Armani Da Silva v. the United Kingdom (Application No. 5878/08)

A selection of key paragraph(s) can be found below the document.

245. The Government have argued that the reasonableness of a belief in the necessity of lethal force should be determined subjectively. Although the applicant has accepted this, the third party intervener has submitted that an honest belief should be assessed against an objective standard of reasonableness. It is, however, apparent both from the application of the stated test to the particular facts in McCann and Others itself and from the Court’s post‑McCann and Others case-law that the existence of “good reasons” should be determined subjectively. In a number of cases the Court has expressly stated that as it is detached from the events at issue, it cannot substitute its own assessment of the situation for that of an officer who was required to react in the heat of the moment to avert an honestly perceived danger to his life or the lives of others; rather, it must consider the events from the viewpoint of the person(s) acting in self-defence at the time of those events (see, for example, Bubbins, cited above, § 139 and Giuliani and Gaggio, cited above, §§ 179 and 188). Consequently, in those Article 2 cases in which the Court specifically addressed the question of whether a belief was perceived, for good reasons, to be valid at the time, it did not adopt the standpoint of a detached observer; instead, it attempted to put itself into the position of the person who used lethal force, both in determining whether that person had the requisite belief and in assessing the necessity of the degree of force used (see, for example, Makaratzis v. Greece [GC], no. 50385/99, §§ 65-66, ECHR 2004‑XI; Oláh v. Hungary (dec.), 56558/00, 14 September 2004 and Giuliani and Gaggio, cited above, § 189 ).

246. Moreover, in applying this test the Court has not treated reasonableness as a separate requirement but rather as a relevant factor in determining whether a belief was honestly and genuinely held. In McCann and Others the Court identified the danger of imposing an unrealistic burden on law‑enforcement personnel in the execution of their duty. It therefore found no violation of Article 2 because the soldiers “honestly believed, in the light of the information that they had been given, as set out above, that it was necessary to shoot the suspects in order to prevent them from detonating a bomb and causing serious loss of life” (McCann and Others, cited above, § 200). A similar approach – that is, one focusing primarily on the honesty of the belief – can be seen in many other cases, including Andronicou and Constantinou, cited above, § 192; Bubbins, cited above, § 140; Golubeva v. Russia, no. 1062/03, § 102, 17 December 2009; Wasilewska and Kałucka v. Poland, nos. 28975/04 and 33406/04, § 52, 23 February 2010; and Giuliani and Gaggio, cited above, § 189.

247. In this regard, it is particularly significant that the Court has never found that a person purporting to act in self-defence honestly believed that the use of force was necessary but proceeded to find a violation of Article 2 on the ground that the belief was not perceived, for good reasons, to be valid at the time. Rather, in cases of alleged self-defence it has only found a violation of Article 2 where it refused to accept that a belief was honest (see, for example, Akhmadov and Others v. Russia, no. 21586/02, § 101, 14 November 2008 and Suleymanova v. Russia, no. 9191/06, § 85, 12 May 2010) or where the degree of force used was wholly disproportionate (see, for example, Gül, cited above, §§ 82-83).