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RAMSAHAI AND OTHERS v. THE NETHERLANDS
(Application no. 52391/99)
judgment is final but may be subject to editorial revision.
In the case of Ramsahai and Others v. the Netherlands,
European Court of Human Rights, sitting as a Grand Chamber composed
Mr J.-P. Costa, President,
Mr C.L. Rozakis,
Sir Nicolas Bratza,
Mr L. Loucaides,
Mr I. Cabral Barreto,
Mrs S. Botoucharova,
Mrs A. Mularoni,
Mrs E. Fura-Sandström,
Mr K. Hajiyev,
Ms D. Jočienė,
Mr D. Popović,
Mrs W. Thomassen, ad hoc judge,
and Mr M. O'Boyle, Deputy Registrar,
deliberated in private on 18 October 2006 and on 21 February 2007,
the following judgment, which was adopted on the last-mentioned date:
case originated in an application (no. 52391/99) against the Kingdom
of the Netherlands lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by three Netherlands
nationals, Mr Renee Ghasuta Ramsahai, Ms Mildred Viola
Ramsahai and Mr Ricky Moravia Ghasuta Ramsahai
(“the applicants”), on 8 September 1999.
applicants were represented by Mr G.P. Hamer, a lawyer practising in
Amsterdam. The Netherlands Government (“the Government”)
were represented by their Agents, Mr R.A.A. Böcker and Mrs J.
Schukking of the Netherlands Ministry of Foreign Affairs.
applicants alleged, in particular, that the circumstances of the
death of Mr Moravia Siddharta Ghasuta Ramsahai,
grandson of the first two applicants and son of the third applicant,
who was shot dead by a police officer, were constitutive of a
violation of Article 2 of the Convention. They also alleged that the
subsequent investigation proceedings had been insufficiently
effective and independent.
application was allocated to the Court's Second Section (Rule 52 § 1
of the Rules of Court). Within that Section, the Chamber that would
consider the case (Article 27 § 1 of the Convention) was
constituted as provided in Rule 26 § 1.
1 November 2004 the Court changed the composition of its Sections
(Rule 25 § 1). This case was assigned to the newly composed
Third Section (Rule 52 § 1). Mr Myjer, the judge elected in
respect of the Netherlands, withdrew from sitting in the case (Rule
28). The Government accordingly appointed Mrs W. Thomassen to sit as
an ad hoc judge (Article 27 § 2 of the Convention
and Rule 29 § 1).
a decision of 3 March 2005, a Chamber of that Section declared the
10 November 2005 the Chamber, composed of the following judges: Mr
B.M. Zupančič, President, Mr J. Hedigan, Mr L.
Mrs M. Tsatsa-Nikolovska, Mr V. Zagrebelsky, Mr David
Thór Björgvinsson, judges, and Mrs W. Thomassen, ad
hoc judge, and also of
Mr V. Berger, Section Registrar,
delivered a judgment (“the Chamber judgment”) in which it
held, by a majority, that there had been a violation of Article 2 of
the Convention in respect of failings in the investigative procedures
concerning the death of Moravia Ramsahai; unanimously, that there had
been no violation of Article 2 of the Convention for the
remainder; unanimously, that Article 6 of the Convention was not
applicable; and unanimously, that there was no separate issue under
Article 13 of the Convention. The partly dissenting opinion of
Mrs Thomassen and Mr Zagrebelsky was annexed to that
a letter of 9 February 2006 the Government requested, in accordance
with Article 43 of the Convention and Rule 73, that the case be
referred to the Grand Chamber. A panel of the Grand Chamber accepted
that request on 12 April 2006.
composition of the Grand Chamber was determined according to the
provisions of Article 27 §§ 2 and 3 of the Convention and
January 2007 Mr Wildhaber's term as President of the Court came to an
end. Mr Costa succeeded him in that capacity and took over the
presidency of the Grand Chamber in the present case (Rule 9 §
Government, but not the applicants, filed a memorial on the merits.
The applicants referred to their submissions in the proceedings
before the Chamber.
hearing took place in public in the Human Rights Building,
Strasbourg, on 18 October 2006 (Rule 59 § 3).
There appeared before the Court:
(a) for the respondent Government
Mr M. Kuijer and
Ms T. Dopheide,
(b) for the applicants
Mr G.P. Hamer, Counsel,
Ms M. van Delft, Co-Counsel.
Court heard addresses by Mr Hamer, Mr Böcker and Mr Kuijer as
well as their replies to questions put by judges.
I. THE CIRCUMSTANCES OF THE CASE
first two applicants, Mr Renee Ghasuta Ramsahai and Mrs Mildred
Viola Ramsahai, are the grandfather and grandmother of Mr Moravia
Siddharta Ghasuta Ramsahai (“Moravia Ramsahai”),
deceased. They were both born in 1938. They were their grandson's
guardians until he reached his majority at the age of eighteen. The
third applicant, Mr Ricky Moravia Ghasuta Ramsahai, born in 1960, is
the father of the late Moravia Ramsahai.
Ramsahai was born on 6 December 1979. He died on 19 July 1998.
A. The circumstances of the case
1. The circumstances surrounding Moravia Ramsahai's
death and subsequent events
the evening of Sunday, 19 July 1998, during the “Kwakoe”
festival in the Bijlmermeer district of Amsterdam (a celebration by
the Surinamese immigrant community of the abolition of slavery in
Suriname 135 years earlier), Moravia Ramsahai forced the owner of a
scooter, one Mr Vinodkumar Hoeseni, at gunpoint to give up his
vehicle. Having gained control of the scooter, he then made off with
Hoeseni notified two of police officers patrolling on foot, who
reported the robbery to the duty police officer at Flierbosdreef
police station by radio. The duty police officer in turn alerted
police patrolling in the area. In the meantime Mr Hoeseni and the two
police officers had set off in pursuit of Moravia Ramsahai and the
scooter but failed to catch him.
was afterwards a matter of controversy between these two police
officers and Mr Hoeseni whether Mr Hoeseni had mentioned the fact
that Moravia Ramsahai had a firearm. Mr Hoeseni stated that he had
given this information but had been misheard. The two police officers
stated that they had been unaware of it and so had not been able to
pass on this information to the police station.
five minutes later, two uniformed police officers, Officers Brons and
Bultstra, patrolling in a marked police car, saw a scooter driven by
a person fitting the description given to them stopping near a
high-rise building called “Huigenbos”. They stopped the
car and got out. Officer Bultstra ran towards the person whom they
had seen riding the scooter, later identified as Moravia Ramsahai,
and tried to arrest him. There was a brief struggle from which
Moravia Ramsahai was able to extricate himself.
Bultstra saw Moravia Ramsahai draw a pistol from his trouser belt.
Officer Bultstra then dropped a two-way radio which he had been
holding in his hand, drew his service pistol and ordered Moravia
Ramsahai to drop his weapon. This Moravia Ramsahai failed to do.
Officer Brons, the driver of the patrol car, then approached. It was
stated afterwards that Moravia Ramsahai raised his pistol and pointed
it in the direction of Officer Brons, who also drew his service
pistol and fired. Moravia Ramsahai was hit in the neck.
confrontation between Moravia Ramsahai and Officers Brons and
Bultstra was observed from nearby by only a single witness, Mr Petrus
van den Heuvel, who was able to follow the incident from the
fifth-floor walkway of the Huigenbos building. However, when he saw
pistols being drawn, Mr Van den Heuvel dived for cover behind the
parapet; he therefore did not see the shot fired.
other people witnessed the confrontation and the shooting from a
distance of at least fifty metres. None of these witnesses
subsequently reported seeing Moravia Ramsahai's pistol.
10.03 p.m. one of the two police officers, later stated to have been
Officer Brons, radioed Flierbosdreef police station to say that he
had shot someone and asked for an ambulance to be sent.
the ambulance arrived on the scene, at approximately 10.15 p.m.,
the ambulance crew found Moravia Ramsahai already dead.
his return to Flierbosdreef police station, Officer Brons was seen by
the commanding officer of the Amsterdam/Amstelland police force,
Police Commissioner Van Riessen, who offered comfort and support.
Subsequently, the applicants alleged, Police Commissioner Van Riessen
was quoted in the mass circulation daily newspaper De Telegraaf
as having stated: “Whatever kind of committee of inquiry may be
set up in addition, I will not let them in.” (“Wat
voor een onderzoekscommissie er daarnaast ook wordt ingesteld, ze
komen er bij mij niet in”).
Amsterdam coroner (lijkschouwer) viewed Moravia Ramsahai's
body before it was removed. In his report to the public prosecutor,
he expressed the provisional opinion that the cause of death had been
a shot from a firearm injuring vital neck organs or structures.
Brons and Bultstra were back on duty a few days after the incident.
2. Investigative measures by the Amsterdam/Amstelland
police arrived on the scene, cordoned off the scene of the shooting
and took the names of Mr Van den Heuvel and others who had witnessed
experts from the Amsterdam/Amstelland police force secured evidence,
mainly in the form of photographs, which was afterwards added to the
investigation file. They found the bullet, which had passed through
Moravia Ramsahai's body and had destroyed a glass window but which
had left no other mark, and Moravia Ramsahai's pistol, which had been
loaded and ready to fire.
that night a special operations unit (Mobiele Eenheid, “Mobile
Unit”) of the Amsterdam/Amstelland police questioned all
residents of the Huigenbos building whom they found at home. In one
flat there was a twelve-year-old girl, Miss Sangeeta Edwina Pamela
Mungra, who stated that when she had taken the lift down to the
ground floor, the door of the lift had struck a scooter lying on the
floor. As she had got out of the lift she had heard a bang. She had
seen two police officers and heard one of them say: “I have
fired.” She had seen a male victim lying on the ground.
the following days, officers of the Amsterdam/Amstelland police force
took various witness statements, which are rendered in condensed form
(a) Mr Hoeseni
Vinodkumar Hoeseni reported the theft of his scooter to the
Amsterdam/Amstelland police on 19 July 1998.
Hoeseni had purchased the scooter earlier that week. On the night of
19 July he had ridden it to the Kwakoe festival where he had met
his girlfriend. While he was with her, a youth unknown to him had
come up to him and said: “Get off. Get off. I shoot you, I
shoot you.” (“Deraf. Deraf. Ik schiet jou, ik schiet
jou.”). Mr Hoeseni had felt something being pushed against
his right side. Looking down, he had recognised the object as a
lady's pistol. He had been unwilling to give up the scooter but his
girlfriend had advised him to do so lest he be shot. He had then let
go of the scooter and run towards the first policemen he saw.
Hoeseni had told one of them that his scooter had been stolen at
gunpoint and that they should run after it. He had given a
description of the scooter and the thief. Mr Hoeseni and the two
police officers present had gone after the thief, but he had ridden
Hoeseni had later heard, on the police officers' two-way radio, that
the scooter had been found. Together with the police officers he had
gone to it and identified it as his.
(b) Ms Bhondoe
Anita Andjiedewie Bhondoe, Mr Hoeseni's girlfriend, was questioned on
19 July 1998. She had gone with her brother to the Kwakoe
festival, where she had met Mr Hoeseni. Mr Hoeseni had just bought a
new scooter. Ms Bhondoe's brother had gone to fetch something to
drink for the three of them. After about fifteen minutes she and Mr
Hoeseni had been approached by a youth whom she had noticed looking
at her and the scooter. The youth had said to Mr Hoeseni: “Get
off, get off” (“Stap af, stap af”) and had
pressed an object resembling a firearm against Mr Hoeseni's stomach.
She had thought at first that this was a friend of Mr Hoeseni's
playing a prank, but had realised from the latter's facial expression
that this was not the case.
had prevailed on her boyfriend to get off the scooter when the youth
had said: “Get off, get off, or I will shoot” (“Ga
eraf, ga eraf, anders ga ik schieten”). Mr Hoeseni had then
run off to get help, whilst the youth had bump-started the scooter
and made off with it. Mr Hoeseni had returned with two police
officers and the three of them had set off in pursuit of the youth on
the scooter. Ms Bhondoe had joined them for a bit but had been called
back by her brother. Together they had run in the direction taken by
the police officers. Arriving at the Huigenbos building, they had
seen a large number of cars. Mr Hoeseni had told them that the youth
had been caught and that the police had shot him.
(c) Mr Van den Heuvel
Petrus van den Heuvel was questioned on 19 July 1998. He stated that
he lived on the fifth floor of the Huigenbos building.
to look down from the walkway, he had seen a policeman run towards
the doorway. He had seen a coloured man with a shaved head come out
of the doorway. He had seen the policeman try to grab the coloured
man by his arm. The coloured man had made a sideways movement with
his arm, as if to indicate that he did not want to go along with the
policeman, and the policeman had not been able to hold on to him.
coloured man had then drawn a pistol or a revolver, whether out of
his pocket or out of his trouser band Mr Van den Heuvel could not
see. The weapon was of a silver-grey colour with a dark coloured
grip. Mr Van den Heuvel's instinctive reaction had been to dive for
cover behind the balustrade of the walkway. As he glanced over
briefly out of curiosity, it had appeared to him that the policeman
had taken a few steps sideways. The coloured man was still holding
the weapon in his hand. He had not pointed it in any particular
direction, but he had not dropped it either. All this happened very
quickly, perhaps in less than half a minute.
- In the meantime a second policeman had come running
up. He had heard “Drop it” being shouted very loudly at
least four times. The coloured man must have heard it, but ignored
it. Mr Van den Heuvel did not remember seeing the second
policeman standing still after he had reached the scene of events. He
had heard a bang and had seen the coloured man collapse. The weapon
had fallen to the ground a few metres away. The first policeman had
walked up to the coloured man to inspect. The second policeman had
spoken into some device or other, after which help had arrived. He
had tried to call the police on his telephone, but had been told that
help was on its way. He had stood and watched a little longer before
going down and giving his name to the police as a witness.
(d) Officer Dekker
Officer Bas Dekker was questioned on 20 July 1998. At around 10.05
p.m. the night before, he had been patrolling the Kwakoe festival
with Officer Boonstra.
Dekker had been addressed by a young man whom he did not know, who
told him that he had been dragged off his scooter and that his
scooter had been taken from him; this had happened less than a minute
earlier. The young man had given him the scooter's insurance papers
and indicated the direction in which the thief had taken the scooter.
Officers Dekker and Boonstra, together with the young man, had run in
the direction indicated by the latter. While running Officer Dekker
had radioed through the description of the scooter to other police
officers. At this point he had not been aware that the thief had used
a weapon; the owner of the scooter had not mentioned it. Officer
Dekker had assumed that the thief had used physical force only, the
owner of the scooter having stated that he had been dragged off his
thief had managed to start the scooter as they had caught sight of
him. They had continued running but the scooter had been faster.
Officer Dekker had radioed through his own description of the scooter
and its rider, the possible directions in which they might have gone
and the insurance plate number. They had continued running; upon
reaching the pedestrian underpass Officer Dekker had heard, on his
radio set, another policeman reporting a shooting and shortly
afterwards calling an ambulance. Officer Dekker estimated that
approximately one minute had elapsed from when he transmitted his
description of the scooter until the report of the shooting, but he
could not be sure.
Officers Dekker and Boonstra stood wondering whether there was any
connection between the shooting and the theft of the scooter, the
owner of the scooter, who had apparently overheard the police radio,
had told them that the thief had a small silver-coloured pistol.
Dekker and Boonstra and the owner of the scooter had made their way
to the scene of the shooting in front of the Huigenbos building. They
had seen a person lying supine on the ground, with two uniformed
police officers kneeling beside him. They had advanced and recognised
(e) Officer Braam
Officer Paulus Antonius Braam was questioned on 20 July 1998. His
work consisted of, among other things, monitoring and dealing with
two-way radio traffic.
19 July 1998 at 9.55 p.m. Officer Braam had been sitting at his
plotting table when he had heard a report come in by two-way radio
from a surveillance police officer that he was following a youth who
had just stolen a scooter. A little later the officer had radioed in
to say that the thief had managed to bump-start the scooter, and to
give an indication of the direction in which the thief had gone. The
officer had sounded unemotional, as if it were nothing other than an
“ordinary” robbery of a scooter.
officer being on foot, he had requested the assistance of a motorised
colleague. In so doing he had given a description of the scooter.
Officer Braam had asked a colleague on a motorcycle to go in the
the motorcycle policeman had been about to leave the police station
forecourt, Officer Braam had heard Officer Bultstra from his marked
police car report that he had seen the scooter with the thief enter
the doorway leading to the third lift of the Huigenbos building and
would go after him. Officer Bultstra too had sounded unemotional.
or five minutes later, perhaps less, Officer Braam had heard Officer
Bultstra saying: “The suspect has been shot, I want an
ambulance”. Again, Officer Bultstra had sounded calm and
professional. Officer Braam had then called for the appropriate
Braam had not heard Officer Brons take part in the radio
conversation. This reflected standard practice, namely that the
driver of a police car – in this case Officer Brons – had
his two-way radio set to the frequency of the central incident room,
whereas the “passenger” – Officer Bultstra –
had his radio set to the frequency used by the local team.
(f) Officer Van Daal
Officer Renate Quirina van Daal was questioned on 20 July 1998.
Van Daal was a uniformed police officer on the basic police
assistance staff. The previous night she had been seated at the
plotting table from 8.15 p.m. until midnight. Until the shooting it
had been a quiet night. She had sat there with Officer Braam and
Superintendent Casper Sikking.
around 10 p.m. she had heard, on the radio frequency used by the
district police, that a police officer was chasing a scooter, and
also which direction the scooter had taken. She did not remember the
precise words used, nor any description given of the rider.
afterwards she had heard the voice of Officer Bultstra, reporting the
sighting of the scooter. A second or two later Officer Bultstra had
reported seeing the scooter in a doorway of the Huigenbos building.
Sikking had called by radio: “All right boys, everyone go to
Huigenbos.” (“Jongens met z'n allen naar Huigenbos”).
shortly afterwards Officer Bultstra had said: “I want an
ambulance, I have fired” (“Ik heb geschoten”).
Superintendent Sikking had asked him to repeat that. Officer Bultstra
had repeated: “I have fired.” Most of the police officers
present had then gone out and Officers Van Daal and Braam had
contacted the appropriate emergency services.
Van Daal had later heard Officer Brons say that the ambulance was
needed urgently because the suspect was in a very bad way.
was only later that Officer Van Daal had been informed by other
police officers that it was in fact Officer Brons who had fired.
(g) Officer Van Dongen
Officer Bruin Jan van Dongen was questioned on 20 July 1998.
