Right to Life and Use of Force by Police

Leonidis v Greece [2009] ECHR 43326/05 (8 January 2009) In the case of Leonidis v Greece, the European Court of Human Rights considered art 2 of the European Convention on Human Rights in the context of the police shooting of an 18 year old male (Victim).

In making its decision, the Court considered whether:

  1. the death of the applicant’s son amounted to a breach of the substantive requirements of art 2 of the Convention; and
  2. the investigation into the incident was adequate and effective, as required by art 2 of the Convention.

The Court unanimously found that there had been a violation of art 2 in that the use of lethal force by a police officer was not justified in the circumstances.  With a vote of 6 to 1, the Court found that the investigation into the incident was adequate.

This case will be particularly informative for the interpretation and application of s 9 (right to life) of the Charter.


The applicant’s son was walking along a street with two friends.  Two plainclothes police officers on patrol duty in an unmarked police vehicle noticed the three young men.  One of the police officers, GA, decided to undertake a random identity check.  As the police officers approached the three men, the men ran away.  GA ran after the Victim and caught him.  While holding a loaded revolver with no safety catch in his right hand, GA pushed the Victim against a car with his left hand and immobilised him by forcing him to raise his hands and place them on the car roof while he was aiming his gun towards the sky.  With his left hand, GA twisted the Victim’s left wrist behind his back to handcuff him.  At this point, the Victim jabbed GA with his right elbow in the right side, causing him sharp pain.  Reacting to the pain, GA bent forward, and while he was drawing himself back up, his revolver went off, firing a single shot in the lower part of the Victim’s right ear, instantly killing him.  In the meantime, the other police officer, CT, had arrived close to the two men and partially witnessed the incident.

A criminal investigation followed.  A preliminary inquiry was undertaken within a few hours of the shooting.  This involved an inspection of the area, the drafting of an inspection report and the drawing of a sketch plan.  Also, a statement was taken from CT a few hours later, a crime scene reconstruction was conducted in the presence of the police prosecutor and a report was drawn up.  On the same day, a forensic post-mortem examination was performed by a forensic medicine expert.  The criminal police laboratory also published a report, albeit inconclusive, on the range at which the bullet had been fired, within about 6 weeks of the applicant’s request.

The applicant contended that his son had been killed in circumstances where resort to lethal force was not justified.  The applicant also complained that the authorities had failed to carry out an adequate, effective and prompt investigation into the incident.



Two questions were before the Court:

  1. Did the death of the Victim amount to a breach of the substantive requirements of art 2 of the Convention?
  2. Was the investigation into the incident adequate and effective, as required by art 2?

Right to Life and the Use of Lethal Force

The Court considered the general principles underlying the right to life, stating that art 2 safeguards the right to life and therefore ranks as one of the most fundamental provisions in the Convention, enshrining one of the basic values of democratic societies.  In view of the fundamental nature of the right to life, the circumstances in which deprivation of life may be justified must be strictly construed.  Any use of force by State security forces must be no more than ‘absolutely necessary’ and strictly proportionate in the circumstances.

Accordingly, the legitimate aim of effecting a lawful arrest can only justify putting human life at risk in circumstances of absolute necessity.  The Court stated that there can be no such necessity where the person to be arrested poses no threat to life or limb and is not suspected of having committed a violent offence, even if refraining from using lethal force means losing the opportunity to arrest the fugitive.

In addition to setting out the circumstances when deprivation of life may be justified, the Court considered that art 2 implies a primary duty on the State to secure the right to life by putting in place an appropriate legal and administrative framework defining the limited circumstances in which law-enforcement officials may use force and firearms, in light of the relevant international standards.

Furthermore, law enforcement agents must be trained to assess whether use of firearms is absolutely necessary with due regard to the pre-eminence of respect for human life as a fundamental value.

Applying these principles to the facts in this case, the Court made the following comments:

  • After the Victim had been immobilised, the police officer had no reason to keep hold of his gun, especially with his finger on the trigger.  This was especially so considering the Victim was not holding a weapon and was not in any way threatening the police officer’s life or limb.
  • The police officer had not shown the prudence and discipline expected from a police officer of his experience.
  • The legislation which governed use of weapons by agents of the State, was recognised to be obsolete and inadequate.  This lack of clear rules might also explain why the police officer acted rather irresponsibly, which he would probably not have done had he received the proper training.

The Court found that the State violated article 2 because it had not done all that could be reasonably expected of it to avoid the real and immediate risk to life in hot-pursuit police operations.

Adequate and Effective Investigation

The Court reiterated that art 2 of the Convention requires that some form of effective official investigation be undertaken when individuals have been killed as a result of force, the purpose being to secure the effective implementation of the domestic laws safeguarding the right to life.

In those cases involving State agents or bodies, investigation is also required to ensure their accountability for deaths occurring under their responsibility.

The authorities must have taken reasonable steps to secure the evidence concerning the incident, including eyewitness testimony and forensic evidence.  Promptness and reasonable expedition is implicit in this context.

The Court considered that, in the present case, the procedural obligation to conduct an effective investigation had been discharged.  It was relevant that three separate sets of proceedings were conducted in order to establish the facts, identify those responsible, and secure their appropriate punishment.  Preliminary investigations were carried out promptly and were capable of ascertaining the circumstances of the case.


Relevance to the Victorian Charter

This case is relevant to the interpretation and application of s 9 of the Charter which provides that every person has the right to life and not to be arbitrarily deprived of life.  In particular, it confirms that lethal force, particularly firearms, may only be used by law enforcement officers as a last resort, where absolutely necessary and strictly proportionate.

This is also consistent with the jurisprudence of the UN Human Rights Committee and several international instruments.  For example, art 54 of the UN Standard Minimum Rules for the Treatment of Prisoners states that prison officers 'shall not … use force except in self-defence or in cases of attempted escape, or active or passive physical resistance … . Officers who have recourse to force must use no more than is strictly necessary'.  Similarly, arts 4 and 5 of the UN Basic Principles of the Use of Force and Firearms by Law Enforcement Officials provide that law enforcement officials shall only use force and firearms where unavoidable and that where force is used, the officials must 'exercise restraint … and act in proportion to the seriousness of the offence and the legitimate objective to be achieved … [and] minimize damage and injury, and respect and preserve human life'.  Article 9 further states that firearms should only be used 'when strictly unavoidable in order to protect life'.

The decision is available at http://www.bailii.org/eu/cases/ECHR/2009/5.html.

Maryam Minai is on secondment to the Human Rights Law Resource Centre from Mallesons Stephen Jaques