The father’s failure to participate in the investigation regarding his son’s murder by the police violated his right to life.

JUDGMENT

Fountas v. Greece 3-10-2019 (no. 50283/13)

see here

SUMMARY

The police shot the applicant’s son.

According to the ECtHR, the national authorities had not dealt with the case to the extent required, although they had fulfilled their obligation to carry out a thorough investigation into the killing, which led to the finding that the police had acted in self-defense.

In particular, the applicant did not have access to the criminal record or the separate internal police inquiry and was only informed of his son’s death following a forensic examination, although the body of the deceased had been located earlier. Violation of Article 2 (right to life) of the European Convention on Human Rights due to the authorities’ failure to include the applicant’s father in the investigation into the death of his son.

PROVISIONS 

Article 2

Article 6

PRINCIPAL FACTS

The applicant, Georgios Fountas, is a Greek national who was born in 1934 and lives in Athens (Greece).

The applicant’s son, Lambros Fountas, born in 1975, was shot by police in March 2010 after officers on patrol stopped to carry out a random check of a parked car with two people in it in the early hours of the morning. The version of events accepted by the Athens public prosecution office was that the officers had been fired on and had shot back, killing Mr Fountas. The applicant does not accept that recounting of the incident and says that not all avenues of investigation were followed.

The authorities carried out a preliminary investigation, which included a ballistics examination and a post mortem. The applicant states that he was only informed about the autopsy after it had been carried out and was not able to appoint an external expert to attend it. In April 2010 an anti-terrorism police unit also sent a report on a terrorist group called Revolutionary Fight to the Athens public prosecution office. The applicant’s son had allegedly belonged to that group.

In March 2010 the police began a sworn administrative inquiry, which was closed in June 2011 after a finding that the police officers had acted lawfully to defend themselves.

In June 2010 the applicant and a relative lodged a criminal complaint with prosecutors against the person or persons responsible for Lambros’s death but in January 2012 the complaint was rejected on the grounds that the police had acted in self-defence. An appeal by the applicant was dismissed by the public prosecutor at the Court of Appeal in February 2013.

Throughout the domestic proceedings the applicant requested access to many documents in the case files after making his criminal complaint. In particular, he asked for material related to the sworn administrative inquiry, which he eventually received in 2016.

THE DECISION OF THE COURT

The investigation

The Court first held that the authorities’ investigation had been prompt, involving a preliminary investigation, including an autopsy, the questioning of witnesses and a ballistic examination, which had begun on the morning of the death and lasted until April 2010, with the whole process ending with the decision of the Court of Appeal prosecutor of February 2013.

The investigation had also been carried out by an institutionally independent authority, the Athens public prosecution office.

The applicant had complained about various oversights, omissions and inconsistencies, such as there being no conclusion about which bullet had hit the passenger car the applicant’s son had been in or differences in the police officers’ accounts of how many shots they had fired. He had also complained about the lack of a reconstruction of the events and had advanced various hypotheses as to what had happened on the night his son had been killed.

The Court examined these issues in detail, including the official finding that the police officers had acted in self-defence. On the latter point, it noted that the public prosecutors had assessed a number of relevant issues, such as the officers’ professional obligations, the degree of danger they had faced and the circumstances of the incident. It found their consideration of the use of force had been carried out in a manner that was compatible with the requirements of Article 2.

In conclusion, the Court did not perceive any shortcomings that could call into question the overall adequacy of the investigation by the domestic judicial authorities.

Applicant’s involvement

The Court went on to examine whether the applicant had been afforded access to the case file to the extent necessary to safeguard his legitimate interests.

It observed that under Greek law injured parties did not explicitly have access to preliminary inquiry case files, however, they could appeal against the orders of public prosecutors at the Court of First Instance. Indeed, the applicant had made use of such rights, submitting various memoranda to the investigating authorities and expressing his opinion. He had also been able to lodge an appeal against the first-instance prosecution decision.

The Court also noted that the applicant had been granted access to the criminal investigation dossier but that the authorities had never informed him of that permission. Because he had not had access to the case file, he had only been partially able to exercise his right of appeal against the first prosecution decision and had not been able to rebut effectively the conclusions reached in it.

The Court also noted that he had sought access to the sworn administrative inquiry documents in 2012, however, he had only received the papers in 2016. That delay had been all the more problematic as the prosecution decision to end the investigation had referred to the sworn inquiry.

Lastly, the Court observed that the applicant had not been informed of his son’s death until after the autopsy had been performed, even though the deceased’s body had been identified earlier. That had left him unable to appoint a technical expert to attend the procedure on his behalf. The Court was not convinced that the authorities had fulfilled their obligation to take reasonable steps to inform surviving members of the family of the death of the applicant’s son. The authorities had thus failed to ensure that the investigation received the necessary level of public scrutiny to safeguard the interests of the next-of-kin in the proceedings.

The Court concluded that the investigation into Lambros Fountas’s death had been ineffective as it had lacked an important guarantee, that of the involvement of the deceased person’s family. There had therefore been a violation of the procedural aspect of Article 2 owing to the applicant’s lack of involvement in the investigation.

Other articles

Given its findings under Article 2, the Court saw no need to examine the applicant’s complaint under Article 6.

Just satisfaction (Article 41)

The Court held that Greece was to pay the applicant 15,000 euros (EUR) in respect of non-pecuniary damage.


ECHRCaseLaw

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