He was a police-dog handler whose duty station was Flierbosdreef
police station. He had been on duty the previous night, with his
had heard, on his two-way radio, that a scooter had been stolen at
the Kwakoe festival. The direction in which the thief had driven off
was given. The description was of a coloured male, dressed in black,
riding a red scooter. Officer Van Dongen had gone in the direction
Van Dongen's car was passed by a marked police car in which there
were two police officers. He had recognised the driver, Officer
Brons, but not the passenger. He had seen the car being parked and
the passenger emerge.
Van Dongen had also parked his car, intending to look for the thief
if he could. He had been getting the police dog out when he had heard
a pistol shot.
had run with the dog in the direction from which the sound of the
shot had come. Having reached the Huigenbos building, he had met
Officer Brons coming towards him. He had seen Officer Bultstra
kneeling near the head of a male who was lying flat on the ground.
had asked Officer Brons what had happened. Officer Brons had replied
that there had been shooting. Officer Van Dongen had asked who had
fired. Officer Brons had replied that a pistol had been aimed at them
and the police had fired.
- Officer Brons had pointed out a silver-coloured pistol
lying on the ground close to the man. Officer Bultstra had been
administering first aid. Officer Van Dongen had not been able to see
any injury. He had had to keep his distance from the man because of
man on the ground fitted the description given of the person who had
stolen the scooter. There had been a red scooter in the doorway of
the building and so Officer Van Dongen had understood that this was
the person suspected of having committed the robbery.
Van Dongen had heard Officer Brons notify the local health authority
and the police superintendent on duty. Officer Van Dongen had guarded
the area until the arrival of the criminal investigators (recherche)
and the forensic experts. He had stayed on the spot until they had
finished and had returned to the police station at midnight.
(h) Officer Boonstra
- Police Officer Klaas Boonstra was questioned on 20
July 1998. He had been assigned, together with Police Officer Bas
Dekker, to patrol the Kwakoe festival, their task being to observe
and to maintain a preventive presence. At a certain moment, a
male had come running up to them and had beckoned them to follow him.
Because the Hindustani had given the impression that something was
the matter, they had followed him. While running he had told Officer
Dekker what the matter was. Officer Boonstra had been following at a
distance of about ten metres.
Boonstra had heard on his two-way radio that a scooter had been
stolen. It had not been immediately clear to him that the scooter
belonged to the Hindustani.
one point they had seen the scooter thirty metres ahead of them,
being ridden slowly. Officer Dekker had told Officer Boonstra that
that was the scooter which had been stolen. The person riding the
scooter had noticed the police officers but instead of stopping, had
increased speed. While moving in the direction of the Huigenbos
building, they had heard it reported on the two-way radio that there
had been a shooting. They had not immediately linked the shooting to
the stealing of the scooter. Still accompanied by the Hindustani,
they had continued in the direction of the Huigenbos building, where
they had noticed three or four police cars. The Hindustani had
recognised his scooter.
(i) Ms Boujedaine
Najima Boujedaine was questioned on 21 July 1998. She worked as chief
cashier at a Burger King restaurant located on the Leidseplein in
Amsterdam. On 19 July 1998 she had been on the night shift, from
6.30 p.m. until 5 a.m. the following day.
Boujedaine had noticed the presence of a particular youth from 6.30
p.m. onwards. She described him as being of Surinamese or Antillean
descent, eighteen years old, bald-headed with two golden teeth,
dressed in a black tee-shirt and trousers and black shoes and wearing
a golden chain around his neck. From 7.30 p.m. onwards she had
noticed him distracting one of the cashiers, a young woman called
to task for failing to concentrate on her work, Nancy had explained
to Ms Boujedaine that the youth was her boyfriend. The youth had
reacted angrily, telling Ms Boujedaine to go easy on Nancy or else.
having told Nancy, jokingly, that she might have to stay a little
longer, Ms Boujedaine had seen the youth staring at her fixedly. This
had frightened her, but she had not wished to show fear. Just before
she had turned round to draw a soft drink she had seen his right hand
move towards the band of his trousers.
Boujedaine's sister Mimount (or Mimout), who also worked at that
restaurant, had then said: “Najima, he was aiming a pistol at
you!” Ms Boujedaine had turned round and had seen the
youth stick something down the band of his trousers. Mimount had
later described the pistol as a small silver-grey model known as a
Surinamese girl had then asked the youth a question in her own
language and he had replied. She had then told Ms Boujedaine that she
had asked the youth whether he was carrying a pistol, to which he had
replied in the affirmative.
youth had looked as though he might have been smoking cannabis, but
Ms Boujedaine could not be sure of that.
had continued to bother Nancy in her work. He had left several times
and come back. At one point he had returned on a brand new
youth had struck up a conversation with Ms Boujedaine in which he had
indicated that he wanted to clear out the safe after closing time; he
had wanted her to give him the codes for the safe. In the course of
this conversation he had been eyeing the drawers of the cash
times he had repeated that it was already 9 p.m. and Ms Boujedaine
should close Nancy's cash register.
Boujedaine had felt uncomfortable and frightened, particularly after
the youth had indicated his intention “to wring the manager's
youth had become angry again at 9 p.m., when Ms Boujedaine had
terminated the conversation. Ms Boujedaine had then locked up Nancy's
cash register and secured the tray. She had seen him and Nancy leave
at around 9.30 p.m., on the scooter on which he had arrived earlier.
(j) Mr De Getrouwe
Ronald de Getrouwe had come forward after hearing of the shooting at
the Huigenbos building. He was questioned on 22 July 1998. He wished
to report having been threatened.
Sunday, 19 July 1998 at 8.15 p.m. he had been on the Kwakoe festival
ground with his wife and some friends. There had been a group of
youths behind them, one of whom had been seated on a scooter or moped
(bromfiets). Mr De Getrouwe described the vehicle as having a
blue fairing. At one point the youth had started the engine and
repeatedly opened the throttle, releasing large quantities of exhaust
gas. This had given rise to complaints from Mr De Getrouwe's group.
Mr De Getrouwe himself had then gone up to the youth and asked him
either to ride off or to turn off his engine, because he was
poisoning everyone with his noxious fumes. The youth had turned off
the engine and approached Mr De Getrouwe, saying: “You're
smoking [a cigarette], you're going to die too.” Mr De Getrouwe
had thought that the youth wanted to discuss the matter like a
reasonable person. Instead, the youth had taken a small
metal-coloured pistol out of his right-hand trouser pocket and said:
“Nobody's going to tell me what to do. I do as I please, we're
all going to die anyway.”
De Getrouwe's wife, greatly upset by the sight of the pistol, had
pulled him away. The youth had got back onto the scooter.
of the bystanders, who had been numerous, had offered any assistance.
They had clearly been deterred by the sight of the pistol.
(k) Mr Bhondoe
Sanchaai Kumar Bhondoe, the brother of Mr Hoeseni's girlfriend, was
questioned on 22 July 1998.
Sunday 19 July 1998, between 8.30 p.m. and 10 p.m., he had been at
the Kwakoe festival in the company of his sister and Mr Hoeseni. He
had left them to fetch something to drink for the three of them. He
had heard shouting, and he had seen Mr Hoeseni run towards some
police officers present. He had run after Mr Hoeseni and asked him
what the matter was. Mr Hoeseni had answered that he would tell him
later. He had found his sister in tears and asked her what had
happened. She had told him how Mr Hoeseni had been forced at gunpoint
to hand over his scooter.
3. The investigation by Detective Chief Superintendent
Van Duijvenvoorde of the State Criminal Investigation Department
Chief Superintendent of the State Criminal Investigation Department
(hoofdinspecteur van politie-rijksrecherche) Van Duijvenvoorde
was put in charge of the investigation. His investigation report
states that after 1.30 p.m. on 20 July 1998 the Amsterdam/Amstelland
police force only carried out investigations “in the periphery”
of Moravia Ramsahai at the request of the State Criminal
Investigation Department. He reported his findings to Public
Prosecutor De Vries, who was the public prosecutor in charge of
criminal investigation work carried out at Flierbosdreef police
Chief Superintendent Van Duijvenvoorde took statements from a number
of witnesses, including some already questioned by officers of the
Amsterdam/Amstelland police. These are rendered in condensed form
(a) Mr Van den Heuvel
Petrus van den Heuvel was questioned a second time on 21 July 1998,
this time by Detective Chief Superintendent Van Duijvenvoorde.
his earlier statement, Mr Van den Heuvel described what he had seen
from the fifth-floor walkway of the high-rise building. He had seen a
uniformed police officer running towards the doorway. He had seen a
coloured male go to meet the policeman from the doorway. This man had
been walking very slowly, at snail's pace. The police officer had
wanted to grab hold of the man, by his left arm, as it appeared to Mr
Van den Heuvel. The coloured man had made a gesture as if to repulse
the police officer. He had hit the police officer, knocking him off
balance somewhat, which enabled the coloured man to pass.
he had passed the police officer, the coloured man had drawn a pistol
or a revolver, a firearm at any rate, which he had held in his right
hand. He had held his arm slanted downwards, thus pointing the pistol
towards the ground, and had tried to continue on his way. Mr Van den
Heuvel had not seen the police officers draw their pistols. Feeling
threatened by the pistol which the coloured man had drawn and not
wishing to be hit by a stray bullet, he had dived for cover. He had
therefore not witnessed the actual shooting, but he had heard shouts
of “Drop it” several times.
(b) Officer Brons
Brons, by then under investigation as a suspected perpetrator of a
criminal act, was questioned under caution by Detective Chief
Superintendent Van Duijvenvoorde in the afternoon of 22 July 1998.
The lawyer retained for him and Officer Bultstra, Mr Van Kleef, was
Brons and Officer Bultstra had completed some assignments and had
been on their way back to the police station. They were in a marked
police car, with Officer Brons driving. They had then received the
radio call about the theft of the scooter. They had been told the
make of the scooter and its colour and had been given a summary
description of the thief and the direction in which he had fled. They
had not been told that he was armed.
in the direction reported, Officers Brons and Bultstra had seen a
scooter and a driver fitting the description given them turning into
the doorway of a lift in the Huigenbos block of flats. This had
surprised them, because they would have expected him to try and evade
arrest on noticing that he was being followed by a marked police car.
Brons and Bultstra had agreed that Officer Bultstra would go after
the thief while Officer Brons parked the car. Officer Bultstra had
run towards the doorway holding a two-way radio. When Officer
Bultstra was at a distance of between twenty and twenty-five metres
from the doorway, the thief had emerged and run for a short distance.
He had stopped and raised his hands when he had seen Officer Bultstra
and shouted something unintelligible. Officer Bultstra had taken hold
of the thief with both hands and had tried to turn him towards the
building. The thief, however, had resisted. Officer Bultstra had
shouted something to him which Officer Brons had been unable to
Brons had understood that the thief would not come quietly and that
Officer Bultstra needed help; he had therefore left the car and run
towards them. He had reached a point about five or seven metres from
the thief when the thief managed to tear himself loose and ended up
at a distance of about three metres from Officer Bultstra. Suddenly
Officer Brons had seen the thief holding a silver-coloured weapon
which he had not seen him draw. It was a small pistol and it was
pointed towards the ground. Officer Brons had not seen whether or not
the pistol was cocked. It had seemed to him that Officer Bultstra had
also seen the pistol, because Officer Bultstra had stepped backwards,
drawing his service pistol and adopting a defensive posture. He had
heard Officer Bultstra shouting “Drop that weapon. Don't be
silly, man.” (“Laat vallen dat
wapen. Doe nou normaal man.”) at least twice.
thief had not reacted by dropping his pistol, much to the surprise of
Officer Brons seeing that Officer Bultstra had him covered. Given
that the thief was armed and apparently had no intention of doing as
he was told, Officer Brons had considered that Officer Bultstra was
under threat. He had considered it highly possible that the thief
would use his weapon against Officer Bultstra. He had been completely
fixated on the thief. He had seen only the thief, holding a pistol
with his finger on the trigger. At that point Officer Brons had not
yet considered it necessary to draw his own service pistol because
the thief was covered by Officer Bultstra. His hand had been close
to, but not on, the holster.
Brons had then seen the thief turn to the right, towards him, and
turn the front of his body in his direction at a distance of five to
seven metres. He had seen the thief raise his pistol and point it in
his direction. Afraid that the thief would fire at him, Officer Brons
had drawn his pistol from its holster with lightning speed
(bliksemsnel) and had immediately fired one shot at the thief.
He had had no time to aim at any particular part of the body. He
remained convinced that if he had not fired first, the thief would
have shot him.
Brons had thought at the time that he had hit the thief high in the
chest. Only later had he learned that he had hit the thief in the
neck. The thief had remained on his feet for a short while longer; he
had then tottered and collapsed, dropping the pistol. He had tried to
stand up, milling his arms about. Officer Brons had pushed the
thief's pistol away with his foot to prevent him from grabbing it.
Bultstra had approached the man as he lay on the ground. Seeing that
the thief was no longer a threat, he had put up his pistol.
Brons had contacted the police station by two-way radio and had asked
for the intervention of the local health authority (Gemeentelijke
Geneeskundige en Gezondheidsdienst, “GG&GD”).
Feeling that they were long in coming, he had again called the police
station and asked them to hurry up.
Bultstra had concerned himself with the victim. He, Officer Brons,
had removed himself from the scene. He had seen a man trying to enter
the doorway and had asked him not to do so because the area had to be
cordoned off for investigation.
Brons and Bultstra had been taken back to the police station by a
fellow officer. Officer Brons had handed in his pistol there.
Officers Brons and Bultstra had received assistance and comfort from
fellow officers and superiors and had been informed about the further
Brons had only fired once. It had never been his intention to shoot
to kill but only to end the life-threatening situation. He felt that
he had had no choice. He greatly regretted that the thief had died.
(c) Officer Bultstra
Officer Brons, Officer Bultstra was interviewed by Detective Chief
Superintendent Van Duijvenvoorde on 22 July 1998 in the presence of
the lawyer Mr Van Kleef.
and Officer Brons had been on their way back to Flierbosdreef police
station after completing an assignment when they had received word by
two-way radio that another policeman was pursuing on foot a thief who
had just stolen a scooter. They had heard the description of the
scooter and the thief, and the direction the thief had taken. It had
not been mentioned that the thief was armed. They had then gone to
intercept the thief.
a person and a vehicle matching the description given travelling
towards a particular high-rise building, they had decided to park the
car and arrest him. They had agreed that Officer Bultstra would leave
the car immediately and pursue the man, after which Officer Brons
would lock up the car and join Officer Bultstra.
Bultstra had seen the man on the scooter ride into the doorway of the
building. Having closed to a distance of twenty metres from the
building, Officer Bultstra had seen the man come running out of the
doorway. Seeing Officer Bultstra, the man had called: “So
what's the matter then? What's the matter then?”
(“En wat nou? En wat nou?”) His arms had
been dangling alongside his body. He had raised them slightly when
asking that question. Officer Bultstra and the man had approached
each other. The man had glanced sideways to the right and left,
apparently looking for a way to evade capture. His preference
appeared to be for an underpass through the building, so Officer
Bultstra had gone to head him off. His intention had been to grab the
man and arrest him.
Bultstra had grabbed the man by his left arm and pushed him bodily
against the building. The man had made an aggressive impression on
him because of his posture and his way of talking, and had appeared
intent on resisting arrest. He had managed to tear himself loose and
turn around. He had then taken two steps backwards, towards the
doorway. His hands had been close to his body and his body had been
poised forwards, and his posture had been threatening.
man had then brought his right hand towards the left of his chest or
his belly, as a person would who was about to draw a firearm from
there. He had looked Officer Bultstra straight in the eye and said:
“So what's the matter then?” (“En wat nou?”).
Officer Bultstra had not seen him stick his hand inside his clothing.
Seeing the gesture, Officer Bultstra had thought that the man was
acting like someone who was about to draw a weapon. His common sense
had told him to be on his guard. He had stepped backwards and placed
his right hand on his service pistol, releasing the holster clip at
the same time. He had not drawn his service pistol but had positioned
himself so as to be able to do so immediately. Pointing to the man
with his left hand, he had called out: “Show your hands. Don't
be silly.” (“Laat je handen zien. Doe normaal.”).
The man had then dropped his hand and resumed his earlier posture,
his arms dangling alongside his body. He had said: “So what is
it then? What is it then?” (“En wat dan? En wat dan?”)
and had walked away from Officer Bultstra. His body had still been
poised towards Officer Bultstra and his eyes had still been directed
towards him. Officer Bultstra had remained in the same position.
man had again brought his right hand towards his body, the same
position as before, and had taken hold of something. Officer Bultstra
had not been able to see what it was. After the man had moved his
hand some distance away from his body, Officer Bultstra had seen that
he was holding a small silver-coloured pistol in his fist.
situation was now so threatening that Officer Bultstra had drawn his
service pistol to protect himself. In view of the man's behaviour he
was afraid that the man might fire. Officer Bultstra had taken hold
of his service weapon in both hands and, adopting a defensive
position, had aimed at the man's chest. He remembered shouting “Drop
it” (“Laat vallen”) several times. He might
have shouted other things, but he did not remember having shouted
anything other than “Don't be silly. Drop it.” (“Doe
normaal. Laat vallen.”). He had seen the man lower the hand
holding the pistol alongside his body, so that the barrel was
pointing towards the ground. The man had kept the front of his body
turned towards Officer Bultstra, his legs slightly apart and his arms
out – that is, not hanging limp – and he had kept turning
his hands so that the pistol also kept changing direction. The barrel
had however been kept aimed at the ground. Officer Bultstra described
the man's posture as that of a cowboy who could start shooting at any
moment. He had felt threatened to the point where he had decided to
fire should the man point his pistol at him.
far as he could recall, this situation had lasted for about four
seconds, during which time he had called out to the man twice to drop
his pistol. This the man had not done. Things had happened very
quickly; he estimated that the time from the moment he grabbed the
man until the fatal shot had been no more than fifteen or twenty
Bultstra had seen the man suddenly react to something. Still in his
cowboy-like position the man had made a quarter turn to the left.
Officer Bultstra could not remember how long this had taken but the
time involved had been very short. The man had raised his right arm
with the pistol somewhat, in a manner in which he had not yet acted.
This had caused Officer Bultstra to think: “Now I will shoot.”
Since the man was raising his hand and arm, Officer Bultstra was
convinced that he was about to fire; he had been building up tension
in his right hand to pull the trigger of his service pistol when he
had heard, on his right, a loud report that he had recognised as a
pistol shot. He had immediately thought: “[Officer Brons] has
got him.” Officer Bultstra had felt so threatened that he would
have fired if Officer Brons had not done so.
Bultstra had noticed immediately that the man had been hit. The man
had moved his upper torso somewhat. His knees had then buckled and he
had fallen to the ground. He had dropped his pistol in falling. He
had tried, unsuccessfully, to get up. Officers Brons and Bultstra had
approached the man from two sides while still keeping him covered.
