FIRST SECTION
CASE OF FOUNTAS v. GREECE
(Application no. 50283/13)
 
 
 
 
JUDGMENT
 
STRASBOURG
3 October 2019
 
FINAL
 
03/01/2020
 
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Fountas v. Greece,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Ksenija Turković, President,
 Linos-Alexandre Sicilianos,
 Aleš Pejchal,
 Armen Harutyunyan,
 Pere Pastor Vilanova,
 Tim Eicke,
 Jovan Ilievski, judges,
and Abel Campos, Section Registrar,
Having deliberated in private on 10 September 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 50283/13) against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Greek national, Mr Georgios Fountas (“the applicant”), on 1 August 2013. 2. The applicant was represented by Mr S. Kalamitsis, a lawyer practising in Athens. The Greek Government (“the Government”) were represented by their Agent’s delegates, Mr K. Georgiadis and Ms A. Magrippi, Senior Advisor and Legal Representative A, respectively, at the State Legal Council. 3. The applicant alleged that the investigation conducted into his son’s death, which had been caused by a bullet fired by a policeman, had been ineffective. 4. On 5 September 2017 notice of the application was given to the Government. THE FACTS
THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1934 and lives in Athens. The circumstances surrounding the death of the applicant’s son
6. The applicant’s son, Lambros Fountas, was born in 1975 and worked as a biologist in a laboratory. 7. The parties differ as to the description of the facts: in particular, the Government cites the sequence of events as described by officer Th.K. and accepted by the public prosecutor at the Court of Appeal who issued the final order closing the investigation after the completion of the preliminary inquiry (προκαταρκτική εξέταση); the applicant contests the description cited below and contends that this version of the sequence of events is based solely on the officers’ testimony. 8. On the evening of 9 March 2010 police officers Th.K. and A.X. were ordered to patrol the neighbourhoods of Palaio Faliro, Nea Smyrni, Agios Dimitrios and Neos Kosmos from 9:00 p.m. until 05:30 a.m. the next day. Officer Th.K. was the driver and officer A.X. was the passenger. 9. At around 04:35 a.m., at the crossroads of Kefallinias Street and Kountouriotou Street, they spotted a red Seat Ibiza car parked in Kountouriotou Street with two people inside and decided to perform a check. According to Th.K., he blocked Kountouriotou Street with his car. As he and his colleague were taking up their positions, a person came out of the passenger seat of the Seat Ibiza, whom Th.K. perceived from the corner of his eye. At the same time, he heard A.X. shouting that the person exiting the car was carrying a gun. He heard gunshots coming from the place where the Seat Ibiza was parked and then a gunshot coming from the direction of his colleague, whom he saw with his gun pointed towards the sky. He then saw a person running away in the opposite direction and heard a fresh gunshot fired from that direction. After Th.K. had fired two shots, he heard a fresh gunshot and saw dust rising from the upper side of the rear windscreen of the police car, indicating that the bullet had hit that part of the car. He fired another shot and then he sought better cover next to his colleague. They both moved behind a “piloti” (pilotis are supports that raise a building from the ground, creating an open ground-floor level) of a nearby building and called for back-up. The above-mentioned sequence of events is in accordance with Th.K.’s testimony of 2 October 2012. In his earlier testimony dated 10 March 2010, officer Th.K. had cited the events in a similar way, except for the fact that he mentioned he had fired four shots and that testimony had been repeated in order no. A5/2012 of the public prosecutor at the Court of First Instance. In his testimony dated 10 March 2010, officer A.X.’s account of the incident was similar, except that according to him, after he heard gunshots coming from the direction of the Seat Ibiza, Th.K. returned fire several times and then shot a bullet into the air. 10. When back-up arrived, it was found that one of the people who had been in the Seat Ibiza had escaped on foot; the other was found dead on the pavement of Kountouriotou Street. The person lying dead was identified as Lambros Fountas, the applicant’s son. He was wearing a black jacket, hat and gloves, as well as a communications device on his ear. A revolver and a hand grenade were found next to him. A forensic examination later found gunshot residue on his gloves. 11. The above version of facts, as given by officer Th.K. and accepted by the Athens public prosecution office, was contested by the applicant, who argued that not all avenues of investigation had been followed. He referred, inter alia, to the press release issued by the Hellenic Police on the day on which the incident took place. In that press release, the incident was stated to have taken place in front of 33 Kountouriotou Street rather than 48 Kountouriotou Street, the hand grenade was stated to have been found in a backpack that Lambros Fountas was carrying and not next to him, and the communication device was stated to have been found in his jacket and not on his ear. The criminal investigationThe preliminary investigation under Article 243 of the Code of Criminal Procedure

