ECHR Judgment of 17 September 2020 in the case of Kotilainen and Others v. Finland)" (aplication No. 62349/12).
In 2012, the applicants were assisted in the preparation of the aplication. The aplication was subsequently communicated to Finland.
In the case, an aplication was successfully considered for failure to fulfill the duty to investigate a case of a threat to life associated with any abuse in the use of firearms. The case involved a violation of the requirements of article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms (there was a violation of a substantive positive obligation on the part of the Finnish authorities). There was no violation of the requirements of article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the applicant did not provide evidence of non-conduct of any investigative actions).
CIRCUMSTANCES OF THE CASE
The applicants are relatives of persons who were killed in the school shooting. The perpetrator of the murder (one of the students) had a permit to own a firearm, and according to the posts of this student on the Internet, the police interviewed him on the subject of whether he could own a firearm, after which it was decided not to seize his firearm. During the incident, the student killed 10 people, and then shot himself.
LEGAL ISSUES
Regarding compliance with article 2 of the Convention (substantive aspect). The use of firearms means a high level of danger to life, since any type of offense, not only intentional, but also negligent, including the use of firearms, can have fatal consequences for the victims of the offense, and the degree of danger when using such weapons in the course of committing intentional crimes is very high. Therefore, it is the form of dangerous activity that should entail a positive obligation of the State to apply measures aimed at ensuring public safety. This basic obligation includes the obligation to enact the law to protect people's lives and to ensure the effective application and functioning of the relevant regulatory framework.
(i) The regulatory framework. The Court was not prepared to accept that, in the absence of a system at the national level in Finland for the active exchange of information between various law enforcement agencies about various threatening situations that had occurred in the past and had not resulted in the initiation of criminal proceedings, it could in itself be considered a relevant violation.
(ii) A permit for the possession of a firearm issued to the person responsible in the present case. The Finnish courts found that in the present case the permit was issued to the guilty person in accordance with the requirements of the legislation in force at the time (he fulfilled all the legal requirements and passed the preliminary interview necessary to obtain the permit) and that there was no negligence on the part of the issuing authorities. The Court finds no grounds to challenge these findings.
(iii) The presence of a real and immediate threat to life. The Finnish courts concluded that, although there were certain facts prior to the shooting incident committed by the perpetrator that suggested that he could potentially have committed acts that threatened people's lives, the information available to the local police authorities in the period before the incident, including Internet posts, did not give any reason to suspect that there was a real risk of an attack in the form of a school shooting. There is a significant difference between actions involving the posting of video clips and text messages on the Internet that do not contain specific or even abstract threats, and the commission of mass murder in a specific place (see, mutatis mutandis, the European Court of Justice's Judgment in Van Colle v. United Kingdom of 13 November 2012, complaint No. 7678/09). Thus, the approach of the Finnish courts to the case was in accordance with the rule of verification of real or perceived knowledge of a real and immediate threat to human life, established in the case-law of the European Court of Justice.
In addition, the present case should be distinguished from the case "Bljakaj and Others v. Croatia" (Judgment of the European Court of Justice of 18 September 2014, application no. 7444/12), which concerned a dangerous person with a mental disorder, in respect of whom a medical supervision order was issued and who, due to the aggravation of his serious mental state, as well as threats made by him, was under the direct control of police officers on the day when he seriously injured his wife and killed her lawyer.
In this regard, the Court could not conclude that there was a real and immediate threat to human life from the perpetrator, which the police officers knew or should have known in advance. Consequently, it cannot be argued that the circumstances of the present case indicated that there was a duty to ensure the personal safety of the victims of the murder or other students or staff of the relevant school.
This conclusion was not affected by the applicants ' argument that the police officers should have requested medical data and military documents relating to the perpetrator in order to verify information about his mental state. Police officers are generally unable to access a person's medical data, and this access must remain dependent on compliance with specific requirements of necessity and reasonableness, which cannot be established retroactively. In addition, even if the information from the offender's medical record was available, it could not be determined whether it could determine whether or not he posed a real and immediate threat to people's lives at the time in question, and if so, to what extent.
(iv) The duty to exercise special care. The Court noted that the obligation to ensure the general protection of society against potentially criminal acts by one or more individuals may be applied to persons, particularly dangerous prisoners, who are under State control, or in circumstances where the immediate danger of these persons has become apparent due to police intervention. The Court considered that a similar duty of special care was applicable to the circumstances of the present case.
Although the perpetrator in the present case was not under the control of the Finnish authorities, the authorities were responsible for establishing and complying with the requirements for the legal possession of firearms. Given the particularly high risk to human life associated with improper handling of firearms, it was important for the Finnish authorities to establish and strictly implement a system of appropriate and effective safeguards designed to counteract and prevent any improper and dangerous use of firearms. This entailed the obligation of the Finnish authorities to intervene in events if they received a warning about facts containing grounds for specific suspicions regarding compliance with these requirements.
In the present case, the local police authorities were aware of the publication of the criminal's posts on the Internet, which, although they did not contain any threats, were of such a nature as to raise doubts as to whether the author of these messages could have remained in a safe situation as the owner of a firearm. In fact, the police officers did not do nothing, but held a conversation with the author of the posts on the Internet. However, no further action was taken to confiscate his weapons, which were known to be available and for which he had a permit. Although an individual error in value judgment cannot be a basis for recognizing a violation by a State of its positive obligations, especially when it comes to a retrospective reassessment of events, the essence of this complaint can be considered to go beyond such an error.
In the Court's view, the removal of the weapon from the person responsible would have been a reasonable precaution to take in the circumstances in question, if doubts had arisen, on the basis of information made available to the competent authorities as to whether the person could have continued to possess dangerous firearms. This measure would not involve any significant interference with convention rights and thus would not involve difficulties or serious balancing points of competing interests. This measure would also not require reaching any high thresholds for its application, rather the opposite. This conclusion differs from the conclusion that the decision not to withdraw the weapons could not be considered to have had any causal link to the subsequent crime, or that it meant that the Finnish authorities failed to comply with the obligation to provide individual protection to the victims of the crime.
Consequently, the Finnish authorities failed to fulfil the special duty of care imposed on them due to the serious threat to life associated with any misuse of firearms. Accordingly, there was a violation of the substantive positive obligation on the part of the Finnish authorities.
RESOLUTION
In the case, there were violations of the requirements of article 2 of the Convention (in its substantive aspect) (adopted by six votes in favor, with one against).
There was no violation of the requirements of article 2 of the Convention (in its procedural and legal aspect) (adopted unanimously).
COMPENSATION
In the application of article 41 of the Convention. The Court awarded each family 30,000 euros in compensation for non-pecuniary damage, 31,571. 97 euros to one of the applicants in compensation for material damage (lost earnings due to the death of the applicant's mother).