Having reached the man, Officer Bultstra had put up his service
pistol and grabbed the man by his shoulder. He had wished to prevent
the man from getting up and possibly picking up the pistol. He had
been sitting next to the man. The man had been lying with his back
against Officer Bultstra's knees. At that point Officer Bultstra had
seen Officer Brons approaching from his right. He could not remember
if Officer Brons had still had his service pistol in his hand.
Officer Brons had pushed the man's pistol away with his foot so that
the man could not reach it.
his two-way radio, Officer Brons had reported to the police station
to ask for urgent assistance from the local health authority.
Officers Brons and Bultstra had left the scene of the incident as it
was until other police officers arrived. Officer Bultstra had,
however, loosened the man's clothing to see where he had been hit. He
had been hit in the neck and his shirt had been saturated with blood.
Officer Bultstra had tried to get him to give his name, but had
received no answer. The man had gargled. He had been beyond reach. He
had died quickly.
the other police officers had arrived, Officers Brons and Bultstra
had been taken back to Flierbosdreef police station where they stayed
for some time, estimated by Officer Bultstra as three hours. Officer
Brons had been required to hand in his service weapon. They had had
talks with a number of fellow police officers, including Police
Commissioner Van Riessen, the district chief of police
(districtschef) and the self-help-team (zelfhulpteam).
Bultstra stated that the man himself had been in control of events
(zelf het scenario heeft bepaald). He had had every
opportunity not to draw his weapon, or to drop it after doing so.
Officer Bultstra had shouted warnings to him repeatedly. He had not
responded. Instead, he had stood in front of Officer Bultstra in a
threatening posture with a pistol ready for immediate use. Officer
Bultstra had had no other option but to draw his service weapon to
protect himself. The situation had been so threatening that Officer
Bultstra would have fired to put the man out of action, thus
eliminating the danger to himself and possibly others. As it was,
that had proved unnecessary because Officer Brons had fired first.
(d) Ms Rijssel
Henna Emelita Rijssel, questioned on 24 July 1998, was a social
worker living in Amsterdam.
19 July at around 10 p.m. she and her daughter, Ms Syreeta Michelle
Lieveld, had been walking home from the festival. In an underpass
they had had to make way for a scooter driven by a person whom she
described as a Negroid youth without a crash helmet. They had seen
him proceed on his way and then turn towards one of the doorways of a
high-rise building. They had observed that he was driving unusually
slowly but had paid no further attention. They had, however, seen the
youth come out of the doorway and noticed the scooter inside.
Although some distance away, they had had a good view; it had not
been dark yet.
had seen the youth come out of the doorway and had seen a policeman
run towards him. They had then noticed a police car which they had
not seen or heard until then.
had seen the youth holding his right hand inside his jacket or shirt.
The hand had been on his stomach, just above his trouser band. They
had decided to move closer because something was obviously happening.
Rijssel had seen the youth walk towards the policeman. She had seen
him raising his arms in a non-verbal “What do you want?”
gesture. She had heard no words spoken. The policeman had grabbed
hold of the youth's arm and turned it onto his back. She had had the
impression that the youth was being arrested. She had seen the
policeman trying to push the youth with his face towards the wall.
The youth, however, had torn himself loose.
had then seen the youth again putting his hand inside his shirt, in
the same gesture which she had witnessed before. She had not seen him
pull anything out; she had not at any time seen the youth draw a
policeman had stayed where he was and had not moved closer to the
youth. The youth had stepped sideways. Ms Rijssel had not seen the
policeman draw his firearm.
policeman had come running up. He had stood still at a distance of
about six metres. The youth had still had his hand inside his shirt
near his trouser belt. She had then seen the second police officer
draw his pistol and aim it at the youth. She had heard a shout of
“Put it down” (“Leg neer”), once,
which in her opinion had come from the police officer who was keeping
the youth covered. This had happened after the policeman had drawn
his pistol on the youth. Immediately after the shout of “Put it
down” she had heard one shot fired. The youth had collapsed
Rijssel stated positively that she had not at any time seen the youth
aim a pistol or anything similar at the policeman. She remembered the
youth holding his hand inside his shirt, close to his trouser belt.
She was sure of that, despite the speed with which events had
after the shot had been fired she had run towards the place where the
youth had collapsed. She had shouted to the policemen: “I saw
what you did. That's a human being.” (“Ik
heb gezien wat jullie hebben gedaan. Het is een
policeman had felt the youth's pulse. The youth's arm had fallen
police officers had arrived, including one on a motorcycle who had
asked her to make a statement. She had refused because she did not
wish to make a statement that could be used against the youth and
because her words could be misinterpreted. She had told two police
officers, a man and a woman, who were cordoning the area off, that
they did not need to rope off such a wide area. One of the police
officers had accused her of trying to stir up trouble and had told
her that she did not know what had caused the incident. She had
replied that she was not aware of the cause of the incident but did
know what had happened, and had asked if the police were not supposed
to fire a warning shot before firing at a person. She might well have
said more than that in her emotional state.
20 July 1998 Ms Rijssel had returned to the place where the youth had
been shot to lay some flowers. She had met the youth's family there
and spoken with them. They had told her that they had retained the
lawyer Mr Hamer and she had given them her telephone number. She
had later been contacted by Mr Hamer, who had asked her to make a
statement to Chief Superintendent Van Duijvenvoorde.
(e) Ms Lieveld
Syreeta Michelle Lieveld, questioned on 24 July 1998, was a
schoolgirl born in 1983 and the daughter of Ms Rijssel. The pair
of them had been walking home from the Kwakoe festival on the evening
of 19 July 1998 at around 10 p.m. While walking through a
pedestrian underpass they had been passed by a youth on a scooter.
The youth had been dressed in black. He had not been entirely
dark-coloured. He had worn his hair flat. He had not been wearing a
crash helmet. Ms Lieveld could not describe the scooter.
youth had run the scooter off the path and across the grass towards
the Huigenbos building. Ms Lieveld had not seen him ride the scooter
into the doorway.
Lieveld's mother had then said: “Look, there's police.”
Ms Lieveld had seen a police officer standing in front of the
building, close by the youth. She and her mother had then gone
towards them. Ms Lieveld had seen the police officer trying to arrest
the youth, grabbing hold of him and pushing his face against the
wall. The youth, however, had torn himself loose. He had made a
gesture with his arms as if to say: “What do you want with me?”
youth had moved one of his hands, Ms Lieveld could not remember
which, towards his trouser band. It had seemed as though he had a
pistol there, but that it had of course been a bluff.
second police officer had come running. Ms Lieveld had heard “Drop
it” shouted; she remembered hearing it once. She had seen the
two police officers with drawn service pistols. She had seen the
first police officer, the one who had tried to arrest the youth, with
his pistol drawn but she had not seen him point it at the youth. She
had not seen the youth with a pistol or anything like that.
other police officer had also had his service pistol in his hand. He
had aimed at the youth. She thought that the shot had been fired
immediately after the shout of “Drop it”. After the shot
the youth had turned around some way and collapsed. She had seen him
drop something; she thought it had been a mobile telephone. Later,
having come closer to the scene of events, she had seen a mobile
telephone lying near the youth; she assumed that the youth had
Lieveld could not give an estimate of how far it had been from where
she stood to the place where the youth had collapsed, but it had been
some distance. Things had happened very quickly, as if in a flash.
official record states that the witness made her statement in the
presence of her mother in view of her emotional state.
(f) Mr Van Rij
Merlijn van Rij, questioned on 24 July 1998, was a schoolboy born in
1982 and resident in the Huigenbos building.
19 July 1998 at around 10 p.m. he had been at home with his father,
in the lounge of their first-floor apartment. It had been a warm
night and the windows had been open.
a certain moment he had heard someone shout “Stand still”
once. No more than a second after that, he had heard a bang from the
direction of the doorway which had sounded like a pistol shot. In
view of the shout of “Stand still”, which was unlikely to
have come from a criminal, he had concluded that the shot had been
fired by police. He had wanted to go and watch, but his mother had
not let him because she considered it in bad taste to take an
interest in other people's misfortune. Later that night his father
had gone to take the dog out; he had seen many police and someone
lying underneath a sheet.
(g) Mr Oostburg
Matthew Jiri Oostburg, questioned on 24 July 1998, was a schoolboy
born in 1983.
19 July 1998 at around 10 p.m. he and his father had been walking
from the location of the Kwakoe festival towards the Huigenbos
building, where his father's girlfriend lived. They had noticed the
presence of police on motorcycles, apparently looking for something
before entering a pedestrian underpass, they had heard a sound
identified by Mr Oostburg's father as a pistol shot. It came from the
direction of the Huigenbos building. They had seen police going
towards the Huigenbos building but had been too far away to see what
the way towards the building they had been stopped by police who were
cordoning off the area.
entered the building through a different entrance, they had gone to
the first floor and Mr Oostburg had looked down. He had seen a
coloured youth with a bald head lying motionless in front of the
entrance to the doorway. He had seen a small shiny pistol lying by
the youth's feet. He had heard others say that they had initially
thought that the youth had taken out a mobile telephone and that the
police had fired mistaking it for a pistol. But it had definitely
been a pistol.
Oostburg and others had assumed that the youth had drawn a pistol and
aimed it at the police and that the police had fired for that reason.
had later seen the emergency services arrive. It had been apparent
that the youth was dead because they had covered him with a white
(h) Officer Boonstra
Officer Boonstra was interviewed by Detective Chief Superintendent
Van Duijvenvoorde on 27 July 1998.
stated that he and his colleague Police Officer Dekker had been
unaware of the fact that Moravia Ramsahai was armed. He and Officer
Dekker had been approached by a coloured youth, who had asked them to
follow him and had run on. Since he and Officer Dekker had not
immediately run after him, the youth had turned round and gestured to
them to follow him. This had led them to assume that there was
something the matter and they had followed. It had been Officer
Dekker, who had been closer to the youth than Officer Boonstra, who
had spoken with him. It had also been Officer Dekker who had radioed
through the insurance plate number and possibly the colour of the
scooter as well as the police officers' precise location and the
direction in which they were heading with the youth, but he did not
recall Officer Dekker giving a description of the thief.
they had lost sight of the scooter, they had heard it reported by
radio that there had been a shooting at the Huigenbos building.
Officers Boonstra and Dekker had gone there to see if they could be
of assistance. Not realising that the person who had stolen the
scooter was armed, they had not connected the shooting to the theft.
when they and the owner of the scooter had reached the scene of the
shooting and the owner had recognised his vehicle did they ask him
what precisely had happened. That had been when the owner of the
scooter had told them that he had been forced at gunpoint to
surrender control of the scooter. Officer Boonstra had told him that
he ought to have mentioned that earlier (“Dat had je wel
eens eerder mogen zeggen.”).
Dekker had told Officer Boonstra later that he too had been unaware
that the thief had been carrying a firearm and had been just as
indignant at not having been told. Both officers counted themselves
lucky not to have been fired at during the pursuit.
(i) Mr Hoeseni
Hoeseni was interviewed by Detective Chief Superintendent Van
Duijvenvoorde on 31 July 1998. He was asked to make a further
statement as to when he had mentioned the firearm to Police Officer
- Mr Hoeseni stated that his scooter had been stolen
from him at the Kwakoe festival site on 19 July 1998 between 9 and 10
p.m. A coloured youth had forced him to hand it over at gunpoint. He
recognised the pistol on a photograph bearing the number 10 (see
below for a description of the photographs) as the pistol with which
he had been threatened. He had noticed that the pistol was cocked and
ready to fire. This had frightened him into giving up the scooter.
two police officers, he had run up to them and asked them to follow
him. They had not done so immediately but only after he had waved at
them a second time. While running he had told them about the theft of
the scooter and given them the scooter's insurance documents and a
description of the scooter and the thief.
Hoeseni had told the police officers about the firearm at the same
time as he had handed the insurance papers to them.
he had heard, over the police officers' two-way radio, that there had
been a shooting, he had immediately connected it with the robbery of
his scooter. He had then told the police officers that the thief had
had a small silver-coloured pistol.
(j) Mr Chitanie
Wladimir Mohammed Abzell Ali Chitanie, questioned by Detective Chief
Superintendent Van Duijvenvoorde on 3 August 1998, was a civil
servant born in 1945.
19 July 1998 at around 10 p.m. he had been driving his car along the
Huntumdreef. He had seen a marked police car following in his
rear-view mirror. The police car had been brought to a sudden stop,
at which moment a police officer had emerged and run in the direction
of the doorway of the Huigenbos building. Thinking that something was
happening, Mr Chitanie had decided to have a look for himself. He had
parked his car, got out and walked towards the doorway towards which
the policeman had headed. Street lights had been turned on. It had
been twilight. He estimated the distance from where he was to the
doorway of the Huigenbos building to have been between 75 and 100
had seen a youth aged about twenty, dressed in dark-coloured
clothing, emerge from the doorway. He had not seen any scooter in the
doorway. There had been a policeman standing opposite the youth,
separated by a distance of about six metres. The police officer had
been pointing a pistol at the youth. The youth had been holding some
dark-coloured object, which Mr Chitanie had not been able to
make out, in his right hand and had been pointing it towards the
police officer. The police officer had gestured to the youth with one
hand, apparently ordering him to throw away whatever it was he had in
his hand, while keeping the youth covered with his service pistol in
his other hand. He had not heard anything shouted or said, the
distance being too great. He had seen the youth throw away the
unidentified object in his right hand.
the first police officer was keeping the youth covered, Mr Chitanie
had seen a second police officer come running towards his colleague
with the apparent intention of providing assistance. This second
police officer had drawn his service pistol and had held it in both
hands, levelled at the youth's head. He had heard a shot fired
immediately. The shot had been fired after the youth had thrown the
object away. Events had unfolded very quickly: the lapse of time
between the youth throwing away the object and the firing of the shot
had been a few fractions of a second. The youth had made some
movements in the direction of the lamppost and had collapsed.
that point panic had broken out. Police had arrived in cars and on
motorcycles. After the shooting, more people had joined Mr Chitanie.
The police had ordered them to leave; Mr Chitanie and the others had
left. Mr Chitanie had asked a police officer why no ambulance
was being ordered. The police officer had replied: “We will see
about that later.”
entered the Huigenbos building and looked down onto the scene of
events from the second floor, Mr Chitanie had seen the victim covered
with a white sheet. He had not seen a pistol lying next to the body.
He had heard from bystanders that the youth had thrown away a mobile
telephone, but he had not seen that.
had taken Mr Chitanie six or seven minutes to reach the second floor
of the building. He had seen numbered signs being set out and
photographs being taken. It appeared that the bystanders had not been
meant to see that, because police officers were holding a large sheet
above the body and taking photographs underneath. Mr Chitanie thought
that the youth might at that moment still have been alive, because he
had heard a rattling sound, as if the youth's throat was full of
Chitanie estimated the time needed for the ambulance to arrive at
thirty minutes or more. He had seen someone with medical equipment
examine the victim, together with a person who appeared to be a
Mr Chitanie's opinion, any threat had disappeared after the youth had
thrown away the object. He had not witnessed what had happened
(k) Officer Brons
3 August 1998 Detective Chief Superintendent Van Duijvenvoorde
confronted Officer Brons with the statement by the witness Chitanie
to the effect that Moravia Ramsahai had thrown something away before
the fatal shot. Officer Brons denied this. In view of the threat
posed by the thief, Officer Brons had been much fixated on the
thief's hands. Until the thief drew the pistol, he had had nothing in
(l) Officer Dekker
3 August 1998 Detective Chief Superintendent Van Duijvenvoorde asked
Police Officer Dekker for further information as to when he had
become aware that the theft of the scooter had taken place with a
Hoeseni had told Officer Dekker that he had been pulled off the
scooter but had not mentioned the fact that a firearm had been used.
Both he and Officer Boonstra had therefore assumed that only physical
force had been used.
Hoeseni had given Officer Dekker the scooter's insurance papers
immediately and of his own motion and had at the same time given a
description of the thief. Officers Dekker and Boonstra, joined by
Mr Hoeseni, had run after the thief. However, they had lost him.
Officer Dekker had then passed on the thief's presumed direction of
flight and the insurance registration number via his two-way radio.
no time while they were running had he heard Mr Hoeseni say that the
thief was armed. He had noticed, however, that Mr Hoeseni was
frightened and spoke in a soft tone of voice. It was therefore quite
possible that Mr Hoeseni had mentioned the fact but that he had
not heard it while they were running.
after the report of the shooting had come through had Officer Dekker
heard Mr Hoeseni say: “He had a small silver-coloured pistol.”
They had then gone towards the Huigenbos building. Officer Dekker had
asked Mr Hoeseni: “Why did you not tell us that before?”
but Mr Hoeseni had not given a clear reply. He had appeared very
Officers Dekker and Boonstra had reflected on their luck at not
having been shot. Had Officer Dekker been told at an earlier stage
that the thief had used a pistol to steal the scooter, he would have
passed that information on immediately and before all else. In
addition, he and Officer Boonstra would not have run after the thief:
their supervisory duties at the festival had required them to be
(m) Officer Bultstra
Chief Superintendent Van Duijvenvoorde confronted Officer Bultstra
with the statement by the witness Chitanie on 4 August 1998.
Officer Bultstra consented to being questioned without his counsel
Bultstra considered it unlikely that Mr Chitanie could have parked
his car and walked back to the place from which he claimed to have
witnessed the events in such a short time. Officer Bultstra himself
had needed up to ten seconds to run the fifty metres from where the
police car had been parked to Moravia Ramsahai and Officer Brons.
appeared that Mr Chitanie had missed the struggle with Moravia
Ramsahai; he had not mentioned it in his statement. That would be
consistent with the distance between where Mr Chitanie had parked his
car and the scene of events.
was incorrect that Officer Brons had held his service weapon in one
hand. It took two hands to hold it in the defensive position. Officer
Brons had made gestures, but that had happened before Moravia
Ramsahai drew his pistol.
Ramsahai had had nothing in his hands until the moment he had drawn
his pistol. He had, however, not pointed it at Officer Bultstra; he
had pointed it at the ground. He had held it in his hand
continuously. He had definitely not thrown anything away or dropped
anything. He had only let go of the pistol once Officer Brons had
shot him, but even then only as he collapsed.
Bultstra had held his two-way radio set in his left hand as he had
left the police car. He had kept hold of it until he dropped it. He
did not remember when that had been, but it must have been no later
than when he drew his service pistol because in the defensive
position he had needed both his hands to hold it. He could not
remember either whether he had already dropped the radio at the time
of the struggle. He had, however, later seen it lying on the ground,
level with Moravia Ramsahai's chest and about sixty centimetres away
from him. He had left it there.
ambulance had been called for immediately, not once but twice.
