Andronicou and Constantinou v. Cyprus (86/1996/705/897) 9 October 1997: alleged unlawful killing of a young couple by officers of a special police unit (MMAD) in the course of a rescue operation

Cyprus – alleged unlawful killing of a young couple by officers of a special police unit (MMAD) in the course of a rescue operation

I. GOVERNMENT'’S PRELIMINARY OBJECTIONS

II. ARTICLE 2 OF THE CONVENTION

Reiteration of Court’s case-law on principles governing use of lethal force by security forces.

B. Planning and control of rescue operation

Court only concerned to establish whether in circumstances authorities had taken appropriate care in planning and control of rescue operation including decision to deploy MMAD officers to minimise any risk to lives of couple – not appropriate to assess alternative ways of handling situation with benefit of hindsight.

Authorities conducted prolonged negotiations in knowledge that were dealing with a young couple - negotiations carried out in a reasonable manner in view of circumstances – however, as situation became increasingly fraught with danger authorities could reasonably conclude that decisive action needed to bring an end to incident in view of failure of negotiations phase – justified fear that young man, known to be armed, would kill his fiancée at midnight and commit suicide – decision to send in MMAD officers only taken after careful reflection and high level consultation.

Although officers armed with machine guns it was never intended that these weapons be used – officers given clear instructions to use only proportionate force and to open fire only if life of young woman or their own lives in danger.

Not shown in view of above considerations that rescue operation had not been planned and organised in a way which minimised to greatest extent possible any risk to lives of couple.

C. Administration of force

Officers’ use of force was direct result of young man’s decision to open fire when rescue team entered flat – officers had to take split-second decisions to save life – officers’ honest, even if mistaken, belief at the time that young man constituted a real and immediate danger to life of young woman and to lives of officers – valid reasons for this belief in circumstances and for officers’ conclusion that it was necessary to kill young man to save young woman’s life as well colleagues’ lives - clearly regrettable that Officers 2 and 4 used as much fire power as they did – however, Court cannot with detached reflection substitute its own assessment of situation for that of officers confronted with agonising dilemma and the need to neutralise any risk presented by young man to lives of others.

Use of lethal force in circumstances did not exceed what was absolutely necessary for purposes of defending life of young woman and lives of officers.

Conclusion: no violation (5 votes to 4).

(b) The Court’s assessment of the rescue operation

181. The Court’s sole concern must be to evaluate whether in the circumstances the planning and control of the rescue operation including the decision to deploy the MMAD officers showed that the authorities had taken appropriate care to ensure that any risk to the lives of the couple had been minimised and that they were not negligent in their choice of action. It does not therefore consider it appropriate to discuss with the benefit of hindsight the merits of alternative tactics such as the administration of drugs to Lefteris Andronicou’s food early in the afternoon of 24 December or the use of psychologists in the negotiations, or to substitute its own views for those of the authorities confronted with a dilemma unprecedented in the respondent State and the need to take decisive action to break the deadlock. It is to be noted that alternative strategies were in fact discussed and analysed before the domestic Commission of Inquiry and expert opinion differed as to their suitability in the circumstances (see paragraphs 97-101 above).

182. In carrying out its assessment of the planning and control phase of the operation from the standpoint of Article 2 of the Convention, the Court must have particular regard to the context in which the incident occurred as well as to the way in which the situation developed over the course of the day. 

183. As to the context, the authorities clearly understood that they were dealing with a young couple and not with hardened criminals or terrorists. The negotiations and the resolve to negotiate up until the last possible moment clearly indicate that the authorities never lost sight of the fact that the incident had its origins in a "lovers’ quarrel" and that this factor had to be taken into account if, in the final analysis, it transpired that force had to be used to free Elsie Constantinou. It was not unreasonable in view of the context for the authorities to enlist the help of the family and friends of Lefteris Andronicou in order to bring the situation to an end.  

