EHRM, 15-05-2007, nr. 52391/99

Mr Vinodkumar Hoeseni reported the theft of his scooter to the Amsterdam/Amstelland police on 19 July 1998.

Mr 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.

Mr 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 off.

Mr 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.

Ms 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.

She 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.

Mr Petrus van den Heuvel was questioned on 19 July 1998. He stated that he lived on the fifth floor of the Huigenbos building.

Happening 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.

The 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.

Police 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.

Officer 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 vehicle.

The 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.

As 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.

Officers 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 the scooter.

Police 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.

On 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.

The 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 direction indicated.

As 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.

Four 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 services.

Officer 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.

Police Officer Renate Quirina van Daal was questioned on 20 July 1998.

Officer 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.

At 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.

Shortly 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.

Superintendent Sikking had called by radio: ‘All right boys, everyone go to Huigenbos.’ (‘Jongens met z'n allen naar Huigenbos’).

Very 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.

Officer Van Daal had later heard Officer Brons say that the ambulance was needed urgently because the suspect was in a very bad way.

It was only later that Officer Van Daal had been informed by other police officers that it was in fact Officer Brons who had fired.

Police 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 police dog.

He 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 indicated.

Officer 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.

Officer 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.

He 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.

He 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 the dog.

The 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.

Officer 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.

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 Hindustani1. 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.

Officer 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.

At 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.

Ms 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.

Ms 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 Nancy.

Taken 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.

After 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.

Ms 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 ‘ladykiller’.

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.

The youth had looked as though he might have been smoking cannabis, but Ms Boujedaine could not be sure of that.

He 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 silver-grey scooter.

The 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 registers.

Several times he had repeated that it was already 9 p.m. and Ms Boujedaine should close Nancy's cash register.

Ms Boujedaine had felt uncomfortable and frightened, particularly after the youth had indicated his intention ‘to wring the manager's neck’.

The 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.

Mr 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.

On 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.’

Mr De Getrouwe's wife, greatly upset by the sight of the pistol, had pulled him away. The youth had got back onto the scooter.

None of the bystanders, who had been numerous, had offered any assistance. They had clearly been deterred by the sight of the pistol.

Mr Sanchaai Kumar Bhondoe, the brother of Mr Hoeseni's girlfriend, was questioned on 22 July 1998.

On 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.

Mr Petrus van den Heuvel was questioned a second time on 21 July 1998, this time by Detective Chief Superintendent Van Duijvenvoorde.

Supplementing 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.

After 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.

Officer 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 present.

Officer 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.

Driving 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.

Officers 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 understand.

Officer 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.

The 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.

Officer 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.

Officer 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.

Officer 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.

Officer 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.

Officer 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.

Officers 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 procedure.

Officer 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.

Like 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.

He 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.

Seeing 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.

Officer 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.

Officer 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.

The 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.

The 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.

The 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.

As 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 seconds.

Officer 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.

Officer 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.

Using 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.

After 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).

Officer 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.

Ms Henna Emelita Rijssel, questioned on 24 July 1998, was a social worker living in Amsterdam.

On 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.

They 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.

They 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.

Ms 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.

She 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 firearm.

The 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.

Another 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 immediately.

Ms 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 unfolded.

Immediately 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 mensenkind.’).

The policeman had felt the youth's pulse. The youth's arm had fallen limp.

More 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.

On 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.

Ms 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.

The 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.

Ms 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?’

The 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.

A 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.

The 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 dropped it.

Ms 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.

The official record states that the witness made her statement in the presence of her mother in view of her emotional state.

Mr Merlijn van Rij, questioned on 24 July 1998, was a schoolboy born in 1982 and resident in the Huigenbos building.

On 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.

At 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.

Mr Matthew Jiri Oostburg, questioned on 24 July 1998, was a schoolboy born in 1983.

On 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 or someone.

Just 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 was happening.

On the way towards the building they had been stopped by police who were cordoning off the area.

Having 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.

Mr 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.

He had later seen the emergency services arrive. It had been apparent that the youth was dead because they had covered him with a white sheet.

Police Officer Boonstra was interviewed by Detective Chief Superintendent Van Duijvenvoorde on 27 July 1998.

He 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.

After 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.

Only 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.’).

Officer 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.

Mr 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 Dekker.

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.

Spotting 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.

Mr Hoeseni had told the police officers about the firearm at the same time as he had handed the insurance papers to them.

When 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.

Mr Wladimir Mohammed Abzell Ali Chitanie, questioned by Detective Chief Superintendent Van Duijvenvoorde on 3 August 1998, was a civil servant born in 1945.

On 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 metres.

He 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.

While 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.

At 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.’

Having 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.

It 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 blood.

Mr 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 public prosecutor.

In Mr Chitanie's opinion, any threat had disappeared after the youth had thrown away the object. He had not witnessed what had happened before.

On 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 them.

On 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 firearm.

Mr 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.

Mr 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.

At 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.

Only 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 upset.

Afterwards 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 unarmed themselves.

Detective 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 present.

Officer 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.

It 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.

It 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.

Moravia 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.

Officer 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.

The 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.

Officer 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.

Detective 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.

Mr 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.

Mr 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.

For the remainder, Mr Van den Heuvel confirmed his earlier statement.

Police 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.

Officer 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.

He 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.

He 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.

Officer 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 rattle.

When 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.

Ms 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.

At 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.

Ms 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.

Ms 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.

Ms 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.

Ms 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 vehicle.

Mr 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.

At 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.

Ms 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.

The 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 a sheet.

Mr 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.

Mr 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.

Mr 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.

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.

On 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.

During 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 sheet.

Some persons present had mentioned a mobile telephone which the police had said was a pistol.

The 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.

These two individuals were Gypsies who spoke limited Dutch and English. Ms Jalink had no idea why they were so reluctant to co-operate fully.

Detective Chief Superintendent Van Duijvenvoorde interviewed Mr Chitanie a second time on 17 August 1998.

Mr Chitanie repeated that he had not witnessed any struggle between the victim and the first police officer.

Asked 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.

Mr 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.

Mr 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.

On 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.

In 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.

The 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.

The 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.

The 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.

The 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 a whole.

The 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.

In conclusion, the Chamber found no violation of Article 2 as far as the effectiveness of the investigation was concerned.

The 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.

It 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 Investigation Department.

That 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.

The 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.

The Chamber did not find it established that the applicants had been denied access to certain documents entirely.

Consequently, 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.

The 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.

The 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.

The 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.

The applicants essentially restated the position which they had defended before the Chamber.

In 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 ignored.

Certain 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.

A 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.

As 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 independent.

It 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 station, Flierbosdreef.

As 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 the applicants.

The 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.

The 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.

In 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.

The 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 walking by.

Since 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.

The 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.

It 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.

This 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.

Any 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.

It 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.

There 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.

The 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):

and also as follows (see, among many other authorities, Anguelova v. Bulgaria, no. 38361/97, § 140, ECHR 2002-IV):

The 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.

The Court finds it opportune to clarify the scope and content of its examination of the effectiveness of the investigation.

In 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).

Secondly, 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.

The 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).

The 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 investigation.

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.

There has not therefore been a violation of Article 2 in this regard.

Argument before the Grand Chamber was focused on whether the proceedings and the decision of the Court of Appeal should have been public.

The 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.

Article 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.

Turning 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 Netherlands authorities.

There has accordingly not been a violation of Article 2 as regards the procedure followed by the Court of Appeal.

The 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.

There 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).