Officer Bultstra had not seen it arrive. By that time he and Officer
Brons were being taken to the police station, having spent five to
seven minutes at the scene of the events.
Bultstra had heard Moravia Ramsahai's death rattle. That had stopped
already before he and Officer Brons had left. It had appeared to
Officer Bultstra that Moravia Ramsahai's lungs were filling with
blood, but Officer Bultstra could do nothing to stop that.
(n) Mr Van den Heuvel
Chief Superintendent Van Duijvenvoorde decided to question Mr Petrus
van den Heuvel again in the light of the statement of Mr Chitanie.
This he did on 4 August 1998.
Van den Heuvel reiterated that he had been fixated on the coloured
man with the firearm. He had clearly seen the coloured man hold a
firearm in his right hand, which he had pointed downwards. The
coloured man's other hand had been empty.
Van den Heuvel had not witnessed the actual shooting, having taken
cover behind the balustrade. He had looked to see what had happened
right after the shot had been fired. This had been only a fraction of
a second later. He had not seen the coloured man's pistol fall to the
ground. When Mr Van den Heuvel had looked, the pistol had been
lying on the ground, next to the coloured man, as shown on a
photograph taken at the scene of the incident. The pistol shown on
another photograph was very similar to that which Mr Van den Heuvel
had seen in the coloured man's hand.
the remainder, Mr Van den Heuvel confirmed his earlier statement.
(o) Officer Van Dongen
Officer Bruin Jan van Dongen was questioned by Detective Chief
Superintendent Van Duijvenvoorde on 4 August 1998. He had been
driving a police car with a police dog along the Huntumdreef. Officer
Van Dongen had heard that a scooter had been stolen at the Kwakoe
festival ground and had heard the description given of the scooter
and the thief. He was looking for the thief. There was no information
that the robbery had taken place at gunpoint.
Van Dongen had been passed by another police car. He had recognised
the driver as Officer Brons. He had seen the police car pull up and
the passenger emerge.
had parked his car and got out. In so doing he had seen Officer Brons
get out of his car. Going round the back of the car to get out the
police dog, Officer Van Dongen had heard a pistol shot from the
direction of the Huigenbos building. The dog had reacted furiously to
the sound. It had been necessary to handle the dog with particular
care, because in its excitement the dog might have attacked people.
had met Officer Brons and had asked him what had happened. Officer
Brons had replied that a pistol had been aimed at the police and a
shot had been fired by the police, but had not named the officer who
had fired the shot.
Van Dongen had walked up to the victim lying on the ground, keeping
at a distance of two metres because of the unpredictable reaction of
the dog. The victim had been motionless, except for opening and
closing his mouth a few times. Officer Van Dongen had heard no death
Officer Van Dongen arrived at the scene, there had been only the two
police officers and the victim. He had not seen anyone else close by.
The dog would have reacted if anyone else had been present.
(p) Ms Hup
Lambertina Helena Hup was interviewed by Detective Chief
Superintendent Van Duijvenvoorde on 5 August 1998. She had been the
driver of the ambulance which had been sent out to collect Moravia
Ramsahai after he had been shot.
10.02 p.m. the ambulance crew had received an instruction to drive to
the Huigenbos building because someone had been shot. The ambulance
had left at 10.04 p.m. and arrived on the scene at 10.14 p.m. –
well within the time allowed, which was fifteen minutes.
Hup and the other member of the ambulance crew, Mr Van Andel, had
taken out the stretcher, which was given to police officers. Ms Hup
and Mr Van Andel had then taken their equipment and had run towards
the victim. There had been a small silver-coloured pistol lying next
to him, which she and Mr Van Andel had had to avoid touching while
doing their work.
Hup had not heard the victim rattle or make any other sound. She had
assisted Mr Van Andel as he gave first aid. They had connected the
victim to the heart monitor. Mr Van Andel had checked eye pupil
reflexes by shining a light into each eye but had got no reaction and
had noted the absence of a pulse and breathing. From the information
thus obtained Mr Van Andel had concluded that the victim had
died on the spot.
Hup and Mr Van Andel had seen the wound where the bullet had entered,
which was in the neck on the right. They had not seen the exit wound.
Hup and Mr Van Andel had then covered the body with a white sheet.
They had then spent some time talking with police officers. They had
not removed the body, which had been picked up later by a special
(q) Mr Van Andel
Leendert van Andel, a paramedic, had been the other member of the
crew of the ambulance driven by Ms Hup. Detective Chief
Superintendent Van Duijvenvoorde questioned him on 5 August 1998.
around 10.02 p.m. they had received instructions to go to the
Huigenbos building where someone had been shot. They had been given a
route to take. They had left at 10.04. The blue flashing light and
the siren had been switched on continuously. They had arrived at the
scene at 10.14.
Hup and he had run quickly towards the victim. Police officers had
carried the stretcher, he and Ms Hup the other equipment.
A police officer had told him that the youth had been shot. He had
seen the entry wound in the neck but no exit wound. There had been a
small pistol lying close by the victim. Mr Van Andel had not noticed
a two-way radio lying on the ground.
victim had given no signs of life. There had not been any rattle. Mr
Van Andel had checked his vital functions and had noted the absence
of any heart function (checked with a heart monitor) or pupil
reaction. This, combined with the gunshot wound, had led Mr Van Andel
to conclude that the youth was dead. After conferring briefly with
one of the police officers present and telling him that there was
nothing more to be done, he and Ms Hup had covered the body with
Van Andel and Ms Hup had then returned to the ambulance and had
reported themselves ready for further duty at 10.35 p.m. The body had
been removed later.
(r) Mr Pel
John Pel, whom Detective Chief Superintendent Van Duijvenvoorde
questioned on 7 August 1998, was a police forensic investigator
(technisch rechercheur). He had been on call on the evening of
19 July 1998. He had been instructed to go to the Huigenbos building
where there had been a shooting. He had arrived after the ambulance
had left. On his arrival at the scene, he had seen a white sheet
covering the victim and a pistol lying on the ground.
Pel and a colleague, Mr Popping, had identified items of evidence and
marked them with numbered markers before photographing them. He had
also examined the body of the victim and in particular his hands for
traces of gunshot residue (schotrestbemonstering). This had
required the lifting of the sheet covering the body.
(s) Ms Jalink
- Ms Hèlen Milian Jalink was questioned by
Detective Chief Superintendent Van Duijvenvoorde on 11 August 1998.
She was a maternal great-aunt of Moravia Ramsahai.
Monday 20 July 1998 an aunt of Moravia Ramsahai's had told her that
Moravia had stolen a scooter and had been shot dead for that reason
by the police. That evening, between 6 and 7 p.m., she and other
relatives of the deceased had held a prayer meeting at the place
where it had happened.
this prayer meeting, two persons were presented to her who had
allegedly witnessed the events. They had told her that, when driving
by in a car, they had seen a parked police car with the doors open,
one policeman standing hear the Huigenbos building and another
policeman running in the same direction. They had seen a youth, who
had apparently come out of the doorway, walking with his hands
raised. She had not been told how high he had raised his arms, but
they had told her that he had raised them. They had not told her of
any struggle between the youth and the police officer. They had not
told her that the first police officer had kept the youth covered
with his service pistol. The second police officer, the one who had
come running, had shot the youth down. They had not seen the youth
with any firearm; they had been definite about that. They had seen
the youth being hit and collapsing. They had seen him covered with a
persons present had mentioned a mobile telephone which the police had
said was a pistol.
two persons who had said that they had witnessed the shooting had
been evasive when asked whether they were prepared to make statements
to the police. They had been more willing to talk to a lawyer. An
appointment had been made for this purpose with Mr Hamer, the
applicants' representative in the proceedings now pending before the
Court, but they had failed to turn up. Ms Jalink had been told that
they had gone to Germany.
two individuals were Gypsies who spoke limited Dutch and English. Ms
Jalink had no idea why they were so reluctant to co-operate fully.
(t) Mr Chitanie
- Detective Chief Superintendent Van Duijvenvoorde
interviewed Mr Chitanie a second time on 17 August 1998.
Chitanie repeated that he had not witnessed any struggle between the
victim and the first police officer.
whether he had seen a policeman with a dog, he answered that he had
not paid attention to anything other than what was happening where
the victim lay. He had, however, seen police officers with dogs; he
did not remember how many. There had also been civilians with dogs.
No police officer with a dog had passed close by him as he was
standing still witnessing events from a distance.
Chitanie remembered a police officer telling him that “they”
– meaning the police – would decide when the ambulance
would come; that although the victim could no longer talk, “they”
could; and that there were other wounded persons, who had fled.
Chitanie had seen Gypsies and had been told that they had seen
everything. However, they would not co-operate because they were
members of a criminal organisation.
(u) The applicants
7 August 1998 Detective Chief Superintendent Van Duijvenvoorde
interviewed the applicants. They told him that they were not aware
that Moravia Ramsahai had had a pistol and could not imagine this to
be the case. Moravia Ramsahai had, however, possessed a mobile
telephone, which was nowhere to be found. The third applicant also
told Detective Chief Superintendent Van Duijvenvoorde that he had
heard of two Gypsies who had witnessed the shooting, but who were
unwilling to provide information because they were residing illegally
in the Netherlands.
4. The autopsy and toxicological examination
autopsy was performed on Moravia Ramsahai's body on 20 July 1998
by a pathologist at the Forensic Laboratory (Laboratorium voor
Gerechtelijke Pathologie) in Rijswijk. The pathologist drew up a
detailed report, according to which Moravia Ramsahai had been hit by
one bullet in the neck area. The bullet had ruptured major blood
vessels and organs, including the brachiocephalic (innominate) artery
and vein, and the right lung. These injuries had led to Moravia
to a report of a toxicological examination (dated 23 December
1998), a blood sample taken from Moravia Ramsahai's body contained
0.85 milligrams of alcohol per litre, a urine sample contained 1.51
milligrams per litre, the vitreous humour of the left eye contained
1.53 milligrams per litre and that of the right eye contained 1.55
milligrams per litre. The presence of amphetamines in the urine
sample was initially suspected but could not be confirmed by
subsequent testing. Other substances found in the urine sample
included psilocine (an alkaloid compound found in certain
hallucinogenic toadstools – genus Psilocybe –
known colloquially as “magic mushrooms”). The
concentration of psilocine in the blood was too low to be determined.
drawings or photographs were appended to the autopsy report as
contained in the investigation file.
5. Other investigative measures
29 July 1998 Detective Chief Superintendent Van Duijvenvoorde
telephoned the Royal Netherlands Meteorological Institute inquiring
after the weather conditions on the evening of 19 July. He was given
the following information:
“Warm day and evening; somewhat overcast
9.45 p.m. Sundown
10 p.m. Twilight
10.30 p.m. Dark”
30 July 1998 Detective Chief Superintendent Van Duijvenvoorde
interviewed the twelve-year-old Miss Sangeeta Edwina Pamela Mungra.
She confirmed what she had stated to members of the mobile special
operations unit on the night of 19 July. She added that she had only
looked outside after having heard the bang. Moravia Ramsahai was
already lying on the ground. She had not seen the police officers
properly. She had gone back up, glanced down from the seventh floor
and gone inside.
Chief Superintendent Van Duijvenvoorde had returned to the scene of
the incident with Ms Rijssel and Ms Lieveld and with Mr Chitanie
and his wife after taking their respective statements. They had shown
him where they had been standing and Detective Chief Superintendent
Van Duijvenvoorde had paced the distance to the lamppost where
Moravia Ramsahai had lain. This had been about 57 metres in the case
of Ms Rijssel and Ms Lieveld and about 58 metres in the case of
Mr and Mrs Chitanie.
Chief Superintendent Van Duijvenvoorde had also gone back with
Officer Bultstra, who had shown him where he thought Officer Brons
had parked the car. This was about 48 metres away from the lamppost.
He had asked Officer Bultstra to run that distance and timed him with
a stopwatch. It had taken him 9.4 seconds. Detective Chief
Superintendent Van Duijvenvoorde noted in his report that the
distance from where the car was parked had actually been measured on
the night of the shooting and found to be 56 metres.
6. Other police records
Detective Jacob Cornelis Peter Schultz, a police officer serving at
Flierbosdreef police station, officially seized the body where it lay
at 10.02 p.m. and provisionally identified it as Moravia Ramsahai's
from identity documents found in his clothing. According to a further
official record, also by Senior Detective Schultz, the body was shown
to Mrs Ruth Helen Versteeg-Tewari, Moravia Ramsahai's mother, and
Mr Carlitto Marciano Farook Alihusain, his cousin, on
20 July 1998 at 2.15 p.m. They both recognised the
body and identified it as Moravia Ramsahai's.
report drawn up by forensic investigators (technisch rechercheurs)
John Pel and Jan Popping describes the action taken following the
incident to secure information and evidence at the scene of the
shooting. It records the location of the body. Next to it Officers
Pel and Popping had found a Beretta 950 B pistol, calibre 6.35 mm,
with the hammer cocked. They had also found a spent cartridge. They
had found the scooter in the doorway. Next to the doorway there was a
staircase, closed from the outside by tall windows. In one of these
windows they had found a bullet hole. Under the bullet hole they had
found a bullet lying on the floor. No ricochet marks had been found
in the stairway. This had made it impossible to determine the
bullet's precise trajectory. Twenty-nine photographs were appended to
this record, photocopies of which – in black and white –
are contained in the Court's file.
4 August 1998 Police Superintendent Ronald Groenewegen of the
Amsterdam/Amstelland police drew up a record describing the events
which he himself had witnessed. On the evening of 19 July 1998
Superintendent Groenewegen had been out in uniform, in charge of the
police detachment monitoring the Kwakoe festival. At 9.55 p.m. he had
heard on his two-way radio that two surveillance officers were
pursuing a thief who had stolen a scooter. From other messages he
concluded that other officers had also set off in pursuit, including
Officers Brons and Bultstra in a police car. At around 10 p.m.
Superintendent Groenewegen had heard that Officers Brons and Bultstra
were pursuing the thief in the direction of the Huigenbos building.
Shortly afterwards, he had heard that there had been shooting and
that an ambulance was needed. Superintendent Groenewegen had
immediately made his way to the Huigenbos building. Upon arrival, he
had seen a man lying on the ground, wounded in the neck. He had seen
a silver-coloured pistol lying on the ground, about one metre from
the man's feet. He had also spotted a police two-way radio lying on
the ground, about one metre from the body at hip level. The
ambulance had arrived at approximately 10.20 p.m. and its crew had
emerged with a stretcher. Shortly afterwards, someone had thrust a
two-way radio set into Superintendent Groenewegen's hands, telling
him that it was Officer Bultstra's. Superintendent Groenewegen had
understood that this was the set which he had seen lying on the
file contains an official record of the seizure of a tape-recording
made of police two-way radio conversations on the night of 19 July
1998 and a transcript. According to the transcript, Officer Dekker
reported the theft of the scooter, giving a description of it and the
thief. This report is answered by an unknown police officer on a
motorcycle and Officer Bultstra. Officer Bultstra reports, using his
two-way radio, that a scooter matching the description given has been
spotted. The police officer who reports that he has fired and
requests an ambulance is stated to be Officer Brons.
official record states that video recordings made by a closed-circuit
television system in the Burger King restaurant on Leidseplein,
shortly before the time of the shooting, show Moravia Ramsahai
official records drawn up by police officers describe personal
effects found on Moravia Ramsahai's body – clothing, jewellery,
the contents of his pockets – and their return to his next of
kin, the return to Vinodkumar Hoeseni of the scooter taken from him
by Moravia Ramsahai, and the opening of a temporary document register
for the case.
file also contains a printout giving the results of the firearms
training undergone by Officer Brons in the year before 19 July 1998.
It shows that during this period Officer Brons had fired 390 practice
rounds, scoring an average of 88.80% hits, and had undergone
refresher training on 10 July 1998.
file contains no record of any examination of the service weapons
carried by Officers Brons and Bultstra at the relevant time or of the
spent cartridge and the bullet found at the scene of the incident.
B. Proceedings brought by the applicants
11 September the public prosecutor wrote to the parents of Moravia
Ramsahai informing them that she had come to the conclusion that the
shooting had been an act of self-defence and had therefore decided
not to bring a prosecution against Officer Brons. On 23 September
1998 Mr Hamer wrote to the public prosecutor announcing the
intention of the third applicant to seek a court order for the
prosecution of Officer Brons.
applicants were granted access to the investigation file. On
2 October 1998 they applied for such an order to the Amsterdam
Court of Appeal (gerechtshof) by means of a complaint about
the failure to bring a prosecution (Article 12 of the Code of
Criminal Procedure – see below). The application was signed by
Mr Hamer as the applicants' representative and by each of the
applicants individually. They stated that the information available
did not admit of the conclusion that the shooting of Moravia Ramsahai
by Officer Brons was sufficiently justified. They also pointed out
that certain key parts of the investigation after the shooting had
been carried out by the Amsterdam/Amstelland police force –
that is, Officer Brons's direct colleagues – and argued on that
ground that the investigation had not been “effective”
and “independent”. Further complaints addressed the
failure to question Officers Brons and Bultstra until several days
after the event, the failure to question all the police officers who
had arrived at the scene after the shooting about what had been said
by Officers Brons and Bultstra, the failure to determine the precise
trajectory of the bullet (which the applicants submitted would have
been possible), the failure to secure gunshot residue samples from
the hands of Officers Brons and Bultstra, the failure to conduct a
reconstruction of the incident and the absence from the autopsy
report of drawings or photographs showing the entrance and exit
wounds caused by the bullet. Reference was also made to Police
Commissioner Van Riessen's statement, as reported in the newspaper De
Telegraaf, to the effect that he would not allow an independent
inquiry, and to the fact that the Chief Public Prosecutor
(hoofdofficier van justitie) of Amsterdam retained overall
responsibility for the investigation and any decision to prosecute.
8 January 1999 the Acting Procurator General (plaatsvervangend
procureur-generaal) at the Amsterdam Court of Appeal submitted an
opinion in response to the applicants' complaint about the failure to
prosecute Officer Brons. He considered it sufficiently clear from the
evidence available that Officer Brons had acted in self-defence and
was not convinced that Public Prosecutor De Vries, who had decided
not to prosecute, was in any way biased. Although perhaps some might
have preferred the non-prosecution decision to have been taken by an
official body further removed from the Amsterdam police, that was not
a wish which needed to be taken into account by the courts. It
followed that the applicants' complaint of 2 October 1998 was
23 February 1999, Mr Hamer, having been informed of the date on which
a hearing would be held to consider the applicants' said complaint,
wrote to the Court of Appeal asking for the hearing to be public.
the same day Mr Hamer wrote to the Acting Procurator General at the
Court of Appeal, complaining about the failure of the registry of
that court to provide him with copies of the complete case file and
asking for this failure to be redressed. He made a similar request to
the President of the Court of Appeal.
registrar of the Court of Appeal replied on 24 February 1999,
pointing out that the question to be decided was whether to hold a
public hearing; in such circumstances it was appropriate for
participants in the hearing to be allowed to view the file, but for
reasons of caution copies were refused. By a separate letter of the
same date, the registrar informed Mr Hamer that the hearing in
question would not be public, but that Mr Hamer could raise the
issue at the hearing if he so desired.