12. Pursuant to Article 243 of the Code of Criminal Procedure, a preliminary investigation (προανάκριση) was undertaken by the Police Directorate for Countering Special Violent Crimes. From 10 March until 11 April 2010 thirty-two witness statements were taken and evidence was collected as part of that preliminary investigation. The witnesses included the two officers involved in the incident, residents of the neighbourhood, and the girlfriend and certain relatives, neighbours and acquaintances of the deceased. 13. Among those who gave testimony was Ms E.M., the owner of the Seat Ibiza, who stated that she had parked it on the corner of Kountouriotou and Kefallinias Streets and had volunteered her testimony after she had seen the incident covered on the news the next day. She also realised that her car had been involved when she discovered two bullet holes – one next to the rear windscreen and one in the rear windscreen. On 26 March 2010 the applicant and his family were also called upon to testify. According to the applicant, the person in charge of the preliminary inquiry informed him that his son had left his flat and had later been found at the scene. The applicant perceived that statement as constituting proof that his son had been under surveillance when the incident had taken place; otherwise the police force would not have been aware of his son’s movements before the incident. 14. On 18 March 2010 a report on the collection of Lambros Fountas’s clothes from the morgue and their delivery to the General Police Directorate was drawn up. The report listed all the applicant’s clothes, such as underwear and pants, together with his shoes. No gloves or hat were mentioned. 15. In addition, a ballistics examination and an autopsy were conducted. (a)   The ballistics examination
16. On 10 March 2010, from 7.30 a.m. until 12.40 p.m., a ballistics investigation was conducted at the crime scene. The evidence collected consisted of the following: (a) a USP service pistol belonging to A.X., whose magazine (which had a total capacity of fifteen rounds) contained twelve rounds, (b) a Beretta MOD 92 FS pistol belonging to Th.K., whose magazine (which had a total capacity of fifteen cartridges) contained twelve cartridges, (c) a Zastava pistol containing four cartridges and two shells, which was found next to the body of Lambros Fountas; (d) five shells; (e) four full-metal-jacket (FJM) bullets; (f) one metal bullet fragment; and (g) one lead bullet fragment that was removed from the body of Lambros Fountas during autopsy. 17. From an examination of the above-mentioned evidence it appeared that the two shells found in the Zastava pistol had been fired from that same gun. Furthermore, one of the five shells collected had been fired from the USP pistol belonging to A.X., three had been fired from the Beretta pistol owned by Th.K. and one had been fired from a Glock pistol. Of the four bullets found, two had been fired from the Zastava pistol and two had been fired from the Beretta pistol. The metal bullet fragment had been fired by the Beretta pistol. The lead bullet fragment that had been removed from Lambros Fountas’ body had come from the lead core of an FJM bullet that had fragmented because it had struck a hard surface with great force. 18. As to the location of the bullets, one of the two that had been fired from the Zastava pistol was found in a store located at the junction of Kefallinias and Kountouriotou Streets and the other in Kountouriotou Street. Taking into account the distortion of the bullet and the damage sustained by the police car, it was estimated that the police car had been damaged by the second bullet and that the person who had fired those two bullets had been on the pavement nearby 48 Kountouriotou Street. Of the three bullets that had been fired by the Beretta pistol owned by officer Th.K., one was found on the balcony of the first floor of the block of flats at 48 Kountouriotou Street and one was found by the entrance to the same block of flats; the metal fragment that formed part of the external case of the third bullet was found at 52 Kountouriotou Street. Lastly, the Seat Ibiza had a hole in the right rear pillar (as seen from the driver’s seat) and another hole at the rear windscreen. The form, location and general features of the holes led to the conclusion that they had been caused by a single bullet fired from a gun outside the car; the bullet had been fired at the car from its right side towards its left side and had had a slightly downward trajectory. After estimating that the person firing the shot had been located on the right side of the car, the investigators did not find the bullet in question, despite searching the area. (b)   The autopsy
19. H.M., a coroner with the Forensic Medical Service of Athens, was called in the early hours of 10 March 2010 (as the coroner on duty) to go to the site of the incident. On arrival, he saw the body of a man, which had not been moved, lying face down the pavement. When he turned him over, an intercommunications system appeared in the left pocket of his jacket. During the autopsy performed on the same day at the morgue of the Forensic Medical Service of Athens, a gun wound was found on the lateral and posterior areas of the chest; the bullet had been fired from behind and from the left side. The bullet was wedged in the sternum and no exit wound was found. It had punctured the lung and the starting point of the aorta, causing internal bleeding. The injury had been fatal and immediate. The coroner issued the death certificate on the same day that the incident took place, reporting that he had performed an autopsy on the body of a man who had been identified as Lambros Fountas. In the autopsy report, dated 5 July 2010, it was noted that the autopsy had been conducted on 10 March 2010 but the time at which the autopsy had been conducted was not specified. 20. According to the applicant, he was informed of his son’s death only after the autopsy had been conducted – that is to say at 1 p.m. on 10 March 2010. When he tried to appoint an expert to attend the autopsy, he was informed that an autopsy had already been conducted on an unidentified body and was asked whether he would like it to be repeated. However, he considered that it would not have been possible or useful to repeat certain actions, so he made an appointment for the next day to be informed of the findings of the autopsy. According to the applicant’s allegations, he was informed at that meeting that his son had been shot from a distance of between three and four metres and that his death had been immediate, following the injury to his aorta. The investigation concerning the “Revolutionary Fight”
