MAKARATZIS v. GREECE JUDGMENT 39 PARTLY DISSENTING OPINION OF JUDGE WILDHABER JOINED BY JUDGES KOVLER1 AND MULARONI To my regret I am unable to subscribe to the finding of a substantive violation of Article 2 in the instant case. This case is about a dangerous police chase in the centre of Athens. Dangerous, because the police shot at the applicant, but dangerous also because, before the police opened fire, the applicant had broken through several police roadblocks with his car, collided with several other vehicles, injured two drivers and caused a cervical hernia in one of them in the process (see paragraphs 11, 19, 21 and 64 of the judgment). It does not therefore necessarily help simply to state that the right to life is fundamental (see paragraph 56). The problem is: whose life? And how should the different lives at stake be protected? Our Court’s case-law asserts that a State may have a positive obligation to protect the life of individuals from third parties (see paragraph 50). Concretely, this may mean that the police had to protect the lives of pedestrians, car drivers and their colleagues from the applicant. The Court’s case-law states at the same time that, in exceptional circumstances, physical ill-treatment by State agents that does not result in death may disclose a violation of Article 2 (see paragraphs 43-44 and 51-52 of the judgment; see also Berktay v. Turkey, no. 22493/93, 1 March 2001, and İlhan v. Turkey [GC], no. 22277/93, § 76, ECHR 2000-VII). Concretely, this may mean that the use of force by the police against the applicant could amount to a violation of Article 2, notwithstanding the fact that it was not in the end lethal. If these two strands of case-law are over-extended, they may ultimately overlap and come into conflict. The State might then paradoxically violate both its positive duty to protect the life of individuals from third parties and its obligation to curb the use of force by the police. Obviously, such an overlap would be unfortunate. In extreme cases it can place the competent authorities in an impossible situation. In between there must be room for the unpredictability of life and the subsidiarity of the Convention system. Such difficult decisions, taken in the heat of the action, should properly be reviewed by the national courts and our Court should only depart from such findings with reluctance. In the present case the Court’s majority relies on some of the findings of the Greek court, which indeed appear in no way arbitrary (see paragraphs 19 and 66 of the judgment). It finds that the police could reasonably have considered that there was a need to resort to the use of their weapons. I see no grounds for finding otherwise. 1. Judge Kovler does not share the conclusions in the opinion as regards Article 41 of the Convention since he voted with the majority on that issue.