Acting Procurator General replied on 25 February 1999 that he was not
an appellate body competent to review decisions of the registrar of
the Court of Appeal to withhold documents. In any event, Mr Hamer
had been able to see all available documents.
applicants' complaint under Article 12 of the Code of Criminal
Procedure was heard in chambers by a “judge delegate”
(raadsheer-commissaris) on 1 March 1999. Mr Hamer made
extensive oral submissions on the applicants' behalf.
19 March 1999, with the consent of the Advocate General in charge of
the case, Mr Hamer wrote to the judge presiding the chamber of the
Court of Appeal which was to hear the applicants' complaint about the
failure to prosecute, pointing to an alleged inconsistency between
the statements of Officers Brons and Bultstra and the statements of
other police officers, as reported in the press release, which in his
submission would justify a further criminal investigation.
26 April 1999 the Court of Appeal dismissed the applicants' complaint
against the public prosecutor's decision not to prosecute. In its
reasoning it endorsed the decision of the “judge delegate”
not to hold a public hearing. It found that, in the light of the
applicable legal provisions, it would go beyond the powers of the
judiciary to develop the law if a hearing, the purpose of which was
to decide whether a particular person should be put on public trial,
were itself held in public. Moreover, that would defeat the purpose
of the applicable legal provisions.
to the merits of the case, the Court of Appeal was satisfied that
Officer Brons had acted to avert a threat of harm by a deadly weapon
and had acted in legitimate self-defence. It based this finding on
the statements of Officers Brons and Bultstra and Mr Van den Heuvel.
It added that if there had been more time, it might have been
possible to avoid inflicting a lethal wound; however, an immediate
reaction had been required in the circumstances, as had subsequently
been borne out by the fact that Moravia Ramsahai's pistol had had a
round chambered and its hammer cocked in the firing position. This
conclusion was reinforced by the available information that earlier
that day he had stolen a vehicle at gunpoint and used the pistol in a
threatening way on at least one other occasion, as well as by the
retrospective finding of traces of alcohol and the active ingredient
of hallucinogenic toadstools in Moravia Ramsahai's body. The other
witness statements available were either plainly incorrect (as in the
case of Mr Chitanie and Ms Rijssel), or irrelevant, or did not
materially affect the above findings.
the Court of Appeal agreed with the applicants that a reconstruction
would have been desirable, it found nothing to suggest that the
evidence available had not been investigated conscientiously. Nor
could the fact, as alleged by the applicants, that they or their
counsel had been denied access to certain documents lead to any
II. RELEVANT DOMESTIC LAW
A. Criminal procedure
the time of the events complained of, relevant provisions of the Code
of Criminal Procedure provided as follows:
“1. If the perpetrator of a punishable
act is not prosecuted, or if the prosecution is not pursued to a
conclusion, then anyone with a direct interest (rechtstreeks
belanghebbende) may lodge a written complaint with the Court of
Appeal within whose area of jurisdiction the decision has been taken
not to prosecute or not to pursue the prosecution to a conclusion.
“1. The Court of Appeal shall not take
its decision without first having heard representations from the
complainant, or at least after having properly summoned the
“1. The Court of Appeal may summon the
person whose prosecution is being sought in order to afford him the
opportunity to present observations on the request made in the
statement of complaint and the grounds on which it is based. Such
summons shall either be accompanied by a copy of the statement of
complaint or contain an indication of the facts to which the
2. No order of the kind referred to in
Article 12i shall be given unless and until the person whose
prosecution is being sought has been heard by the Court of Appeal, or
has at least been properly summoned.”
“1. The complainant and the person
whose prosecution is being sought may be assisted before judges
sitting in chambers. They may be represented by counsel ...
2. The president of the Court of Appeal shall
... allow the complainant and the person whose prosecution is being
sought, as well as their counsel or authorised representatives
(gemachtigden), to inspect the case file if a request is made
to that effect. Inspection shall take place in the manner determined
by the president. The president may, of his own motion or at the
request of the Procurator General, exempt particular documents from
inspection in the interests of privacy, the investigation, the
prosecution of criminal acts, or on significant general-interest
“The person whose prosecution is being sought
shall not be obliged to answer questions put to him in chambers. He
shall be so informed before the hearing begins and that fact shall be
mentioned in the official record.”
“1. If the complaint falls within the
Court of Appeal's jurisdiction, the complainant can be admitted (de
klager ontvankelijk is), and if the Court of Appeal finds that a
prosecution ought to have been brought or pursued to a conclusion,
the Court of Appeal shall order the prosecution to be brought or
pursued in respect of the fact to which the complaint relates.
2. The Court of Appeal may also refuse to
give such an order for reasons relating to the general interest.
3. The order may also include the direction
(last) that the public prosecutor shall make the request
referred to in Article 181 or Article 237 § 3 [i.e. a
request to the investigating judge (rechter-commissaris) to
initiate or continue a preliminary judicial investigation
(gerechtelijk vooronderzoek), respectively] or that the person
whose prosecution is being sought shall be summoned for trial. The
first-mentioned order may also be given by the Court of Appeal if the
public prosecutor has already had the person whose prosecution is
being sought officially notified of the decision of closure of a
preliminary judicial investigation or if the time-limit prescribed in
Article 237 § 3 has already expired.
4. In all other cases the Court of Appeal
shall ... dismiss the complaint.”
“1. Reasons shall be given for any
decision taken in chambers. If a public hearing in chambers is
prescribed, such decision shall be delivered in open court.
4. Unless otherwise provided, the decision
shall be notified to the suspect and the other participants in the
proceedings without delay.”
B. The public prosecution service
1. The Judiciary (Organisation) Act
- At the time of the events complained of, relevant
provisions of the Judiciary (Organisation) Act (Wet op de
rechterlijke organisatie) provided as follows:
“The public prosecution service shall have
exclusive responsibility for upholding the laws, prosecuting all
criminal acts and ensuring the execution of all criminal judgments.
“Officials of the public prosecution service shall
follow the orders given to them in the course of their official
duties, in the name of the Monarch, by the competent authority.”
“... [P]ublic prosecutors and acting public
prosecutors shall, in their official duties, report to the head of
the public prosecution department (parket) in which they carry
out their duties.”
2. The Code of Criminal Procedure
provisions of the Code of Criminal Procedure provided as follows:
“1. The Procurator General at the Court
of Appeal shall, within the area of jurisdiction of the Court of
Appeal to which he is appointed, ensure the proper investigation of
the criminal acts which are triable by the regional courts
(arrondissementsrechtbanken) or the district courts
2. To that end, he shall give orders to the
heads of the public prosecution departments appointed to the regional
“1. The public prosecutor shall be
charged with the investigation of criminal acts which are triable by
the regional court to which he is appointed and by the district
courts within the area of that regional court's jurisdiction, as well
as the investigation, within the area of that regional court's
jurisdiction, of criminal acts triable by other regional courts or
2. To that end, he shall give orders to the
other persons charged with [such] investigation. ...”
C. Authority over the police
Police Act 1993 (Politiewet), in relevant part, provides as
“1. If the police act in a municipality
to maintain public order and to carry out their task of assisting the
public (hulpverleningstaak), they shall be under the authority
of the Burgomaster.
2. The Burgomaster shall be empowered to give
the police officers directions in carrying out the tasks referred to
in the first paragraph.”
“1. If the police act to maintain legal
order through criminal law enforcement, or carry out tasks in support
of the administration of justice, they shall be under the authority
of the public prosecutor.
2. The public prosecutor shall be empowered
to give the police officers directions in carrying out the tasks
referred to in the first paragraph.”
D. Instruments governing the use of force by the police
1. The Police Act 1993
8 § 1 of the Police Act 1993 provides as follows:
“A police officer appointed to carry out the tasks
of the police force shall be authorised to use force in the lawful
exercise of his duties when it is justified by the purpose thereby
intended to be served, also taking into account the dangers involved
in such use of force, and when that purpose cannot otherwise be
served. Use of force shall be preceded, if possible, by a warning.”
2. The Standing Orders 1994
the relevant time, the Standing Orders for the Police, the Royal
Military Constabulary and officers invested with special
investigative powers (Ambstinstructie voor de politie, de
Koninklijke Marechaussee en de buitengewone opsporingsambtenaar)
provided, in relevant part:
“1. Use of a firearm, other than a
firearm suitable for automatic fire or long-range precision fire, is
(a) to arrest a person who poses a firearms
hazard (vuurwapengevaarlijk persoon);
(b) to arrest a person who is trying to
evade, or has evaded, being arrested or brought before the competent
legal authority (die zich aan zijn aanhouding of voorgeleiding
tracht te ontrekken of heeft onttrokken) and who is suspected or
has been convicted of a serious indictable offence (ernstig
misdrijf) which must in addition be considered a serious
disruption of legal order.
3. In the cases referred to in the first
paragraph under (a) and (b), the firearm shall not be used if the
identity of the person to be arrested is known and it may reasonably
be assumed that delaying the arrest will not jeopardise legal order
in a manner that may be considered unacceptable. ...”
“1. Immediately before he uses a
firearm, other than a firearm suitable for automatic fire or
long-range precision fire, the officer shall issue a warning, in a
loud voice or in another form that cannot be misunderstood, that fire
will be opened if the order is not followed without delay. Such a
warning, which may if necessary be replaced by a warning shot, shall
be omitted only if the circumstances do not admit of it.
2. A warning shot shall be fired in such a
way as to avoid, as far as possible, endangering persons or
3. The Police Weapons Rules 1994
on duty, uniformed police in the Netherlands may be armed with a
semi-automatic pistol. Police officers are required to maintain
proficiency in the use of their firearms, failing which they are not
allowed to carry any.
E. Instruments governing the State Criminal
1. The Police Act 1993
43 of the Police Act provides as follows:
“1. For tasks determined by the
Minister of Justice, after consultation with the Minister of Internal
Affairs, the Procurator General shall have special-duty police
officers (bijzondere ambtenaren van politie) ... at his
2. The Minister of Justice shall be charged
with the management of the police officers referred to in the first
paragraph. These police officers shall ... be appointed, promoted,
suspended and dismissed by the Minister of Justice.”
2. Rules governing the organisation of the operational
divisions of the Public Prosecution Service
to Rule 1 of the Rules governing the organisation of the operational
divisions of the Public Prosecution Service (Organisatieregeling
dienstonderdelen Openbaar Ministerie), the State Criminal
Investigation Department is a nationwide service placed directly
under the primary collective responsibility of the Procurators
General at the Courts of Appeal. Its day-to-day affairs are managed
by a Director who reports to the Procurators General (Rule 3).
F. Domestic legal developments since the Chamber
1. Parliamentary questions
Chamber judgment received considerable media attention in the
Netherlands. On 23 November 2005 two members of the Lower House
(Tweede Kamer) of Parliament, Mr P. Straub and Mr A. Wolfsen,
asked the Minister of Justice to state his views on the Chamber
judgment and the resulting need for changes in domestic law and
Minister of Justice's reply was received in Parliament on 16 December
2005 (Tweede Kamer der Staten-Generaal, Aanhangsel van de
Handelingen – Lower House of Parliament, Appendix to the
parliamentary record – 2005-2006, no. 567, pp. 1209-10). The
following is excerpted from it:
“2. It is important to note that there is no
question of a substantive violation of Article 2 of the Convention;
the Court is unanimous in finding that the police officer acted in
self-defence. The Court concludes that there has been a procedural
violation of Article 2 of the Convention on two points: the
(excessively) late involvement of the State Criminal Investigation
Department in the investigation and the fact that the decision under
Article 12 of the Code of Criminal Procedure not to prosecute the
policemen involved was not [given in] public. As to the involvement
of the State Criminal Investigation Department a few matters should
be noted. The Court does not criticise the position of the State
Criminal Investigation Department in relation to the police as such;
it finds explicitly that that position is consonant with the
independence required by Article 2 of the Convention. However, in
this case the investigation into the shooting was carried out during
the first fifteen hours by police officers belonging to the same
police force as the police officer who had fired the fatal shot. Only
after that was the investigation taken over by the State Criminal
Investigation Department. The Court finds that the (independent)
State Criminal Investigation Department became involved in the
investigation too late in this specific case. Since the decision of
the Amsterdam Court of Appeal of 23 June 2004 in the Mercatorplein
case (unpublished) the duty system of the State Criminal
Investigation Department has been improved (aangescherpt), so
that they can be at the place of the incident sooner. The State
Criminal Investigation Department now reaches the scene of events
within, on average, one hour to one hour and a half after the
incident is reported. It is therefore no longer possible to conclude
that the procedures now followed in the Netherlands as regards
investigations into fatal shootings involving police officers are not
compatible with the Convention. I am therefore of the opinion that
structural changes in the existing procedures are not needed. It is,
however, useful to make the procedure more precise on some points, in
particular as regards the involvement of the State Criminal
Investigation Department. To this end, the Board of Procurators
General (College van procureurs generaal) is drawing up a
new 'Instruction on how to act in the event of the use of force by a
(police) officer' (Aanwijzing handelwijze bij geweldsaanwending
(politie)ambtenaar), hereafter 'the Instruction'), to replace [an
earlier instruction]. This Instruction will explicitly provide that
the State Criminal Investigation Department shall be informed
immediately (terstond) in cases where there has been use of
force by a police officer, and that the duty officer concerned from
the State Criminal Investigation Department shall proceed to the
scene of the incident as quickly as possible. Until the moment he
arrives, the local police force shall only act to freeze the
situation, for example by cordoning off the scene of the incident.
However, the local force will, in principle, not carry out
investigative measures. This Instruction is expected to enter into
force early next year.
3. In a decision such as provided for in
Article 12 of the Code of Criminal Procedure, the complainant's
interest in publicity is opposed to the interest in secrecy of the
person whose prosecution is sought. The starting point, for the
present, is that during the phase in which a decision has yet to be
taken as to whether a person is to be prosecuted, that person's
interest in avoiding publicity outweighs the complainant's interest
in publicity. Since a decision under Article 12 of the Code of
Criminal Procedure does not concern a 'criminal charge' in the sense
of Article 6 of the Convention, the requirement of publicity for such
decisions does not flow from that Article. In the relevant judgment
of the European Court of Human Rights, the requirement of publicity
is however derived from Article 2 of the Convention. The Court takes
the view that the decision should have been given in public, in view
of the seriousness of the case and the fact that it concerned a
person invested with public authority. It will not be possible to
give effect to the judgment without amending Article 12 of the Code
of Criminal Procedure.
At the moment we are still examining the question
whether to introduce a request for referral to the Grand Chamber
under Article 43 of the Convention. I will inform you of the outcome
early next year.
4. The Court finds that the Public
Prosecution Department's position in relation to the police is
sufficiently independent. The fact that a public prosecutor is
dependent on the police for the provision of information and support
does not affect this finding. The Court notes in addition that the
actions of the public prosecutor are subject to independent
supervision by the courts. In this case the public prosecutor in
charge of the case was a public prosecutor with particular
responsibility for the area within which the work was carried out at
Flierbosdreef police station, at which station the police officer
concerned worked. I share the Court's view that it is undesirable
(from the point of view of independence) for a public prosecutor to
maintain excessively close ties with the police force to which the
police officers concerned belong. In that connection I refer to the
said Instruction of the Board of Procurators General. This
Instruction will provide that in cases such as the present the
investigation will in no event be led by a public prosecutor who
maintains close ties with the district to which the police officers
belong, for example the district public prosecutor. I note in
addition that the Advisory Board on Police Use of Firearms
(Adviescommissie Politiëel Vuurwapengebruik) gives advice
on the follow-up to investigations into police use of firearms
actually involving firing and where investigations have actually been
carried out by the State Criminal Investigation Department. The Chief
Public Prosecutor is obliged to submit to the Advisory Board the
decision he proposes to take. In that way a kind of 'second opinion'
is built into such cases.”
2. Instruction on how to act in the event of use of
force by a (police) officer
new Instruction of the Board of Procurators General, which the
Minister announced for early 2006, was in fact published on 26 July
2006 (Official Gazette – Staatscourant – 2006,
no. 143). The Board of Procurators General constitutes the
highest leadership of the Public Prosecution Service and is
answerable, through its chairman, to the Minister of Justice.
explanatory note states that the Instruction is intended as a
follow-up to, inter alia, the Chamber judgment in the Ramsahai
case, in order better to clarify the investigative tasks of the
State Criminal Investigation Department and the role of the local
Instruction covers not only police officers but also other officials
with police powers, including the Royal Military Constabulary
(Koninklijke marechaussee) and members of the armed forces
exercising police duties. It is applicable in cases involving the use
of firearms causing death or injury and other cases in which the use
of force has resulted in death or serious injury.
an incident has taken place to which the Instruction applies, the
investigation will be carried out by the State Criminal Investigation
Department. The regional police force is to inform that department of
the incident immediately. The duty officer from the State Criminal
Investigation Department will proceed to the scene of the incident as
quickly as possible. The local police are to take any necessary
urgent measures, such as cordoning off the area concerned, caring for
any casualties and taking down the names of any witnesses; they are
not themselves to carry out any investigations unless and to the
extent that their involvement is unavoidable.
investigations that cannot be carried out by the State Criminal
Investigation Department itself are done by the Internal
Investigations Bureau (Bureau Interne Onderzoeken) of the
police region concerned or by members of a neighbouring police force.
For any technical investigations the assistance of forensic
investigators from another police region will be sought.
presumption is that a police officer who needs to resort to force in
the exercise of his duty is normally entitled to claim justification
through superior orders or self-defence. A police officer in such a
position is therefore not viewed as a criminal suspect unless it is
clear at the outset that there is reasonable doubt on this point; he
will be questioned as a witness, though under the caution that he is
not obliged to incriminate himself.