21. On 12 April 2010 the Police Directorate for Countering Special Violent Crimes (First Department for Responding to Internal Terrorism) (“the Internal Terrorism Police”) sent to the Athens public prosecution office a case file in respect of proceedings against six people suspected of having committed terrorist acts and other offences. Those people allegedly belonged to a terrorist organisation called Revolutionary Fight (Επαναστατικός Αγώνας). In the case file the incident culminating in the death of Lambros Fountas, who had allegedly been a member of that organisation, is described, with some differences as compared with the version mentioned in the orders of the Athens public prosecution office (see paragraphs 7 and 11). In particular, the Seat Ibiza was reported as having been parked in Kefallinias Street and not in Kountouriotou Street and the hand grenade was described as having been found in a little bag inside the jacket that the deceased was wearing. In the case file, there are also documents describing the evidence collected from the applicant’s house and from the houses of other relatives of the deceased, and the evidence collected following the lifting of the secrecy in respect of communications data of the deceased. The case file was given the number AF-10/541. Under decision no. 5/2010 of the plenary composition of the Athens Council of Appeal Judges, a special investigator conducted a main investigation against those six people. The applicant’s criminal complaint
22. On 3 June 2010 the applicant and G.A. (the uncle of the deceased and the brother of the applicant’s wife) lodged a criminal complaint against the person or persons responsible for the death of Lambros Fountas and lodged a request to be allowed to join the proceedings as civil parties. On the same date, criminal case file no. ABM A2010/2820 was created and assigned to a public prosecutor for processing. On 30 July 2010 they lodged a protest with the public prosecutor at the Court of Cassation regarding the delay in the initiation of an investigation following the lodging of their criminal complaint. On 6 October 2010 the case file was transmitted to an Athens magistrate in order for a preliminary inquiry to be conducted. After that inquiry was completed it was returned to the Athens public prosecution office, and on 2 March 2011 it was assigned to a public prosecutor. On 14 June 2011 the case file was returned to the Athens magistrate in order for a further preliminary inquiry to be conducted, after the completion of which it was assigned on 18 July 2011 to a public prosecutor. In the meantime, on 13 December 2010 the applicant sent a written report to the public prosecutors at the Court of First Instance, the Court of Appeal and the Court of Cassation complaining of the delay in the initiation of an investigation after he had lodged his criminal complaint; in particular, he protested about the fact that no investigative measures seemed to have been undertaken and that he still did not have access to the documents relating to his son’s death, which were held in the investigation file concerning the “Revolutionary Fight” organisation and which he had been requesting since 4 October 2010 (see paragraph 38 below). 23. In the course of the preliminary inquiry conducted by the Athens magistrate, on 12 January 2011 the applicant and G.L., as the people who had lodged the criminal complaint, were examined as witnesses. In addition, on 24, 25 and 26 January 2011 eight further witnesses, who had been indicated by the applicant, testified as witnesses. 24. On 14 January 2011 the applicant submitted a memorandum asserting that, even though it was not explicitly mentioned in the Code of Criminal Procedure, a civil party should have access to all documents pertaining to a preliminary inquiry in order to be able to exercise his rights – in particular, his right to lodge an appeal under Article 245 § 4 of the Code of Criminal Procedure in the event that a criminal complaint lodged by him was rejected. In this regard, he listed a series of investigative actions and asked to be informed of whether or not they had been conducted; he also listed a series of documents to which he requested access; specifically, he asked, inter alia, to be informed of whether a reconstruction of the incident had taken place and why an autopsy had been conducted on a body described as “unidentified” in view of the fact that his son’s personal data had already been known to the police authorities, who could have easily identified him. He also asked to be given copies of all the relevant documents – including the autopsy report, all photographs of the site of the incident, the results of the ballistics examination, the testimony of all the people involved, the documents relating to the sworn administrative inquiry (ένορκη διοικητική εξέταση), all relevant photographs and a copy of the report detailing what had been seized from his son’s flat. He also asked to be told why the emergency services had not been called to the crime scene and how his son had been declared dead given the absence of the emergency services. 25. On 27 January 2012, following the preliminary inquiry and the sworn administrative inquiry, a prosecutor from the Athens public prosecution office issued order no. A5/2012, pursuant to Article 47 of the Code of Criminal Procedure, rejecting the applicant’s and G.A.’s criminal complaint. No specific reference was made to any of the applicant’s comments and requests in the memorandum. In this order, the public prosecutor, after citing the sequence of events and the testimony of three people in particular – namely, the owner of the Seat Ibiza, the coroner (H.B.), and a resident of the neighbourhood, concluded that the police officers had been in a situation necessitating lawful means of self-defence and that therefore, the use of their guns had been necessary and lawful. As regards the gunshot that had caused Lambros Fountas’s death, the public prosecutor noted the following:
