Case of Nika v. Albania (Application no. 1049/17)

A selection of key paragraphs can be found below the judgment.

167. The police and the National Guard appear to have formulated plans to protect the Prime Minister’s Office from any possible acts of violence during the protest. However, on the day in question it appears that only very scant instructions were given in connection with the possibility of using lethal force– namely, that a group composed of six officers would be on standby, ready to open fire in the event of a breach of the respective cordons formed by the Second Unit and the Special Unit (see paragraph 8 above). There is no indication that precise and clear instructions were provided as to specific crowd-control measures or that there was adequate prior coordination in respect of those two factors between the National Guard and the police.

168. As to the availability of non-lethal crowd-control measures to be used against violent protesters, there was only a certain quantity of tear gas and one water cannon at the officers’ disposal. This was clearly insufficient to ensure that a crowd could be dispersed without recourse to potentially lethal measures, as the crowd was not dispersed and continued to mount an attack characterised by a certain degree of violence. The use of tear gas apparently incapacitated the regular police cordon by the security perimeter of the Prime Minister’s Office, because the regular police had not been issued sufficient chemical protective equipment (in the form of teargas masks), and some of them were also injured during the confrontation with the protestors. As a result, some of the police units retreated to the back of the building and did not return to their primary crowd-control positions. That left the armed National Guard units to handle all crowd control measures on their own – in immediate proximity to a violent group.

169. It also appears that no clear and precise instruction was provided as to who would give order to use lethal force (that is, live bullets) and who would make the assessment as to whether the use of firearms was absolutely necessary. In that connection the Court notes that the officers alleged that they had acted on their own motion, without having received any order to shoot; if true, that in itself indicates the chaotic way in which firearms were actually used by the National Guard officers. The absence of a clear chain of command would have been a factor that by its very nature would have increased the risk of some police officers shooting erratically (compare Makaratzis, cited above, § 68). The possibility that no appropriate orders were given by the commanders on the ground in such a volatile situation, as asserted by the officers during the national proceedings, also raises questions about the adequacy of the planning and the direct handling of the 21 January operations – including in respect of the use of potentially deadly force.

170. The Court also notes that the oral warning given prior to the use of firearms did not explicitly mention that the officers would shoot, but only that “action” would be taken “in accordance with the law” (see paragraph 15 above). Such a warning was vague and imprecise and could not be considered to have constituted an adequate warning prior to the use of potentially lethal weapons.

171. In view of the above-presented assessment, the Court concludes that the use of lethal force by National Guard officers, which resulted in the death of the applicants’ close relative A.N., was not in compliance with the strict requirements of Article 2 of the Convention. The Court has found deficiencies in the legal framework governing the use of potentially lethal weapons in connection with crowd-control operations in general, serious defects in the planning and control of the event under examination, and a failure to demonstrate that the use of deadly force by the National Guard officers that resulted in the death of the applicant’s family member was absolutely necessary, given the circumstances. Indeed, the respondent Government has accepted that such a use of force was disproportionate. There has accordingly been a violation of the substantive aspect of Article 2 of the Convention.