Chief Public Prosecutor, who bears the ultimate responsibility for
the investigation and the decision whether to bring a prosecution, is
required to ensure that the investigation is not under any
circumstances supervised by a public prosecutor who maintains close
links with the police unit to which any police officers concerned
belong; every appearance of a lack of independence is to be avoided.
the violent incident has involved the use of a firearm, then before
deciding whether or not to bring a prosecution the Chief Public
Prosecutor is required to submit the decision he proposes to take and
the supporting documents to the Advisory Board on Police Use of
Firearms, which will give an advisory opinion within seven working
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
2 of the Convention provides as follows:
“1. Everyone's right to life shall be
protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”
applicants raised a number of complaints under
Article 2 of the Convention.
submitted, firstly, that the death of Moravia Ramsahai had not been
absolutely necessary for any of the purposes set out in the second
paragraph of that Article.
submitted, secondly, that the investigation following Moravia
Ramsahai's death had been deficient. More specifically, they argued
could not be considered “independent”, since essential
parts of it had been carried out by the Amsterdam/Amstelland police
force, the very force to which Officers Brons and Bultstra belonged;
after the first
door-to-door search for witnesses in the Huigenbos building itself,
no further efforts had been made to find civilian witnesses, and in
fact some had even been turned away;
Officers Brons and
Bultstra had not been questioned until several days after the fatal
shooting, during which time they had had the opportunity to discuss
the incident with others and with each other;
investigations which one would normally expect in a case such as the
present had not been carried out: thus, no attempt had been made to
establish the precise trajectory of the bullet (which the applicants
submitted would have been possible), the hands of Officers Brons and
Bultstra had not been tested for gunshot residue, no report of any
examination of Officer Brons's service weapon and ammunition or of
the spent cartridge was contained in the investigation file, and
there had been no reconstruction of the incident;
Van Riessen's refusal to co-operate with any further investigation
was evidence of subjective bias;
the State Criminal
Investigation Department could not be considered independent and
impartial, since at the time it reported to the local Chief Public
Prosecutor, who was also responsible for the local public
prosecution service and the local police;
Officers Brons and
Bultstra had been provided with a single lawyer, which was contrary
to normal practice in the Netherlands;
the decision not to
prosecute Officer Brons had been taken by an Amsterdam public
prosecutor who was specifically responsible for the police work
carried out at Flierbosdreef police station and was dependent on the
officers based there for assistance and information.
applicants complained under both Article 2 and Article 6 of the
Convention that the investigation had not been independent and
effective. They raised the following complaints about the procedure
followed by the Court of Appeal:
the hearing had not
been public, nor had the decision been pronounced in open court;
had been denied them, including an official report by the public
prosecutor, which however had been before the Acting Procurator
General at the Court of Appeal and the Court of Appeal itself;
Officers Brons and Bultstra to be examined in public, for access to
Officer Brons's service record (including any complaints against
him), and for a reconstruction of the incident involving Officers
Brons and Bultstra, had not been entertained;
the Court of Appeal
had undertaken no independent investigation of its own, but had
relied on information provided by the Amsterdam/Amstelland police
force and the State Criminal Investigation Department;
the hearing had been
held before a single judge, whereas the decision had apparently been
given by three;
as far as could be
established, no official record had been kept of the Court of
Appeal's hearing, which was contrary to the law.
Government denied that there had been any violation of Article 2.
A. The death of Moravia Ramsahai
1. Establishment of the facts
- In assessing evidence, the Court applies the standard
of proof “beyond reasonable doubt”. However, such proof
may follow from the coexistence of sufficiently strong, clear and
concordant inferences or of similar unrebutted presumptions of fact
(see, among other authorities, Salman v. Turkey [GC], no.
21986/93, § 100, ECHR 2000 VII, and Cyprus
v. Turkey [GC], no. 25781/94, §§ 112-113,
ECHR 2001 IV).
Chamber established the facts surrounding the death of Moravia
Ramsahai as follows (§§ 356-371 of the Chamber judgment):
“356. It is necessary for the Court to
establish the facts concerning the death of Moravia Ramsahai.
357. The Court is sensitive to the subsidiary
nature of its role and recognises that it must be cautious in taking
on the role of a first-instance tribunal of fact, where this is not
rendered unavoidable by the circumstances of a particular case.
Nonetheless, where allegations are made under Article 2 of the
Convention, the Court must apply a particularly thorough scrutiny
even if certain domestic proceedings and investigations have already
taken place (see Aktaş v. Turkey, no. 24351/94, §
271, 24 April 2003).
358. Without prejudice to its findings under
Article 2 in its procedural aspect, the Court would note that the
official investigation undertaken into the events at issue appears to
have been thorough and that its findings were recorded in
considerable detail. The investigation comprised interviews with the
police officers involved in the matter and with a large number of
civilian witnesses including some brought forward on behalf of the
applicants, as well as the gathering of forensic evidence. The Court
will base its own examination of the case on the factual information
which it has gleaned from the official documents submitted, as
paraphrased above, qualified as necessary by information from other
359. The evidence shows that before the fatal
shooting Moravia Ramsahai twice displayed threatening behaviour
involving the use of a pistol. The first such incident occurred in
the Burger King restaurant on the Leidseplein, when Moravia Ramsahai
pointed a pistol at Ms Najima Boujedaine. The second happened on the
Kwakoe festival ground, when he forced Mr Vinodkumar Hoeseni at
gunpoint to hand over his scooter.
360. Mr Hoeseni reported the theft of his
scooter to the first policemen he saw, Officers Dekker and Boonstra,
who were on surveillance duty and unarmed. Together the three of them
set off in pursuit. However, the scooter was going too fast for them
to catch up. The officers then reported the theft by radio to the
local police station, giving a description of the thief and the
scooter and the direction the thief had taken. The duty officer
immediately ordered all available police personnel to pursue the
361. Afterwards, Officers Dekker and Boonstra
stated that Mr Hoeseni had not told them until later that Moravia
Ramsahai had a gun; had they known, being unarmed themselves they
would never have gone after him and they would certainly have warned
their colleagues. Mr Hoeseni, however, maintained that he had in
fact mentioned the pistol but had been misheard. Whatever the
accuracy of Mr Hoeseni's statement, the Court accepts that Officers
Dekker and Boonstra did not hear him mention that Moravia Ramsahai
362. Of the police officers in the vicinity,
the first able to respond to the order were Officers Brons and
Bultstra who were patrolling the Bijlmermeer district together in a
marked police car. They spotted Moravia Ramsahai riding towards the
Huigenbos building and gave chase.
363. Officers Brons and Bultstra saw Moravia
Ramsahai ride the scooter into a doorway of the Huigenbos building.
Officer Brons, the driver, parked the car. Meanwhile, Officer
Bultstra got out and ran towards the doorway. He was holding a
portable two-way radio set.
364. Moravia Ramsahai's behaviour was defiant
and he resisted arrest. He tried to get away. Officer Bultstra tried
to grab hold of him. There was a brief struggle, from which Moravia
Ramsahai managed to break loose. At a distance of several metres from
Officer Bultstra, Moravia Ramsahai adopted a threatening posture and
drew his pistol.
365. The Court discounts the statements of
civilian witnesses who stated that Moravia Ramsahai was in fact
unarmed. It is apparent that these persons witnessed the events from
considerable distances and in failing light. Moreover, these
statements are inconsistent with the subsequent finding of the
pistol, with the evidence showing Moravia Ramsahai to have drawn a
pistol fitting the description of the one found against two other
persons before the fatal incident, and with the statement of Mr Van
den Heuvel, who witnessed part of the events from close by.
366. Seeing Moravia Ramsahai's pistol and
feeling threatened, Officer Bultstra dropped or threw away his
two-way radio, drew his service pistol and in a loud voice ordered
Moravia Ramsahai at least once to drop his gun. Moravia Ramsahai then
pointed his pistol towards the ground, but in a manner which Officer
Bultstra found threatening, and tried to walk away.
367. By this time Officer Brons had parked
and locked the car and had arrived to help Officer Bultstra. He saw
Moravia Ramsahai holding a pistol, which, despite being covered by
Officer Bultstra and in defiance of the order to drop it, he did not
368. The pistol which Moravia Ramsahai held
in his hand was cocked and loaded with five live rounds, one of which
was chambered, and was ready to fire.
369. Both Officer Brons and Officer Bultstra
saw Moravia Ramsahai turning and raising the hand holding the pistol.
Officer Brons saw Moravia Ramsahai point the pistol in his direction.
He therefore drew his service pistol – which he had not yet
done – and fired once.
370. Officer Brons did not shoot to kill; in
fact, he did not aim at any particular part of Moravia Ramsahai's
body. His concern was to end a threatening situation immediately.
371. The bullet fired by Officer Brons
pierced Moravia Ramsahai's brachiocephalic (innominate) artery, an
artery which branches off from the aortic arch and ultimately
provides half of the brain's blood supply, and a major vein in the
neck. Moravia Ramsahai lost consciousness in seconds and bled to
death in minutes.”
will appear below, the Court has concerns about the independence and
quality of the investigation into Moravia Ramsahai's death. In
particular, there is an apparent discrepancy between the statements
of Officers Brons and Bultstra themselves, who both stated that it
had been Officer Brons who had fired the fatal shot (see paragraph 15
above), and Officers Braam and Van Daal, the police officers in
charge of monitoring police radio traffic, who both stated that they
had heard Officer Bultstra report that he had fired and call for an
ambulance (see paragraphs 27 and 30 above). Moreover, the early
stages of the investigation were handled by colleagues of Officers
Brons and Bultstra on the Amsterdam/Amstelland police force.
the Chamber's establishment of the facts has not been seriously
contested: the Government have not commented on it, and the
applicants have been content merely to refer in general terms to
their factual statements to the Chamber without pointing to
inaccuracies in the Chamber's findings of fact or suggesting an
alternative version of events.
account of Moravia Ramsahai's behaviour given by Officers Brons and
Bultstra is consistent with the known facts of Moravia Ramsahai's
drawing a pistol in the Burger King restaurant on Leidseplein (see
the statement made by Ms Boujedaine, paragraphs 75-76 above) and his
using a pistol to threaten Mr De Getrouwe (see his statement,
paragraph 84 above) and to rob Mr Hoeseni of his scooter (see his
statements, paragraphs 31 and 158 above, and the statement made by Ms
Bhondoe, paragraph 34 above). It is also consistent with the
statements of the witness Mr Van den Heuvel (see paragraphs 37-38 and
this background the Court sees no reason to call into question the
accounts given by Officers Brons and Bultstra. It accepts therefore
that Officer Bultstra dropped his two-way radio to draw his service
pistol. It may well be that Officers Braam and Van Daal misheard and
that it was in fact Officer Brons who called for an ambulance. The
fact that until the afternoon of the day following the shooting the
investigation was in the hands of the Amsterdam/Amstelland police
force will be considered separately below.
the circumstances, and given the position taken by the parties as
regards the establishment of the facts by the Chamber, the Court will
consider the case in the light of those facts.
2. The Chamber judgment
Chamber found that Officers Brons and Bultstra had been entirely
unaware that Moravia Ramsahai was armed, and that they had thus had
no reason to believe that they would be called upon to effect
anything other than a routine arrest.
Chamber also found that Officer Bultstra had drawn his service weapon
only after Moravia Ramsahai had drawn his pistol, and that Officer
Brons had drawn his service weapon and fired only after Moravia
Ramsahai, defying unambiguous warnings to give up his weapon, had
begun to raise his pistol towards him.
thus established the facts, the Chamber was unable to find that
Officers Brons and Bultstra ought to have sought further information
or called for reinforcement. It went on to hold that the use of
lethal force had not exceeded what was “absolutely necessary”
for the purposes of effecting the arrest of Moravia Ramsahai and
protecting the lives of Officers Brons and Bultstra and that,
consequently, the shooting of Moravia Ramsahai by Officer Brons did
not constitute a violation of Article 2 of the Convention.
3. The parties' submissions
(a) The applicants
the applicants' submission, even assuming that the violence inflicted
on Moravia Ramsahai had been intended to effect his “lawful
arrest”, Officers Brons and Bultstra had acted without proper
planning. They had neglected to ask for relevant information, further
instructions or reinforcement, all of which might have minimised any
risk to life to the greatest extent possible.
(b) The Government
Government relied on the findings of the Amsterdam Court of Appeal.
That court had found that Moravia Ramsahai had threatened Officer
Brons with a lethal weapon – a cocked pistol with a round
chambered – and had thus himself created the situation in which
the use of force, even lethal force if need be, became no less than
an absolute necessity.
Government further stated that appropriate care had been taken to
ensure that any risk to life was minimised and that the police
officers concerned had not been negligent in their course of action.
It was inappropriate to discuss with the benefit of hindsight the
merits of alternative tactics.
4. The Court's assessment
Court reiterates that the exceptions delineated in paragraph 2 of
Article 2 of the Convention indicate that this provision extends to,
but is not concerned exclusively with, intentional killing. The text
of Article 2, read as a whole, demonstrates that paragraph 2 does not
primarily define instances where it is permitted to kill an
individual intentionally, but describes the situations where it is
permitted to “use force” which may result, as an
unintended outcome, in the deprivation of life. The use of force,
however, must be no more than “absolutely necessary” for
the achievement of one of the purposes set out in sub-paragraphs (a),
(b) or (c) (see Oğur v. Turkey [GC], no. 21594/93, §
78, ECHR 1999 III).
this respect the use of the term “absolutely necessary”
in Article 2 § 2 indicates that a stricter and more
compelling test of necessity must be employed than that normally
applicable when determining whether State action is “necessary
in a democratic society” under the second paragraph of Articles
8 to 11 of the Convention. In particular, the force used must be
strictly proportionate to the achievement of the aims set out in
sub-paragraphs 2 (a), (b) and (c) of Article 2 (ibid.).
The Court has already decided to accept the Chamber's assessment
of the facts surrounding the death of Moravia Ramsahai, which was not
seriously challenged (see paragraphs 80-83 above). Having done so,
the Court cannot find fault with the Chamber's finding that the fatal
shot fired by Officer Brons was “no more than absolutely
necessary” as that term is to be understood for purposes of
Article 2 of the Convention.
Court is therefore satisfied that the shooting of Moravia Ramsahai
did not violate Article 2 of the Convention.
B. The investigation following the shooting
1. The Chamber judgment
(a) Effectiveness of the investigation
Chamber did not find it established that the domestic authorities had
turned away or failed to seek out witnesses who might have
contributed accurate and relevant information to the investigation
file, as the applicants alleged.
Chamber agreed with the applicants that certain investigative
measures of which no report was contained in the investigation file –
namely, the determination of the precise trajectory of the fatal
bullet; the testing of the hands of the police officers for gunshot
residue; the examination of the weapon used, its ammunition and the
spent cartridge; and the reconstruction of the incident –
should normally be features of investigations into gunshot deaths.
However, in the present case there had never been any doubt about the
identity of the suspect and the circumstances of the incident could
be adequately established without those examinations; their omission
had therefore not impaired the effectiveness of the investigation as
Chamber agreed that statements could and should have been taken from
Officers Brons and Bultstra sooner, so that they could be checked
against each other and subsequently against the forensic evidence as
necessary. Even so, it was not possible to find that Officers Brons
and Bultstra had colluded with each other or with other police
officers to obstruct the proper course of the investigation.
conclusion, the Chamber found no violation of Article 2 as far as the
effectiveness of the investigation was concerned.
(b) Independence of the investigation
Chamber accepted that the State Criminal Investigation Department, a
nationwide service with its own chain of command and answerable to
the country's highest prosecuting authority, the Procurators General
collectively, had sufficient independence for the purposes of
Article 2 of the Convention.
found, however, that essential parts of the investigation had been
carried out by the same force, acting under its own chain of command,
to which Officers Brons and Bultstra belonged – the
Amsterdam/Amstelland police force: namely, the forensic examination
of the scene of the shooting, the door-to-door search for witnesses
and the initial questioning of witnesses, including police officers
who also belonged to the Amsterdam/Amstelland police force. It
further noted that other investigations had been undertaken by the
Amsterdam/Amstelland police force at the behest of the State Criminal
being so, and considering also that supervision even by an
independent body was not sufficient to ensure full independence of
the investigation, the Chamber held that there had been a violation
of Article 2 in its procedural aspect.
(c) Involvement of the applicants
Chamber observed that disclosure or publication of police reports and
investigative materials might involve sensitive issues with possible
prejudicial effects for private individuals or other investigations.
It could not therefore be regarded as an automatic requirement under
Article 2 that the surviving next of kin be kept abreast of the
investigations as they went along. Similarly, the investigating
authorities could not be required to indulge every wish of a
surviving relative as regards investigative measures. In any event,
the Chamber had found the investigation into the death of Moravia
Ramsahai to be sufficiently effective.
Chamber did not find it established that the applicants had been
denied access to certain documents entirely.
the Chamber held that the applicants had been granted access to the
information yielded by the investigation to a degree sufficient for
them to participate effectively in proceedings aimed at challenging
the decision not to prosecute Officer Brons.
(d) Procedure followed by the Court of Appeal
Chamber held that the proceedings before the Court of Appeal did not
have to include a public hearing. It agreed with the Government that
a person whom it was not appropriate to put on trial should be spared
the unpleasantness of being made a public spectacle.
fact of the Court of Appeal's decision not being given in public was
another matter. Where it was decided that a person invested with
public authority at whose hands a human being had died should not
face criminal proceedings, Article 2 required, in the Chamber's
opinion, that the decision be open to public scrutiny.
(e) The role of the public prosecutor
Chamber expressed concern about the appointment of the public
prosecutor connected to the same police station as Officers Brons and
Bultstra themselves to supervise the investigation into the shooting.
Even so, it found that the public prosecutor's measure of
independence, when considered together with the possibility for the
applicants to seek review by the Court of Appeal of the decision not
to prosecute, satisfied the requirements of Article 2.