“In the present case, from the preliminary inquiry but also from the sworn administrative inquiry that was conducted ... – specifically, from the witness testimony, in conjunction with all the documents in the case file – the following was proved:
... The officers replied to the gunshots, officer Th.K by shooting once into the air and three times towards the unknown perpetrators, ... and officer A.X. by shooting once into the air ... From what has been described in detail, it follows that when officers Th.K. and A.X. approached to check the suspects inside the Seat Ibiza ... they received [not only] two gunshots from Lambros Fountas, who exited the passenger seat, ... [but also] gunshots from the unknown perpetrator in the driver’s seat, given that a Glock shell was found at the scene. Consequently, during the above-mentioned surprise attack involving gunshots fired against them, it is obvious that the above-mentioned officers were acting in defence and that the use of their guns was therefore necessary and lawful in this case in order to defend themselves. Moreover, the combined review of the evidence shows that the bullet (fragment thereof) that hit the body of the deceased Lambros Fountas came from the BERETTA pistol of officer Th. K. As to whether the above-mentioned police officer observed or not the necessary measure of defence by choosing to fire a neutralisation gunshot against Lambros Fountas, instead of using another, milder method of defence in order to avert the attack, and more specifically instead of firing a warning or immobilisation gunshot, the following must be said: if one takes into account the above-mentioned conditions and circumstances under which the attack took place, and especially that it was manifested in a way that was linked to an immediate risk of death or grave injury of the above-mentioned officers, that is to say suddenly, at night and with consecutive shots fired from a small distance, then it is considered that the means selected, that is to say the neutralisation shot, was absolutely necessary in order to avert the attack. In addition, it was lawful, pursuant to the above-mentioned provision of Article 3 § 6  (a) of Law no. 3169/2003, according to which the neutralisation gunshot is allowed, if that is required, in order to avert an attack that is linked to an imminent risk of death or grave injury of a person. In the present case, the shots fired by officers Th.K. and A.X. are considered to have been justified in order to counter an attack against them, because any milder methods (such as a warning or an “immobilising” shot) would not have provided any guarantee that the attack would be countered securely, immediately and effectively so as to protect their own lives and physical safety; for that reason and on the basis of the above-mentioned considerations, the sworn administrative inquiry concluded that the above-mentioned officers had acted lawfully within the scope of their official duties and did not bear any disciplinary responsibility for the use of their service guns.”
26. On 7 March 2012 the applicant and G.A. lodged an appeal against order no. A5/2012. In his appeal, the applicant complained that he had not been granted access to the whole case file in order to be able to verify the accuracy of the conclusions drawn from the evidence collected and to effectively contest the public prosecutor’s conclusions. He nevertheless pointed out what he perceived to be inconsistencies in order no. A5/2012. Specifically, he drew attention to the differences between the description of the incident (i) included in case file AF-10/541 and in the press release issued by the Hellenic Police on the day of the incident (see paragraphs 21 and 11, respectively, above) and (ii) in the above-mentioned order. According to the applicant it was not clear where exactly the incident had taken place, where the Seat Ibiza had been parked and how many bullets had been shot by the policemen. Moreover, he mentioned what he considered to be omissions during the autopsy conducted on his son’s body – namely, the time and personal data had not been indicated in the autopsy report and there was no indication as to whether his son’s body had been identified prior to the start of the autopsy. Lastly, he contested the conclusions of the sworn administrative inquiry (as cited by the Athens public prosecution office), given that (i) he had not been granted access to them, and (ii) he considered that the sworn administrative inquiry had not been conducted impartially. 27. On 9 March 2012 the case file was submitted to the public prosecutor at the Court of Appeal, who issued order no. 208/2012 rejecting G.A.’s appeal as having been lodged out of time. As to the applicant’s appeal, it was considered admissible. The public prosecutor refrained from issuing a ruling and ordered a further preliminary inquiry, owing to the fact that officer Th.K. had not been summoned to be heard as a suspect at the stage of the initial preliminary inquiry but only as a witness. After Th.K. had given unsworn testimony on 2 October 2012, the case file (which consisted in total of four hundred and nineteen pages, ninety-three photographs and five DVDs containing video material) was returned on 16 November 2012 to the public prosecutor at the Court of Appeal. 