties or outside the scope of professional activities

The state is liable for death resulting from the actions of state agents, regardless of whether they acted in an official capacity or as private individuals.

• Emars v. Latvia, Para 87

The Court has already established the state’s responsibility for cases of death caused by state agents acting in an official capacity (Ramsahai v. the Netherlands) or in a private capacity (Sašo Gorgiev v. the FYRM).

• Emars v. Latvia, Para 87

The victims were shot by a police officer who was not performing his official duties. The incident occurred during a trip that was unrelated to a planned police operation or spontaneous pursuit. Therefore, the actions of the police officer as a private individual, which were of a serious criminal nature, cannot in principle be related to the State’s responsibility under the substantive aspect of Article 2 of the Convention simply because he was a public servant.

• Gorovenky and Bugara v. Ukraine, Para 31

However, Article 2 of the Convention obliges the state not only to refrain from intentional and unlawful deprivation of life, but also to take appropriate measures to protect the lives of those under its jurisdiction. It may apply in cases involving the requirement to provide personal protection to one or more individuals who can be identified in advance as potential victims of acts that could lead to death, and in cases involving the duty to provide general protection to society. In the latter circumstances, such a direct obligation covers a wide range of areas and, in particular, will arise in the context of any activity, whether public or not, that may relate to the right to life.

• Mehmet Şentürk and Bekir Şentürk v. Turkey;
• Gorovenky and Bugara v. Ukraine, Para 32;
• Paul and Audrey Edwards v. the UK, Para 54;
• Enukidze and Girgvliani v. Georgia, Para 284;
• Mastromatteo v. Italy, Paras 67-68;
• Maiorano and Others v. Italy, Para 107;
• Ciechońska v. Poland, Paras 52, 63;
• Abdullah Yilmaz v. Turkey, Para 56;
• Oneryildiz v. Turkey [GC], Para 71;
• Osman v. the UK, Para 115;
• L.C.B. v. the UK, Para 36

The State’s obligation to guarantee the right to life includes taking reasonable measures to ensure the safety of individuals and, in the event of serious injury or death, the existence of an effective independent judicial system that will guarantee legal means capable of establishing the facts, bringing those responsible to justice, and ensuring adequate compensation for the victims.

• Gorovenky and Bugara v. Ukraine, Para 34;
• Ciechońska v. Poland, Paras 52, 63, 66

Although the guilt of police officer D. in the killing of two persons cannot be denied, the national authorities have repeatedly acknowledged that police officer D.’s superiors failed to properly investigate his character and —  despite previous disturbing incidents involving police officer D. — allowed him to carry a weapon, which led to the incident in question.

• Gorovenky and Bugara v. Ukraine, Para 35

National law clearly prohibits the issuance of weapons to police officers who do not have adequate conditions for their safe storage. However, an official investigation found that the place where D. kept his weapon at home had never been checked in terms of storage security. Therefore, the lack of a safe storage place could have been the reason why D. carried his weapon with him at all times, both while performing his official duties and during his free time, which was one of the reasons for the fatal outcome of D.’s altercation with his victims.

• Gorovenky and Bugara v. Ukraine, Para 36

In civil proceedings for damages, the national court ignored the above conclusions and pointed to the absence of a causal link between the police officers’ failure to comply with the applicable law and their failure to properly assess the situation when granting their subordinates’ permission to carry weapons and the fatal incident involving such a subordinate. For the national authorities, the fact that police officer D. was not on duty was sufficient to exclude any possible liability for his superiors, despite the clear findings to the contrary reached in the internal investigation and the materials of the criminal case. The applicants’ arguments to the contrary were not considered.

• Gorovenky and Bugara v. Ukraine, Para 37

States are obliged to set high professional standards within their law enforcement systems and to ensure that persons serving in such systems meet the necessary criteria. In particular, when issuing firearms to police officers, not only should the necessary technical training be provided, but also a particularly careful selection of officers who will be allowed to carry such firearms.

• Gorovenky and Bugara v. Ukraine, Para 38

A police officer who deliberately shot two people with his service weapon received that weapon in contravention of existing national regulations. For example, no checks were made as to where he would store it when not on duty, and his character was not properly assessed considering his previous disciplinary offences.

• Gorovenky and Bugara v. Ukraine, Para 39.