2. The parties' submissions
(a) The applicants
applicants essentially restated the position which they had defended
before the Chamber.
the applicants' submission, a violation of the procedural
requirements of Article 2 was constituted by the Court of Appeal's
failure to consider statements made by persons other than Officers
Brons and Bultstra and Mr Van den Heuvel. Mr Van den Heuvel had not
even seen the actual shot fired. Evidence had not been taken from
other witnesses, in particular Ms Lieveld, Ms Rijssel, Mr Chitanie
and Mr Van Rij, in spite of the applicants' requests that they be
examined by the Court of Appeal, and their statements had been
investigative measures that were normally to be expected in a case
such as the present had been omitted, including testing for gunshot
residue on the police officers' hands and presumably elsewhere, and a
reconstruction of events and of the bullet's trajectory. Also missing
were the drawings or photographs made at the autopsy, showing the
entry and exit wounds left by the bullet.
major part of the investigation, including some investigative
measures which could not readily be repeated afterwards, had been
undertaken by police officers belonging not only to the same police
force as Officers Brons and Bultstra – the Amsterdam/Amstelland
force – but even to the same police station, Flierbosdreef in
Amsterdam, and therefore clearly belonging to the same chain of
command. This, in the applicants' submission, was all the more
regrettable in view of the fact that officers appearing at the scene
had turned away material witnesses, Ms Rijssel and Ms Lieveld, and
perhaps others whose names had not been recorded. It had been left to
the applicants and their counsel to find them again later.
regards the State Criminal Investigation Department, before the Grand
Chamber the applicants accepted that it was under the authority of
the highest prosecuting authorities and did not call into question
its independence vis-à-vis the Amsterdam/Amstelland
police force. However, the State Criminal Investigation Department's
investigation had not taken place under the responsibility of a
prosecuting authority unrelated to the Amsterdam/Amstelland police
force. It had taken place under the responsibility of Public
Prosecutor De Vries, whose position in relation to the
Amsterdam/Amstelland police force could hardly be regarded as
was true that the State Criminal Investigation Department had
interviewed Officers Brons and Bultstra. However, this had been done
long after the shooting and after Officers Brons and Bultstra had had
the opportunity to discuss the case with others – including
Police Commissioner Van Riessen. In addition, Officers Brons and
Bultstra had been allowed to resume their duties while the
investigation was still pending and while important information was
still being committed to paper by officers of their own police
long as the investigation was pending, the applicants had been denied
any involvement or access to the case file, despite requests made on
their behalf by counsel. This situation continued until after the
public prosecutor had decided that a prosecution should not be
brought. Moreover, it was only after the public prosecutor had
notified the applicants of this decision that she had agreed to see
proceedings before the Court of Appeal had not involved the
applicants sufficiently for their interests to be safeguarded.
Reasonable requests, including a request for copies of certain
documents from the case file and for certain investigative measures,
had been refused. Nor, in the applicants' submission, was it at all
clear why these proceedings could not have been public.
(b) The Government
Government maintained that Article 2 of the Convention did not
contain a free-standing obligation to conduct an effective and
independent investigation after a death had occurred at the hands of
State agents, in the sense that procedural standards should be
considered separately from the circumstances of such a death.
any case, the Chamber's finding that the shooting of Moravia Ramsahai
did not constitute a violation of Article 2 of the Convention, based
as it was on the findings of the police investigation, showed that
that investigation had not been flawed to the extent that it had
failed to meet the procedural standards required by that Article.
investigation following Moravia Ramsahai's death had been
conscientious and thorough. The local police had immediately secured
all evidence at the scene and collected all necessary information.
The Chamber's judgment, in finding a violation of Article 2 in that
investigative measures had been undertaken by the local police force,
had overlooked the crucial importance of securing evidence
immediately after the incident. If the local police were forced to
wait passively for the State Criminal Investigation Department to
arrive, important information could be lost: witnesses could leave
before their names could be taken down, and physical traces could
disappear owing to weather conditions or simply because of people
in most cases the local police could be present before the State
Criminal Investigation Department, it was in fact normal practice for
the local police to secure the available evidence and hand over the
investigation to the Department as soon as its officers arrived. The
latter would then take any necessary further measures.
State Criminal Investigation Department had admittedly made use of
investigation reports prepared by the local police force to which
Officer Brons himself belonged. However, the State Criminal
Investigation Department itself had undertaken extensive additional
investigations and had repeated the work of the local police to the
extent that it was necessary and worthwhile to do so.
was true that complaint proceedings under Article 12 of the Code of
Criminal Procedure were not public. The Government explained that
this was in order to protect individuals whom the prosecuting
authorities might not intend to prosecute – who very possibly
did not deserve to be prosecuted and might even have been falsely
accused – from being stigmatised in public. Given, in
particular, the presumption of innocence, it was reasonable that the
balance between the interests of the person seeking the prosecution
of another and the person whose prosecution was sought should come
down in favour of the latter.
applied all the more in cases involving public servants. A statutory
duty to make public the outcome of proceedings under Article 12
of the Code of Criminal Procedure in cases involving them might harm
their subsequent effectiveness.
publicity requirement was sufficiently met by the involvement of the
complainant in the proceedings and by the possibility for the
complainant to bring the issue to public notice as the applicants
themselves had done.
was also true that there had been neither a reconstruction of events
nor a ballistics report, but none had been needed. It was established
that the bullet which killed Moravia Ramsahai had been fired from
Officer Brons's service pistol; Officer Brons had never denied firing
the fatal shot. The absence of a reconstruction of events and of a
ballistics report had not prevented the Court of Appeal from finding
that Officer Brons had fired in self-defence.
had admittedly been a delay of two days after the incident before
Officers Brons and Bultstra were questioned. This reflected a
decision to interview them only once the forensic evidence and the
first witness statements had been obtained. If necessary, the
officers could then have been confronted with these and thus
questioned more effectively. In any event, there had been no reason
to regard Officers Brons and Bultstra as likely to evade questioning
or to abscond.
3. The Court's assessment
(a) Applicable principles
Court has stated the applicable principles as follows (see, as a
recent authority, Nachova and Others v. Bulgaria [GC], nos.
43577/98 and 43579/98, §§ 110-113, ECHR 2005 VII,
case-law references omitted):
“110. The obligation to protect the
right to life under Article 2 of the Convention, read in conjunction
with the State's general duty under Article 1 of the Convention
to 'secure to everyone within [its] jurisdiction the rights and
freedoms defined in [the] Convention', requires by implication that
there should be some form of effective official investigation when
individuals have been killed as a result of the use of force (...).
The essential purpose of such an investigation is to secure the
effective implementation of the domestic laws safeguarding the right
to life and, in those cases involving State agents or bodies, to
ensure their accountability for deaths occurring under their
112. For an investigation into alleged
unlawful killing by State agents to be effective, the persons
responsible for and carrying out the investigation must be
independent and impartial, in law and in practice (...).
113. The investigation must also be effective
in the sense that it is capable of leading to a determination of
whether the force used was or was not justified in the circumstances
and to the identification and punishment of those responsible (...).
The authorities must have taken the reasonable steps available to
them to secure the evidence concerning the incident, including inter
alia eye witness testimony and forensic evidence. The
investigation's conclusions must be based on thorough, objective and
impartial analysis of all relevant elements and must apply a standard
comparable to the 'no more than absolutely necessary' standard
required by Article 2 § 2 of the Convention. Any
deficiency in the investigation which undermines its capability of
establishing the circumstances of the case or the person responsible
is liable to fall foul of the required measure of effectiveness
also as follows (see, among many other authorities, Anguelova
v. Bulgaria, no. 38361/97, § 140, ECHR
“140. There must be a sufficient
element of public scrutiny of the investigation or its results to
secure accountability in practice as well as in theory, maintain
public confidence in the authorities' adherence to the rule of law
and prevent any appearance of collusion in or tolerance of unlawful
acts. The degree of public scrutiny required may well vary from case
to case. In all cases, however, the next of kin of the victim must be
involved in the procedure to the extent necessary to safeguard his or
her legitimate interests (...)”
Court would observe at this point that the obligation to carry out a
prompt and effective investigation when individuals have been killed
as a result of the use of force, and to bring, or enable, such
proceedings as may be appropriate to the case, is not dependent on
whether the said use of force itself is ultimately found to
constitute a violation of Article 2 of the Convention.
(b) Effectiveness of the investigation
Court finds it opportune to clarify the scope and content of its
examination of the effectiveness of the investigation.
order to be “effective” as this expression is to be
understood in the context of Article 2 of the Convention, an
investigation into a death that engages the responsibility of a
Contracting Party under that Article must firstly be adequate. That
is, it must be capable of leading to the identification and
punishment of those responsible. This is not an obligation of result,
but one of means. The authorities must have taken the reasonable
steps available to them to secure the evidence concerning the
incident. Any deficiency in the investigation which undermines its
ability to identify the perpetrator or perpetrators will risk falling
foul of this standard (cf. Tahsin Acar v. Turkey [GC],
no. 26307/95, § 223, ECHR 2004 III).
for the investigation to be “effective” in this sense it
may generally be regarded as necessary for the persons responsible
for it and carrying it out to be independent from those implicated in
the events. This means not only a lack of hierarchical or
institutional connection but also a practical independence (cf.
Tahsin Acar, cited above, § 222). What is at stake here is
nothing less than public confidence in the state's monopoly on the
use of force.
(i) Adequacy of the investigation
applicants correctly pointed out that several forensic examinations
which one would normally expect in a case such as the present had not
been carried out: thus, no attempt had been made to determine the
precise trajectory of the bullet (which the applicants submitted
would have been possible); the hands of Officers Brons and Bultstra
had not been tested for gunshot residue; no report of any examination
of Officer Brons's service weapon and ammunition or of the spent
cartridge was contained in the investigation file; the autopsy
report, as filed, did not comprise any drawings or photographs
showing the entry and exit wounds caused by the fatal bullet; and
there had been no reconstruction of the incident. Lastly, Officers
Brons and Bultstra had not been questioned until several days after
the fatal shooting, during which time they had had the opportunity to
discuss the incident with others and with each other.
is true that no attempt was made to establish the trajectory of the
bullet. It may be questioned whether this could have been determined
on the basis of the information available, since after hitting
Moravia Ramsahai, the bullet left no trace apart from a shattered
pane of glass (see paragraph 230 above).
the Court considers that the other failings pointed out by the
applicants impaired the adequacy of the investigation. On this point
its findings differ from those of the Chamber.
failure to test the hands of the two officers for gunshot residue and
to stage a reconstruction of the incident, as well as the apparent
absence of any examination of their weapons (see paragraph 236 above)
or ammunition and the lack of an adequate pictorial record of the
trauma caused to Moravia Ramsahai's body by the bullet (see paragraph
224 above), have not been explained.
is more, Officers Brons and Bultstra were not kept separated after
the incident and were not questioned until nearly three days later
(see paragraphs 94 and 107 above). Although, as already noted, there
is no evidence that they colluded with each other or with their
colleagues on the Amsterdam/Amstelland police force, the mere fact
that appropriate steps were not taken to reduce the risk of such
collusion amounts to a significant shortcoming in the adequacy of the
lacunae in the investigation are all the more regrettable in that
there were no witnesses who saw the fatal shot fired from close by,
except for Officers Brons and Bultstra themselves. The Court has
already drawn attention to the inconsistency between their statements
to the effect that the fatal shot was fired by Officer Brons and
those of Officers Braam and Van Daal, who both stated that they had
heard Officer Bultstra report that he had fired and call for an
ambulance (see paragraph 275 above).
has accordingly been a violation of Article 2 of the Convention in
that the investigation into the circumstances surrounding the death
of Moravia Ramsahai was inadequate.
(ii) Independence of the police investigation
independence of the State Criminal Investigation Department has not
been questioned before the Grand Chamber, which for its part sees no
reason to reach a different conclusion from that of the Chamber on
fifteen and a half hours passed from the time of Moravia Ramsahai's
death until the State Criminal Investigation Department became
involved in the investigation (see paragraph 89 above). No
explanation for this delay has been given.
has not been disputed that essential parts of the investigation were
carried out by the same force to which Officers Brons and Bultstra
belonged, the Amsterdam/Amstelland police force: namely, the forensic
examination of the scene of the shooting, the door-to-door search for
witnesses and the initial questioning of witnesses, including police
officers who also belonged to the Amsterdam/Amstelland police force
(see paragraphs 26-88 above).
the State Criminal Investigation Department took over, further
investigations were undertaken by the Amsterdam/Amstelland police
force, although at the State Criminal Investigation Department's
behest and under its responsibility (see paragraph 89 above).
Court has had occasion to find a violation of Article 2 in its
procedural aspect in that an investigation into a death in
circumstances engaging the responsibility of a public authority was
carried out by direct colleagues of the persons allegedly involved
(see Aktaş, cited above, § 301). Supervision by
another authority, however independent, has been found not to be a
sufficient safeguard for the independence of the investigation (see
Hugh Jordan, cited above, § 120, and McKerr,
cited above, § 128).
it is true that to oblige the local police to remain passive until
independent investigators arrive may result in the loss or
destruction of important evidence, the Government have not pointed to
any special circumstances that necessitated immediate action by the
local police force in the present case going beyond the securing of
the area in question; there is no need for the Court to consider this
question in the abstract.
is more, in another case that has come to the Court's notice and
which involves the same respondent Party, the State Criminal
Investigation Department appeared four and a half hours after a fatal
shooting had taken place (see Romijn v. the Netherlands
(dec.), no. 62006/00, 3 March 2005). In addition, as stated
by the Minister of Justice to Parliament, the State Criminal
Investigation Department are able to appear on the scene of events
within, on average, no more than an hour and a half. Seen in this
light, a delay of no less than fifteen and a half hours is
to the investigations of the Amsterdam/Amstelland police force after
the State Criminal Investigation Department took over, the Court
finds that the Department's subsequent involvement cannot suffice to
remove the taint of the force's lack of independence.
these grounds alone the Court therefore finds that there has been a
violation of Article 2 of the Convention in that the police
investigation was not sufficiently independent.
(iii) The role of the public prosecutor
police investigation was carried out under the supervision of an
Amsterdam public prosecutor who was specifically responsible for the
police work carried out at Flierbosdreef police station (see
paragraph 89 above). The same public prosecutor took the decision not
to prosecute Officer Brons, under authority delegated to her by the
Chief Public Prosecutor (see paragraph 237 above).
the Netherlands the Public Prosecution Service, although it does not
enjoy full judicial independence (see paragraph 250 above), has a
hierarchy of its own, separate from the police, and in operational
matters of criminal law and the administration of justice the police
are under its orders (see paragraphs 251 and 252 above).
prosecutors inevitably rely on the police for information and
support. This does not in itself suffice to conclude that they lack
sufficient independence vis-à-vis the police. Problems
may arise, however, if a public prosecutor has a close working
relationship with a particular police force.
the present case, it would have been better if the investigation had
been supervised by a public prosecutor unconnected to the
Amsterdam/Amstelland police force, especially given the involvement
of the Amsterdam/Amstelland police force in the investigation itself.
Even so, note must be taken of the degree of independence of the
Netherlands Public Prosecution Service and the fact that ultimate
responsibility for the investigation was borne by the Chief Public
Prosecutor. What is more, the possibility of review by an independent
tribunal existed and the applicants actually made use of it.
has not therefore been a violation of Article 2 on this point.
(c) Involvement of the applicants
disclosure or publication of police reports and investigative
materials may involve sensitive issues with possible prejudicial
effects for private individuals or other investigations. It cannot
therefore be regarded as an automatic requirement under Article 2
that a deceased victim's surviving next of kin be granted access to
the investigation as it goes along. The requisite access of the
public or the victim's relatives may be provided for in other stages
of the available procedures (see, among other authorities, McKerr,
cited above, § 129).
Court does not consider that Article 2 imposes a duty on the
investigating authorities to satisfy every request for a particular
investigative measure made by a relative in the course of the
Chamber found that the applicants had been granted access to the
information yielded by the investigation to a degree sufficient for
them to participate effectively in proceedings aimed at challenging
the decision not to prosecute Officer Brons. The Court notes that
neither party has offered any further argument on this subject; for
its part, it agrees with the Chamber and sees no reason to take any
different view of the matter.
has not therefore been a violation of Article 2 in this regard.
(d) Procedure followed by the Court of
before the Grand Chamber was focused on whether the proceedings and
the decision of the Court of Appeal should have been public.
Court will deal below with the question whether Article 6 applies to
proceedings under Article 12 of the Netherlands Code of Criminal
Procedure. For the purposes of Article 2, however, it agrees with the
Chamber that such proceedings are not to be equated with a
prosecution but are intended solely to allow a decision not to
prosecute to be challenged.
2 does not go so far as to require all proceedings following an
inquiry into a violent death to be public. As stated in, for example,
Anguelova (cited above, see paragraph 321), the test is
whether there is a sufficient element of public scrutiny in respect
of the investigation or its results to secure accountability in
practice as well as in theory, maintain public confidence in the
authorities' adherence to the rule of law and prevent any appearance
of collusion in or tolerance of unlawful acts. It must be accepted in
this connection that the degree of public scrutiny required may well
vary from case to case.
to the facts of the present case, the Court agrees with the Chamber
that the Court of Appeal's proceedings did not have to be open to the
public. Unlike the Chamber, however, the Court takes the view that
the Court of Appeal's decision was not required to be made public
either. The applicants were allowed full access to the investigation
file and were enabled to participate effectively in the Court of
Appeal's hearing; they were provided with a reasoned decision. There
was thus little likelihood that any authority involved in the case
might have concealed relevant information from the Court of Appeal or
the applicants. In addition, given that the applicants were not
prevented from making the decision public themselves, the Court takes
the view that the requirement of publicity was satisfied to an extent
sufficient to obviate the danger of any improper cover-up by the
has accordingly not been a violation of Article 2 as regards the
procedure followed by the Court of Appeal.
investigation into the death of Moravia Ramsahai has been shown to
fall short of the applicable standards, in that it was flawed to the
extent of impairing its adequacy (see paragraph 332 above) and in
that part of it was left to the police force to which Officers Brons
and Bultstra belonged (see paragraph 341 above). To that extent there
has been a failure to comply with the procedural obligation imposed
by Article 2 of the Convention.
has not, however, been a violation of Article 2 in that the
investigation was supervised by the public prosecutor to whose
authority Officers Brons and Bultstra and their colleagues were
subject (see paragraph 346 above), nor as regards the conditions
of the applicants' access to the investigation (see paragraph 350
above), nor in that the proceedings under Article 12 of the Code of
Criminal Procedure were not public, nor in that the Court of Appeal's
decision of 26 April 1999 was not made public (see
paragraph 355 above).
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
Article 6 of the Convention provides, in relevant part:
“1. In the determination of his civil
rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by law.
Judgment shall be pronounced publicly but the press and public may be
excluded from all or part of the trial in the interests of morals,
public order or national security in a democratic society, where the
interests of juveniles or the protection of the private life of the
parties so require, or to the extent strictly necessary in the
opinion of the court in special circumstances where publicity would
prejudice the interests of justice.
1. The Chamber judgment
Chamber found that proceedings under Article 12 of the Netherlands
Code of Criminal Procedure were not in any way decisive of civil
rights or obligations and did not affect a party's standing to bring
civil proceedings; Article 6 was not therefore applicable under its
civil head. Nor was Article 6 applicable under its criminal head, the
wording itself of that provision (“against him”)
indicating that in criminal cases its guarantees protected the person
facing the criminal charge.