28. On 31 December 2012 the applicant submitted a memorandum to the public prosecutor at the Court of Appeal in which he addressed a series of points that he considered to have not been clarified. He maintained that he still had not been granted access to the documents adduced by the sworn administrative inquiry and that there had been many inconsistencies between the various documents – for example, between order no. A5/2012 issued by the Athens public prosecution office and case file AF-10/541. In particular, the Athens public prosecution office had identified as the applicant’s son the person who had got out of the passenger’s seat of the Seat Ibiza and shot twice towards the policemen. However, case file AF10/541 had not made clear who had been in the passenger’s seat; therefore, the applicant considered any other conclusion to be arbitrary. He argued that the gun and hand grenade found next to his son’s body could not have belonged to him and considered it curious that the bullet that had been shot from the Glock had never been found. He contested in general the sequence of events described in the order of the Athens public prosecution office, arguing that other people could have been present on the scene and could have placed the guns next to his son’s body. He also claimed that there had been a trail of blood stains leading from 48 Kountouriotou Street to 52 Kountouriotou Street – that is to say for roughly forty metres; in his view, this proved that his son’s death had not been immediate and that the policemen had left him without any medical help. 29. On 10 February 2013 the public prosecutor at the Court of Appeal issued order no. 551/2012 dismissing the applicant’s appeal on the following grounds:
“... Th.K.’s description of facts was confirmed by A.X. [and] by the objective findings and was not refuted by any other evidence in the case file. In particular, it was established that [the officers], during their performance of their official duties – that is to say verifying the identity of the above-mentioned people – were attacked by the deceased with the aim of inflicting harm in respect of the life, or at least the physical safety of the police officers and especially of officer Th.K. who, at the time of the attack, had only the police car as cover and could have been gravely injured (even fatally) ...
... Following the assessment and weighing-up of all of the evidence, without exceptions, that was collected during the preliminary inquiry and more specifically, further to the criminal complaint, the witnesses’ testimony, the documents and written explanations [submitted by] the defendant, in conjunction with the appeal under consideration, together with the memorandum and documents that accompany it ... [it can be seen] that the police officers had to counter the above-mentioned unlawful and present attack given the degree of danger [and] the kind of harm that it threatened – that is to say the risk to the life or the physical safety of Th.K. – owing to the above-mentioned circumstances under which [the attack] took place, the fact that it was unprovoked, its intensity, the lack of safe cover and the lack of any other suitable means of countering it, but also given the professional duty [of the officers], which did not allow them to allow the deceased to escape. The officer had to counter the above-mentioned attack with gunshots, in the absence of any other suitable means [and] given the fact that at the time of the attack he was outside the police car and did not have any possibility to find cover behind any other object other than the police car, at which, however, the deceased was shooting (as proved by the damage caused to the roof of the police car by a bullet).Assessing all the elements together – namely the professional duty of the defendant, the degree of danger that the attack represented, the nature of the harm threatened and the above-mentioned circumstances under which the attack took place, the defensive actions taken by Th.K. in order to counter the unlawful and present attack against him did not exceed the maximum necessary bounds of defence, given that a fatal shot is considered as constituting a “neutralising” shot but that it has not been proved that [the officer] aimed at the deceased and that in addition, at the time at which [the defendant] fired the fatal shot the attack against him had not ended as the then unknown perpetrator was continuing to shoot ...”
The sworn administrative inquiry
30. Under order no. 265003/3/6a of 30 March 2010 issued by the director of the Attica emergency response team, a sworn administrative inquiry was conducted. During the course of that investigation, four police officers were requested to testify, two of whom had handled the incident via the radio after officers Th.K. and A.X. had called for back-up and two of whom had arrived at the scene after the incident had taken place. The first two officers described the call for back-up made by officers Th.K. and A.X. and the instructions that had been given to those officers – namely to wait and to stay under cover. The other two officers explained that they had replied to the call for back-up and described the scene they had faced when they had arrived on the scene – namely the dead body lying on the pavement, the police car at the crossroads and the two officers in a nearby building, clearly upset. In addition, testimony were taken from the owner of the Seat Ibiza, a nearby resident and H.M., the coroner, who had been called to the scene to examine the body of the deceased and had performed the autopsy afterwards. Officers Th.K. and A.X. also testified regarding the events of that night. Lastly, an officer who was an expert on ballistics was called to testify; he reported the results of the ballistics examination. 31. On the basis of the above-mentioned written testimony and other documents, a report on the findings of the sworn administrative inquiry dated 27 July 2010 and a report on the findings of the supplementary sworn administrative inquiry dated 4 March 2011 were drafted recommending that the case be closed as it was concluded that the police officers concerned had acted within the scope of their duties and had lawfully defended themselves. By a decision dated 27 June 2011, the Attica Chief of Police ordered that the case be closed. Access of the applicant to the case fileConcerning the documents of the sworn administrative inquiry

