Murder of 9 students and a teacher by an armed student. Police inaction to seize the weapon despite alarming indications. Violation of the right to life


Kotilainen and others v. Finland 17.09.2020 (app. no. 62439/12)

see here


The case of Kotilainen and Others v. Finland (application no. 62439/12) concerned complaints about
failures by the authorities to protect the lives of the victims of the 2008 school shooting in the town
of Kauhajoki, in which 10 people were killed.

Nine students and a teacher were killed during the shooting, carried out by a student at the school
who then killed himself.

The Court found that the authorities could not have known of a real and immediate risk to the life of
the applicants’ relatives.

However, the police had known of posts on the Internet by the student, had interviewed him prior
to the attack, and had considered, but decided against, confiscating his weapon. Such a confiscation
would have been a reasonable precaution, which had also been allowed by law. The failure to take
that step meant the authorities had not fulfilled their special duty of diligence flowing from the
particularly high level of risk inherent in any misconduct involving the use of firearms.


Article 2


The applicants are 19 Finnish nationals who are relatives of the nine students and a teacher who
were killed during the school shooting on 23 September 2008.

The perpetrator had been given a gun licence by the local police station a few months before the
attack. Further to certain Internet postings, including a comment about a film on the Columbine High
School massacre “being the best entertainment ever”, he was interviewed the day before the attack
by the Detective Chief Inspector of the police station to determine whether he posed a danger to
society. The inspector decided that was not the case and there was no need to take his weapon.

After the shooting, criminal charges were brought against the inspector for negligent breach of an
official duty and grossly negligent homicide. The courts found him guilty in 2011 of the first charge,
finding that the perpetrator’s Internet postings had been disturbing and had warranted the
temporary seizure of his gun. As to the second charge, however, the courts found that the inspector
was not responsible for the homicides because he had not had any probable cause to suspect that
there was an actual risk of an attack in the form of a school shooting. Appeals by the applicants to
the Supreme Court were unsuccessful.

The inspector was given a warning and the applicants’ compensation claims were rejected.
The Government appointed an investigation commission to enquire into the school shooting, leading
to several recommendations in February 2010 concerning the availability of firearms, mental health
services for young people, security planning in schools, and co-operation between authorities to
prevent similar incidents.


Article 2

The Court rejected a Government argument that the applicants had lost their status as victims of a
violation of the Convention. It found that the domestic judgments had not been favourable to them,
the authorities had not acknowledged any breach of the Convention, and no redress had been

Duty to protect lives

The Court noted that the applicants’ main grievance was that the person who had carried out the
shooting had been allowed to possess a firearm, which the police had not seized before the attack.
Highlighting the inherent risks to the right to life from the use of firearms and States’ obligation to
adopt and implement measures to ensure public safety, the Court found that it could not discern any
deficiencies in the relevant framework in Finland at the time.

Reiterating the domestic courts’ findings, the Court also held that it was unable to conclude that
there had been a real and immediate risk to life aimed at identifiable individuals of which the
authorities had known or ought to have known. It could thus not be concluded that the
circumstances of the case had given rise to a duty of personal protection to the victims of the killing
or the other pupils or staff at the school, or that there had been a real and immediate risk from the
perpetrator which the police had known or ought to have known about in advance of the attack.
The Court also rejected an argument by the applicants that the police ought to have obtained the
killer’s medical and military records to obtain data regarding his mental health.

Duty of diligence in connection with firearms

The Court went on to examine whether the State had complied with its duty of diligence in the
protection of public safety, taking into account the context of the case, that is, the use of firearms
and the inherent high level of risk to life.

It noted that the police had become aware of the perpetrator’s Internet posts which, while not
containing any threats, had cast doubt on whether he could safely remain in possession of a
weapon. The police had interviewed him, but had not seized his weapon. An individual error of
judgment could not suffice to conclude that there had been a violation of the Convention, but for
the Court the issue in the case went beyond such an error of judgment.

The crucial question was whether there were measures which the domestic authorities might
reasonably have been expected to take to avoid the risk to life from the potential danger the
perpetrator’s actions had given an indication of.

The precautionary measure of seizing the gun had been available to the police. It would not have
caused any significant interference with any competing rights under the Convention and would not
have involved any particularly difficult or delicate balancing exercise. Indeed, the Court of Appeal
had said that the gun could have been seized according to domestic law as a low threshold
precautionary measure.

The Court thus found that seizing the weapon was a reasonable measure of precaution given the
doubts about the perpetrator’s fitness to possess a dangerous firearm. The authorities had thus not
observed the special duty of diligence incumbent on them owing to the particularly high level of risk
to life inherent in any misconduct involving firearms.

The Court, by six votes to one, found that there had been a violation by the State of its obligations to
safeguard lives under Article 2.


The Court could find no issues of partiality or lack of independence in the pre-trial investigation, or
that it had somehow been insufficient or faulty. The Government had also in 2008 appointed a
commission to investigate the school shooting, which had issued recommendations.

The Court concluded unanimously that there had been no violation of the procedural aspect of
Article 2 stemming from any deficiencies in the investigation. It also rejected complaints by the
applicants under other Articles of the Convention as manifestly ill-founded.

Just satisfaction (Article 41)

The Court held that Finland was to pay 31,571.97 euros to the applicant Elmeri Kotilainen in respect
of pecuniary damage, and EUR 30,000 to each household unit (as listed in the judgment) jointly in
respect of non-pecuniary damage. It held that Finland was also to pay EUR 2,086.34 to the first
household unit and EUR 6,818.56 to each of the other household units (two to ten), in respect of
costs and expenses.

Separate opinion

Judge Eicke expressed a dissenting opinion which is annexed to the judgment.


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