24
MAKARATZIS v. GREECE JUDGMENT
them to establish a full and circumstantial account of the events and to
identify all the policemen who had taken part in the incident. It was
impossible for them to do anything else. Therefore no violation could be
found in the present case.
3. The third-party intervener
42. The Institut de Formation en Droits de l’Homme du Barreau de
Paris, a human rights institute founded in 1979 (hereinafter “the Institute”),
submitted written comments regarding the applicability of Article 2 of the
Convention and the States’ obligations under that provision, following the
leave granted to it by the President of the Court to intervene as a third party
(see paragraph 8 above). Its submissions may be summarised as follows.
43. As regards the applicability of Article 2, the Institute considered that
it should be possible for that provision to apply in a case where the police
had made use of potentially lethal force, even if that force did not cause the
death of the person who was the target of the police actions. There should
be no waiting for an irreversible violation of the right to life before
reviewing the circumstances in which lethal force was used. The Court itself
recognised that, in certain circumstances, a merely “potential” or “virtual”
victim of a violation was entitled to take action under the Convention (see
Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161).
In that case, the Court had laid emphasis on “the serious and irreparable
nature of the alleged suffering risked”. It should thus be possible to
transpose this reasoning to a virtual violation of Article 2, since use of lethal
force by police officers could indeed, depending on the circumstances, pose
a serious risk of violation of the right to life.
44. The Institute acknowledged that the Court had already extended the
applicability of Article 2 to cases where the applicant was not killed, but
regretted the fact that it had limited the scope of its scrutiny to “only
exceptional circumstances” (see Berktay v. Turkey, no. 22493/93, 1 March
2001). Against this background, certain abuses of power by State agents
would not fall foul of the Convention on the ground that they did not cause
death and, at the same time, did not necessarily meet the applicability
conditions of Article 3. Only an extension of the applicability of Article 2 to
all cases where lethal force was used, irrespective of the outcome, could fill
this loophole.
45. As regards the States’ obligations under Article 2, the Institute
stressed that, in addition to the “negative obligation” not to commit an
intentional breach of the right to life, there were also a number of “positive
obligations” incumbent on them. In particular, the public authorities had a
duty to adopt very precise rules governing the use of firearms by lawenforcement officials; the latter should also have proper and regular
training. The Institute also referred to the importance of the proportionality
rule when making use of potentially lethal force. Lastly, the Institute