32. On 9 February 2011 the applicant lodged a request with the Attica Police Headquarters (referring to the criminal complaint lodged on 3 June 2010) to be furnished with a copy of the documents relating to the sworn administrative inquiry and the Athens public prosecution office’s opinion on them. He furthermore requested copies of all evidence and testimony relating to the incident of 10 March 2010, including photographs of the scene, the results of the ballistics examination, the autopsy results, details of how and when the body was identified, and in general, any evidence which could prove how the incident had taken place. On 26 April 2011 the Internal Terrorism Police replied that it had prepared a case file relating to the death of the applicant’s son, as well as to the arrest of members of a terrorist organisation; this case file had been transmitted to the Athens public prosecution office on 12 April 2010. The case had been assigned to an investigating officer; therefore, the Internal Terrorism Police no longer had any of the documents requested. In addition, on 11 May 2011 the Attica emergency response team transmitted the documents relating to the incident to the prosecutor at the Athens public prosecution office who had been placed in charge of conducting the preliminary inquiry following the lodging of the applicant’s complaint. The documents relating to the sworn administrative inquiry were sent to the Attica Police Headquarters. 33. On 3 May 2011 the applicant lodged a new request with to the Chief of Greek Police; he asked to be granted access to the case file and also asked for replies to all the questions he had asked in his document dated 9 February 2011. On 15 June 2011 the Internal Terrorism Police reiterated its reply (see paragraph 32 above) that all relevant documents had been transmitted to the relevant bodies. 34. On 9 April 2012 the applicant reiterated his request to be given the documents relating the Sworn Administrative Inquiry, but this time addressed it to the Attica Police Headquarters. That service forwarded the request on 17 April 2012 to the Police Staff Directorate (Διεύθυνση Προσωπικού – the police’s human resources department). On 9 July 2012 the Police Staff Directorate informed police officers Th.K. and A.X. of the request; Th.K. and A.X. objected to the applicant’s request for the above-mentioned documents. Both officers refused permission to grant the request, insisting – using identical wording – that they did not agree to the handover of any documents to the applicant “relating to the investigation into the circumstances in which my gun was used and which resulted in the fatal wounding of Lambros Fountas”. The Police Staff Directorate considered that the applicant had a legal interest in reviewing the requested documents in order to be able to use them in court, but officers Th.K. and A.X. lodged objections to the Data Protection Authority. On 11 August 2012 the Directorate of Police Staff transmitted the case file to the Data Protection Authority in order for it to rule on whether the communication of the relevant documents, which contained sensitive personal data under Article 7 § 2 of Law no. 2472/1997, could be allowed or not. On 21 August 2012 the applicant lodged a request with the Data Protection Authority to be allowed access to the documents in question. 35. On 5 August 2016 the Data Protection Authority postponed its decision on the objections lodged by the two officers in respect of the communication of their personal data in order to receive information regarding whether the case file and the report on the findings of the sworn administrative inquiry had been requested by and sent to the public prosecutor at the Court of First Instance or the prosecutor at the Court of Appeal. On 26 August 2016 the relevant authorities informed the Data Protection Authority that the conclusions of the sworn administrative inquiry had been transmitted to the Department of Preliminary Inquiries of the Magistrate Court of Athens. However, it appeared that the remainder of the documents relating to the sworn administrative inquiry had not been submitted to any investigative or preliminary-inquiry authorities. 36. By its decision 95/2016 dated 10 October 2016, the Data Protection Authority dismissed the officers’ objections and allowed the transmission of the documents relating to the sworn administrative inquiry to the applicant in order that he might use them before the Court, provided that the subjects of the personal data be informed thereof beforehand. The applicant’s representative received a copy of the documents relating to sworn administrative inquiry on 7 November 2016. Concerning the autopsy results
37. On 13 June 2012 the applicant lodged a request with the Forensic Medical Service of Athens for information on the autopsy conducted on the applicant’s son. On 3 July 2012 he received a reply, which confirmed that an autopsy had taken place on an identified body between 11 a.m. and 1 p.m. on the day of his death and that the applicant, as well as Lambros Fountas’ uncle, had been present at the morgue on the morning before the autopsy had taken place. Lastly, in respect of the bullet removed from the deceased, that had been delivered to the competent authorities in order for them to send it on to a specialised laboratory. On 3 July 2012 the applicant submitted a document to the Forensic Medical Service requesting that it be corrected in respect of its assertion that he and his brother-in-law had been present at the morgue on the morning of the death of the applicant’s son. He reiterated that request on 8 August, 17 August and 30 August 2012. No reply appears to have even been made. Concerning the documents of the preliminary inquiry