2. The Court's decision
the applicants nor the Government submitted any argument on this
point to the Grand Chamber. For its part, the Court sees no reason to
come to a different decision from that of the Chamber; it accordingly
holds that Article 6 is not applicable.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
13 of the Convention provides as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
1. The Chamber judgment
Chamber, noting that the applicants' complaints under this provision
coincided with their complaints under Article 2 in relation to the
procedure followed, confined itself to its findings in respect of the
latter. It considered that there was no separate issue under Article
2. The Court's decision
the Chamber, the Court sees no separate issue under Article 13 of the
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
1. The Chamber judgment
Chamber awarded the applicants collectively 20,000 euros (EUR) in
respect of non-pecuniary damage.
2. The applicants' claims
they had before the Chamber, the applicants claimed EUR 30,000
in respect of non-pecuniary damage. They submitted no claim in
respect of pecuniary damage.
Government considered the applicants' claims excessive. They also
considered the Chamber's award too high, given that the violation
found had been procedural only.
3. The Court's decision
on an equitable basis, the Court awards the applicants jointly EUR
20,000 plus any tax that may be chargeable in respect of
B. Costs and expenses
1. The Chamber judgment
Chamber awarded the applicants EUR 8,000 less the sum of EUR 701 they
had received by way of legal aid from the Council of Europe, plus any
tax that might be chargeable.
2. The applicants' claims; arguments before the Grand
applicants claimed EUR 1,818.18 including value-added tax (VAT) in
respect of the domestic proceedings, that being the sum incurred up
to the decision of the Court of Appeal. In respect of the proceedings
before the Chamber, they claimed EUR 11,872.10 including VAT, less
the EUR 701 they had received by way of legal aid from the Council of
additionally claimed EUR 1,800 for lawyers' fees incurred in the
Chamber proceedings, plus EUR 900 for the costs of travel and
subsistence necessary for attendance at the Grand Chamber's hearing.
total amount claimed is thus EUR 15,682.28, from which the legal aid
received from the Council of Europe in respect of the Chamber and
Grand Chamber proceedings falls to be deducted.
Government did not comment on these amounts.
3. The Court's decision
Court endorses the Chamber's award as regards the costs and expenses
incurred in the proceedings up until the Chamber judgment.
60 of the Rules of Court provides, in relevant part:
2. The applicant must submit itemised
particulars of all claims, together with any relevant supporting
documents, within the time-limit fixed for the submission of the
applicant's observations on the merits unless the President of the
Chamber directs otherwise.
3. If the applicant fails to comply with the
requirements set out in the preceding paragraphs the Chamber may
reject the claims in whole or in part.
applicants' claims in respect of the Grand Chamber proceedings were
received after the time-limit laid down in Rule 60 § 2. No
reason has been given as to why that time-limit was not met. The
Court rejects those claims.
award can thus only be made in respect of the costs and expenses
incurred up until the proceedings before the Chamber. The Court
considers the Chamber's own award under this head reasonable, that
is, EUR 8,000 less the EUR 701 received by way of legal aid. It
should also be noted that the applicants have received additional
legal aid towards the costs of the present proceedings.
Court thus awards the applicants EUR 7,299 under the head of costs
and expenses, plus any tax that may be chargeable.
C. Default interest
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Holds unanimously that the shooting of Moravia
Ramsahai did not constitute a violation of Article 2 of the
- Holds by thirteen votes to four that there has
been a violation of Article 2 of the Convention in that the
investigation into the death of Moravia Ramsahai was inadequate;
- Holds by sixteen votes to one that there has
been a violation of Article 2 of the Convention in that the
investigation concerning the death of Moravia Ramsahai was
4. Holds by thirteen votes to four that there has been no
violation of Article 2 of the Convention as regards the position
of the public prosecutor supervising the police investigation into
the death of Moravia Ramsahai;
5. Holds unanimously that there has been no violation of
Article 2 of the Convention as regards the extent of the involvement
of the relatives of Moravia Ramsahai in the investigation;
6. Holds by fifteen votes to two that there has been no
violation of Article 2 of the Convention as regards the
procedure before the Court of Appeal;
- Holds by thirteen votes to four that Article 6
of the Convention is not applicable;
- Holds unanimously that there is no separate
issue under Article 13 of the Convention;
- Holds by sixteen votes to one
the respondent State is to pay the applicants jointly, within three
months, the following amounts:
20,000 (twenty thousand euros) in respect of non-pecuniary damage;
7,299 (seven thousand two hundred and ninety-nine euros) in respect
of costs and expenses;
tax that may be chargeable on the above amounts;
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicants' claims for just satisfaction.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 15 May 2007.
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following separate opinions are
annexed to this judgment:
partly dissenting opinion of Judges Rozakis, Sir Nicolas Bratza,
Lorenzen and Vajić;
partly dissenting opinion of Judges Costa, Sir Nicolas Bratza,
Lorenzen and Thomassen;
partly dissenting opinion of Judges Cabral Barreto, Botoucharova,
Mularoni and Jočienė;
partly dissenting opinion of Judges Jočienė and Popović;
dissenting opinion of Judge Thomassen.
JOINT PARTLY DISSENTING OPINION OF JUDGES ROZAKIS, Sir
Nicolas BRATZA, LORENZEN AND VAJIĆ
voted against the finding of the majority that Article 6 of the
Convention was not applicable in the present case.
the Chamber the applicants restated their procedural complaints under
Article 2 and argued that they gave rise additionally to a breach of
the Article 6 of the Convention. The Chamber rejected the complaint,
finding Article 6 to be inapplicable under both its civil and
criminal limbs. In the Grand Chamber neither party submitted any
argument under the Article. The majority of the Court followed the
Chamber in finding Article 6 not to be applicable. Since the
complaint does not appear to have been pursued in the Grand Chamber
and since it does not in any event add anything to the complaint
which has already been considered under Article 2, we would have
preferred to find merely that it was unnecessary to examine the case
separately under Article 6.
JOINT PARTLY DISSENTING OPINION OF JUDGES COSTA, Sir
Nicolas BRATZA, LORENZEN AND THOMASSEN
are unable to agree with the majority of the Grand Chamber that the
procedural requirements of Article 2 of the Convention were violated
on the grounds that the investigation into the death of the Moravia
Ramsahai was inadequate.
principles governing the procedural requirements of Article 2 are
well-established in the Court's case-law. The obligation to protect
the right to life, combined with the States' general duty under
Article 1 to secure the rights and freedoms defined in the
Convention, requires by implication that there should be some form of
effective official investigation when individuals have been killed as
a result of the use of force. For an investigation into a killing to
be “effective” the person responsible for carrying out
the investigation must be independent and impartial in law and in
practice. However, the investigation must also be “effective”
in the sense that it is capable of leading to a determination of
whether the force use was justified in the circumstances and to the
identification of those responsible for the death and to their
punishment if it was not. It is this latter aspect of the requirement
of “effectiveness” (which is characterised in the
judgment as one of the “adequacy” of the investigation)
which the majority of the Court find not to have been satisfied in
the present case.
emphasised in the judgment, the procedural obligation in Article 2 is
not one of result but of means. What is also clear from the Court's
case-law is that an investigation may satisfy the Convention
requirements of effectiveness or adequacy even if it has not been
shown that all possible investigative measures have been taken. A
lacuna or deficiency in an investigation will give rise to a breach
of the procedural obligation only if it is such as to undermine its
capability of establishing the facts surrounding the killing or the
liability of the persons responsible. Whether it does so must be
assessed in the light of the particular circumstances of each case.
the Grand Chamber the applicants relied on six alleged deficiencies
in the forensic and other investigations which were carried out into
the death: (i) the lack of any attempt to determine the precise
trajectory of the bullet; (ii) the failure to test the hands of
Officers Brons and Bultstra for gunshot residue; (iii) the lack of
evidence of any examination of Officer Brons's service weapon and
ammunition or of the spent cartridge; (iv) the absence from the
autopsy report of any drawings or photographs showing the entry and
exit wounds caused by the fatal bullet; (v) the lack of any
reconstruction of the incident; and (vi) the fact that the Officers
Brons and Bultstra were not questioned for several days after the
fatal shooting, during which time they had the opportunity to discuss
the incident between themselves and with others.
- Both the Chamber and the Grand Chamber, correctly in
our view, rejected the applicants' first criticism on the grounds
that it was questionable whether the trajectory of the bullet could
have been determined on the basis of the information available since,
after striking Moravia Ramsahai, the bullet left no trace apart from
a shattered pane of glass.
to the other alleged deficiencies, the findings of the Grand Chamber
differ from those of the Chamber, the majority concluding, without
more detailed reasoning, that the failings had not been explained
(paragraph 329) and that they “impaired the adequacy of the
investigation” (paragraph 328).
we can agree that forensic examinations of the kind indicated in (ii)
and (iii) above are not only in general of value but will often be an
indispensable feature of an effective investigation into gunshot
deaths, we share the view of the Chamber that, in the particular
circumstances of the present case, the lack of any such examinations
did not undermine the adequacy of the investigation into the death.
Despite the apparent inconsistency between the statements of the two
officers directly concerned and those of Officers Braam and Van Daal
to which reference is made in paragraph 231 of the judgment, it was
clearly established by the investigation, and has not been disputed,
that one round only was fired during the incident which resulted in
the death, that it was fired by Officer Brons and that his service
weapon, still loaded with seven out of the total of eight rounds,
together with one spent cartridge was handed over to the Forensic
Laboratory in Rijswijk (see Chamber's judgment, paragraphs 234238,
263). In these circumstances, it is not clear to us what a forensic
examination of the hands of the two officers or of their weapons
could have revealed.
reconstruction of the scene of an incident resulting in death may
also prove an important element of an effective investigation,
particularly where there are or may have been several eye-witnesses
of an incident resulting in death, whose memory of the events may be
refreshed or clarified by a reconstruction. However, like the
Chamber, we do not find that in the particular circumstances of the
present case such a reconstruction was an indispensable part of the
investigation or that its omission rendered the investigation
lack of any adequate pictorial record of the trauma caused to Moravia
Ramsahai's body by the bullet does not appear to have been expressly
relied on by the applicants before the Chamber and is certainly not
reflected in the Chamber's judgment. The judgment of the Grand
Chamber records, in paragraph 224, that “no drawings or
photographs were appended to the autopsy report as contained in the
investigation file”. While this is true, it is not the case
that the investigation was devoid of photographic evidence. As noted
in the Chamber's judgment (paragraphs 255-280), a total of
twenty-nine photographs were taken at the scene of the incident,
including four photographs of the body of Moravia Ramsahai. Moreover,
a detailed description of the head wound sustained by him was
contained both in the provisional conclusion of the pathologist (see
paragraph 295 of the Chamber's judgment) and in the autopsy report
itself (see paragraphs 286-7 of the Grand Chamber's judgment).
While it might have been desirable that the photographs of the head
wound were appended to the report to confirm the findings of the
pathologist, we cannot find that the omission to do so in any way
undermined the effectiveness of the investigation.
omission to separate Officers Brons and Bulstra or to question them
until nearly three days after the incident is, in our view, more
problematic. While, as noted in the Chamber's judgment, there is no
evidence that there was any collusion between the officers themselves
or between the officers and other police officers, it was in our view
clearly important that steps should have been taken to prevent any
risk of collusion and that the statements of both officers should
have been promptly obtained by an authority independent of the
police. However, we see this deficiency as one related less to the
adequacy of the investigation as a whole than to the lack of
independence of the initial police investigation and to the failure
of the State Criminal Investigation Department to assume control over
the investigation at the earliest opportunity – a matter which
has led to the separate finding of a procedural violation of Article
examined in their totality the steps taken at the various stages of
the investigation, which are summarised in the judgment, we are
unable to share the view of the majority that the alleged
deficiencies, whether considered individually or cumulatively,
undermined the investigation as a whole, or rendered it inadequate.
JOINT PARTLY DISSENTING OPINION OF JUDGES CABRAL
BARRETO, BOTOUCHAROVA, MULARONI AND JOČIENĖ
regret we are unable to follow the majority as regards the position
of the public prosecutor supervising the police investigation into
the death of Moravia Ramsahai ( point 4 of the operative part).
observe that the police investigation was carried out under the
supervision of an Amsterdam public prosecutor who was responsible
precisely for the police work done at Flierbosdreef police station.
The same public prosecutor took the decision not to prosecute Officer
Brons under authority delegated to her by the Chief Public
agree with the majority that public prosecutors are inevitably
dependent on the police for information and support and that this
circumstance does not in itself suffice to conclude that they lack
sufficient independence vis-à-vis the police. Problems may
arise, however, if a public prosecutor has a close working
relationship with a particular police force (§ 344 of the
Court has underlined in previous cases the importance not only of
hierarchical and institutional independence but also of practical
independence (Mastromatteo v. Italy, GC, no. 37703/97, §
91, ECHR 2002-VIII, Paul and Audrey Edwards v. the United Kingdom,
no. 46477/99, § 70, ECHR 2002-II).
Court has found in the present case that the investigation lacked
independence in that important parts of it were carried out by direct
colleagues of the police officers implicated in the death of Moravia
Ramsahai (§§ 333 – 341 of the judgment). We consider
that the same conclusion must follow from the finding that the
investigation was supervised by the very public prosecutor to
whose authority the Flieborsdreef police station, to which Officers
Brons and Bulstra belonged, was subject in its day-to-day work.
conclude that there has accordingly also been a violation of Article
2 in this regard.
JOINT PARTLY DISSENTING OPINION OF JUDGES JOČIENĖ
regret that we are unable to follow the position of the majority that
there has not been a violation of Article 2 of the Convention as
regards the procedure before the Court of Appeal.
applicants' complaint under Article 12 of the Code of Criminal
Procedure was heard in chambers by a “judge delegate”
(raadsheer-commissaris) on 1 March 1999. Mr Hamer made
extensive oral submissions on the applicants' behalf. These included
a request for an adjournment in order to add the official report of
Public Prosecutor De Vries and Officer Brons's service record
(including, especially, some complaints recorded against him) to the
26 April 1999 the Court of Appeal dismissed the applicants' complaint
against the Public Prosecutor's decision not to prosecute. This
decision was not made public.
has been mentioned above, the Court of Appeal's hearing was not
public. We agree with the Grand Chamber's ruling (see § 353)
that Article 2 does not go so far as to require all proceedings
following an inquiry into a violent death to be public. When
examining this point, we can follow the Chamber's position as
expressed in its judgment of 10 November 2005 (§ 421) and
also the Grand Chamber's position (see § 354) that the Court of
Appeal's proceedings did not have to be open to the public.
when analyzing this aspect, we still share the doubts of the
applicants mentioned in the judgment of the Grand Chamber (§
310) that “...the proceedings before the Court of Appeal had
not involved the applicants sufficiently for their interests to be
safeguarded [...] Nor, in the applicants' submission, was it at all
clear why these proceedings could not have been public...”.
Nevertheless, we can agree with the Chamber (see § 421 of
the judgment) that a person whom it is not appropriate to put on
trial should also be spared the unpleasantness of being made a public
the lack of publicity of the Court of Appeal's decision is another
matter. To find a violation as regards the procedure before the Court
of Appeal is the most important aspect for us. We totally agree with
the Chamber's position in its judgment of 10 November 2005 (§
422) that “...where it is decided that a person vested with
public authority at whose hands a human being has died should not
face criminal proceedings,
Article 2 requires the decision to be
open to public scrutiny (see Finucane v. the United Kingdom,
no. 29178/95, § 79, ECHR 2003 VIII)”.
- For the same reasons, there must be a sufficient
element of public scrutiny of the investigation or its results to
secure accountability in practice as well as in theory. The degree of
public scrutiny required may well vary
from case to case. In all cases, however, the next-of-kin of the
victim must be involved in the procedure to the extent necessary to
safeguard his or her legitimate interests (see Güleç
v. Turkey, judgment of 27 July 1998, Reports of Judgments and
Decisions 1998 IV, § 82; and McKerr
v. the United Kingdom, no. 28883/95, § 148,
ECHR 2001 III, etc.).
to the facts of the present case, we cannot agree with the position
of the Grand Chamber (see § 354 of the judgment) that “...the
Court takes the view that the Court of Appeal's decision was not
required to be made public either. [...] In addition, given that the
applicants were not prevented from making the decision public
themselves, the Court takes the view that the requirement of
publicity was satisfied to an extent sufficient to obviate the danger
of any improper cover-up by the Netherlands authorities...”.
still think that a prompt and public decision given by the
authorities in investigating a use of lethal force is essential in
maintaining public confidence in their adherence to the rule of law
and in preventing any appearance of collusion in or tolerance of
unlawful acts (see, for example, Hugh Jordan v. the United
Kingdom, no. 24746/94, §§ 108 and 136-40, ECHR
2001 III). And in our opinion, an obligation to make the
decision public cannot be placed on the applicants. In such a
sensitive case only a public decision could enable the applicants to
protect their legitimate interests properly, if necessary by mounting
legal challenges to the decision, and only a public decision could
exclude any negative allusion concerning the actions taken by the
authorities when examining a matter of such crucial importance. We
also share the position of the applicants expressed in the Grand
Chamber's judgment (see § 309) that the family had been denied
any involvement in the investigation or access to the case file,
which impaired their ability to protect their interests properly.
in our opinion, there has accordingly been a violation of Article 2
as regards the procedure followed by the Court of Appeal and
especially the fact that the decision of the Appeal Court was not
PARTLY DISSENTING OPINION OF JUDGE THOMASSEN
voted with the majority of the Grand Chamber on all aspects of the
case, except for the finding that there had been a violation of the
procedural limb of Article 2 of the Convention.
the extent that this finding is based on the inadequacy of the
investigation, I disagree with the majority for the reasons set out
in the joint partly dissenting opinion of judges Costa, Bratza,
Lorenzen and myself.
I also disagree with the majority's conclusion that there had been a
violation of Article 2 because the investigation had not been carried
out with the requisite independence.
if I share the view that the State Criminal Investigation Department
should have taken control of the investigation sooner and the two
police officers should have been separated and questioned at an
earlier stage, in my opinion the question whether these deficiencies
gave rise to a breach of the procedural obligations under Article 2
should be assessed in the light of the particular circumstances of
the Chamber rightly noted, there was no evidence of any collusion
between the officers themselves. Furthermore, as soon as the State
Criminal Investigation Department took over, several investigative
acts which had been performed by the Amstelland police force were
reviewed and a further, thorough investigation carried out. This
investigation enabled the Court of Appeal, an independent tribunal,
to establish the facts of the case and to conclude that Officer Brons
had acted in self-defence. It equally allowed the Grand Chamber to
rule unanimously that Article 2 had not been violated under its
other words, in the particular circumstances of this case the
deficiencies at issue did not have any bearing on the effectiveness
of the investigation or on the Court's conclusion that no substantive
violation of Article 2 had occurred. Having regard to all the steps
taken at the various stages of the investigation, the effectiveness
of the investigation as a whole was not undermined. In my view there
has not, therefore, been a violation of Article 2.