It is also to be noted that the authorities tried to bring an end to the incident through persuasion and dialogue right up to the last possible moment. The police negotiator continued his attempts in the later phase of the incident to assure Lefteris Andronicou that no harm would come to him if he were to release the young woman. Instructions were in fact given at a meeting which ended at 23:00 to delay the involvement of the MMAD officers as much as possible to enable negotiations to continue (see paragraph 55 above). This sustained effort by the authorities to resolve the situation through negotiations illustrates a deep concern on the part of the authorities to deploy the MMAD officers only as a last resort.

While there may have been shortcomings as regards, for example, the lack of crowd control or the absence of a dedicated telephone line between the police negotiator and Lefteris Andronicou, the Court considers nevertheless that the negotiations were in general conducted in a manner which can be said to be reasonable in the circumstances.

184. Irrespective of the domestic nature of the incident the situation progressively developed in the eyes of the authorities present into a situation fraught with danger and in which critical decisions had to be taken. Lefteris Andronicou’s intransigence in the face of negotiations, his threatening tone as well as the young woman’s shouts for help persuaded the authorities that he intended to kill her and commit suicide at midnight. Admittedly Lefteris Andronicou never announced that he would kill Elsie Constantinou and he only threatened to shoot her if the police broke into his flat. Nevertheless, the authorities could not reasonably ignore her shouts that her life was in danger. It must be emphasised that one hour before midnight she was repeatedly heard screaming that Lefteris Andronicou was going to kill her (see paragraph 59 above) and that Lefteris Andronicou had already shown his capacity for violence by beating her (see paragraph 16 above). In these circumstances and in the knowledge that Lefteris Andronicou was armed, the authorities could reasonably consider that as midnight approached the negotiations had failed and that an attempt had to be made to get into the flat, disarm and arrest him and free Elsie Constantinou.

185. In the Court’s view the authorities’ decision to use the MMAD officers in the circumstances as they were known at the time was justified. Recourse to the skills of a highly professionally trained unit like the MMAD would appear to be quite natural given the nature of the operation which was contemplated. The decision to use the MMAD officers was a considered one of last resort. It was discussed both at the highest possible level in the police chain of command and at ministerial level (see paragraph 55 above) and only implemented when the negotiations failed and, as noted above, in view of a reasonably held belief that the young woman’s life was in imminent danger. While it is true that the officers deployed were trained to shoot to kill if fired on, it is to be noted that they were issued with clear instructions as to when to use their weapons. They were told to use only proportionate force and to fire only if Elsie Constantinou’s life or their own lives were in danger (see paragraph 38 above).

It is to be noted that no use of weapons was ever intended and in fact the authorities were deeply anxious to avoid any harm to the couple (see paragraphs 38 and 54 above). However, it was not unreasonable to alert the officers to the dangers which awaited them and to direct them carefully on firearms use. Furthermore, it must be stressed that the officers were not in fact informed that Lefteris Andronicou was in possession of weapons in addition to the hunting gun. They were told that this possibility could not be excluded (see paragraph 38 above). Seen in these terms the message could reasonably be considered to be a warning to the officers to use extreme caution when effecting the operation.

As to the decision to arm the officers with machine guns, it must be emphasised once again that the use of any firearm was never intended in the execution of the plan. However, given that Lefteris Andronicou was armed with a double-barrelled hunting gun and it was not to be excluded that he had other weapons, the authorities had to anticipate all possible eventualities. It might be added that the machine guns had the advantage that they were fitted with flashlights which would enable the officers to overcome any difficulties encountered in identifying the precise location of the young woman in a dark room filled with tear gas and at the same time leave their hands free to control their weapons in the event of coming under fire. Furthermore, the use by the officers of their machine guns was subject to the same clear instructions as applied to the use of their pistols (see paragraph 38 above).

186. Having regard to the above considerations the Court is of the view that it has not been shown that the rescue operation was not planned and organised in a way which minimised to the greatest extent possible any risk to the lives of the couple.

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