38. On 4 October 2010 the applicant lodged a request with the investigator conducting the investigation concerning the organisation called “Revolutionary Fight” to be given all documents of that investigation in so far as they were related to his son’s death. He received an oral reply that all those documents would be transmitted to the competent public prosecutor who would handle the applicant’s criminal complaint. 39. The applicant first requested the documents of the preliminary inquiry in his memorandum dated 14 January 2011 addressed to the public prosecutor at the Court of First-Instance (see paragraph 24 above). No reply appears to have been given to his request. 40. Following order no. A5/2012 by which the public prosecutor at the Court of First Instance dismissed the applicant’s criminal complaint and was served to the applicant on 21 February 2012, on 28 February 2012 the applicant lodged a request with the Athens public prosecution office for copies of the documents adduced during the preliminary inquiry and information on whether certain investigative acts had taken place. He furthermore requested the documents adduced during the sworn administrative inquiry, the results of the ballistics examination and the witness testimony, arguing that all this material had been taken into account by the public prosecutor at the Court of First Instance in his order no. A5/2012 and that he needed it in order to be able to effectively lodge an appeal under Article 245 § 4 of the Code of Criminal Procedure against the above-mentioned order. There is a signed hand-written note by the prosecutor from the Athens public prosecution office dated 2 March 2012 stating that the applicant’s request for copies of the above-mentioned documents had been granted. The applicant, however, maintained that he had never been informed of the outcome of his request; in his appeal dated 7 March 2012 against the order dismissing his criminal complaint, he once again complained about the lack of access to the documents and information regarding his son’s death. 41. Following order no. 551/2012, which dismissed the applicant’s appeal, on 1 April 2013 the applicant lodged a request with the Athens public prosecution office to be given a copy of that order; that request was granted on the same day. Pending judicial proceedings
42. On 24 February 2015 the applicant brought before the Athens Administrative Court of First-Instance an action for damages under Article 105 of the Introductory Law to the Civil Code against the Greek State “in respect of the mental suffering caused by my son’s murder [and] by the illegal actions of the opposing party’s agents, who hid and continue to hide from me all evidence relating to this murder”. The action was initially scheduled to be heard on 25 April 2018 and then adjourned until 24 October 2018. RELEVANT DOMESTIC LAW AND PRACTICECode of Criminal Procedure

43. The relevant Articles of the Code of Criminal Procedure are described in the Court’s judgment in Tsalikidis and Others v. Greece, (no. 73974/14, § 34, 16 November 2017). In addition, the following provision is relevant:
Article 243
When and by whom a preliminary inquiry is conducted
“1. A preliminary inquiry is conducted by any investigating officer upon a written order given by the Public Prosecutor... 2. If delay may give rise to imminent danger or if the preliminary inquiry concerns a felony or misdemeanour committed in flagrante delicto, then all investigating employees, pursuant to Articles 33 and 34, are obliged to undertake all necessary preliminary actions in order to confirm [that] the offence [actually occurred] and identify the perpetrator, even in the absence of a written order from the prosecutor. In such a case, they notify the public prosecutor by the fastest means and submit to him without any delay all reports that have been drafted. The public prosecutor, after receiving the reports, shall act in accordance with Articles 43 et seq ...”
Criminal Code
44. The relevant Articles of the Criminal Code, as in force at the material time, read as follows:
Article 22
Defence
“1. An offence committed in defence is not unlawful. Defence is a necessary offensive action committed against an attacker that a person commits in order to defend himself or another person from an unlawful and ongoing attack that is directed against them. The necessity of a measure of defence shall be determined by [assessing] the degree of the danger posed by the attack, the kind of damage threatened, the manner and intensity of the attack and the remaining aspects of circumstances in question.”
Article 23
Excess of defence
“Any person exceeding the [acceptable] bounds of defence shall be punished, if such excess was intentional, with a reduced sentence (Article 83); ... if such excess was owing to negligence, [he or she shall be punished] in accordance with the relevant provisions. He or she shall not be punished and shall not be held accountable for such excess if he or she acted in that manner because of fear or anxiety caused by the attack.”
Article 27
Intent
“1. A person acts with intent when he or she undertakes acts that constitute an offence under the law, or when he or she knows that such acts may arise from his or her actions but [nevertheless proceeds with those actions]. 2. When the law stipulates that an offence must have been knowingly committed, potential intent shall not suffice. When the law requires that an offence must have been committed with intent to produce a certain result, it is required that the perpetrator must have pursued that result”. Article 299
Intentional Homicide
“1.  [A man or woman] who has killed another intentionally shall be punished by the death sentence or life imprisonment. 2. If the offence was decided and executed in the heat of the moment, it shall be punished by a sentence of incarceration.”
Law no. 3169/2003 on the carrying and use of firearms by police officers, the training of police officers in the use of firearms, and other provisions
45. The relevant provisions of Law no. 3169/2003, which is entitled “The carrying and use of firearms by police officers, the training of police officers in the use of firearms, and other provisions”, as in force at the relevant time, read as follows:
Article 1
Definition of terms
“In the present law, the following terms shall have the meanings given below:
...
d. The use of a firearm shall be constituted by the activation of a weapon, in accordance with its purpose and the firing of a bullet. Depending on the target of the bullet, the use of the firearm falls under one of the following categories:
(1) a warning shot, when no target is aimed at;
(2) a shot against objects, when objects are aimed at;
(3) an immobilisation shot, when non-vital parts of the human body are aimed at (especially the lower limbs); and
(4) a neutralisation shot, when a person is aimed at and his or her death is considered probable.
e. An armed attack shall mean the use of a weapon referred to in Article 1 of Law no. 2168/1993 by an attacker against another person or the threat of its being directly used against another person. An armed attack shall also mean such a threat using a convincing imitation of a weapon or an inactive weapon [ανενεργό όπλο].”
Article 3
Use of a firearm and the principles governing it
“1. Police officers may, during the performance of their duties, aim their firearms when there is a danger of armed attack against them or against third persons. 2. Police officers may use their firearms if that is required for the performance of their duties in the following circumstances:
a. when they have exhausted all means less drastic than [firing a] gunshot, unless they are not available or suitable in the specific case. Less drastic means shall mainly include exhortation, incitement, the use of obstacles [χρήση εμποδίων], the use of physical force, striking, permitted chemical substances or other specialised means, or the issuance of a warning that a firearm may be used or the issuance of a threat to use a firearm.
b. when they have declared their capacity [that is to say identified themselves as policemen] and have issued a clear and comprehensible warning of the imminent use of a firearm and provided adequate time in which to respond, unless this is pointless under the circumstances in question or intensifies the risk of death or bodily injury.
c. the use of firearm does not constitute an excessive measure in view of the kind of harm threatened and the dangerous nature of the threat. 3. In the event that the circumstances outlined in the preceding paragraph are met, a less drastic deployment of the firearm shall be undertaken, unless this is pointless given the circumstances in question or intensifies the risk of death or bodily injury. Such [initial] less drastic use of the firearm shall [be followed by] the escalation of use of the firearm, pursuant to sub-paragraph d of Article 1 with the smallest possible and necessary harm. 4. Warning shots or shots against objects shall be allowed, especially in cases of risk posed by animals or [the need to] issue a warning that a shot may be fired at a person, provided that all necessary measures are taken in order not to harm a person in the event that the bullet misses or ricochets ... 6. Neutralisation shots shall be allowed, when they are necessary, in the following cases:
a. in order to counter an attack linked to an imminent risk of death or grave bodily injury of a person;
b. in order to rescue hostages at risk of death or grave bodily injury. 7. Immobilisation or neutralisation shots shall be prohibited:
...
d. against a person who escapes when called on to subject [himself or herself] to legitimate checks...
... 10. Any instance of the use of firearms by policemen shall be reported immediately to the relevant police agency and judicial authority.”
Introductory Law to the Civil Code
46. Article 105 of the Introductory Law to the Civil Code provides as follows:
“The State shall be duty-bound to make good any damage caused by unlawful acts or omissions attributable to its organs in the exercise of public authority, except where such unlawful act or omission was in breach of an existing provision but was intended to serve the public interest. The person responsible and the State shall be jointly and severally liable, without prejudice to the special provisions on ministerial responsibility.”
THE LAW
ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION UNDER ITS PROCEDURAL LIMB
47. The applicant complained under Article 2 of the Convention that the domestic authorities had failed to effectively investigate the circumstances surrounding his son’s death. Article 2 of the Convention reads 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 violence;
(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.”
AdmissibilityThe parties’ arguments

48. The Government submitted that the application should be rejected owing to the non-exhaustion of domestic remedies, as the applicant had brought an action for damages under Article 105 of the Introductory Law to the Civil Code, requesting the sum of 49,990 euros (EUR) for the psychological damage he [had] suffered owing to his son’s death and due to the agents’ conduct who did not share all relevant evidence with him. The applicant’s action covered the same issues as his application to the Court and was still pending before the Greek courts. If the domestic courts considered that the State agents had acted unlawfully, they would award the applicant damages. Accordingly, his application should be rejected due to the non-exhaustion of domestic remedies, pursuant to Article 35 of the Convention. 49. The applicant contested the Government’s arguments. In particular, he argued that the subject of his action for damages was different to that of the complaint that he had submitted before the Court. The first referred to the psychological damage he had suffered owing to his son’s death and the refusal of the State authorities to cooperate in handing him all the relevant documents. On the contrary, his application to the Court referred to the ineffectiveness of the investigation that had been conducted by the authorities into his son’s death.

Outcome for Article 2: violation