The family of Jean Charles de Menezes have lost their challenge at the European Court of Human Rights (ECHR) for police officers to be prosecuted over the killing of the Brazilian at a London tube station in 2005. De Menezes, 27, was shot several times in the head at point blank range at Stockwell station on 22 July 2005 in what was a case of mistaken identity.
The Brazilian was mistaken for a potential suicide bomber two weeks after the 7/7 terrorist attacks and one day after four explosive devices were discovered in rucksacks across London, three on underground trains and one on a bus, during a failed attempt to repeat the catastrophic bombings in the capital which left 52 people dead.
No officer has been charged or faced disciplinary action in the connection with the shooting, but Met police were found guilty of breaching health and safety laws and fined £175,000 ($252,000, €222,000). In 2009, De Menezes' family also agreed an undisclosed settlement with Scotland Yard.
The Crown Prosecution Service (CPS) ruled in 2006 neither of the officers from the Met's armed unit, CO19, or any senior officer should be charged over the incident based on a conclusion that there was less than a 50% chance of conviction. They said the decision arrived as they could not prove the officers did not act in genuine self-defence due to reports of de Menezes' movements when the officers approached him inside the tube carriage.
Patricia Armani Da Silva, the cousin of de Menezes who lived with the 27-year-old at the time of his death, took the case to the ECHR in Strasburg after the family exhausted all other routes in the UK to have officers prosecuted for the shooting. The challenge was based on the argument the decision not to prosecute was incompatible with Article 2 of the European Convention of Human Rights (ECHR) which covers "everyone's right to life shall be protected by law" and the 50% chance of prosecution threshold used by the CPS is too high. The application was lodged with the ECHR on 21 January 2008.
The ECHR have now ruled that it was right not to charge the officers involved in the shooting of de Menezes as authorities had not failed in their obligations under Article 2 as well as insufficient evidence. It said: "The decision not to prosecute any individual officer had not been due to any failings in the investigation or the State's tolerance of or collusion in unlawful acts; rather, it had been due to the fact that, following a thorough investigation, a prosecutor had considered all the facts of the case and concluded that there had been insufficient evidence against any individual officer to prosecute in respect of any criminal offence."
The day after the failed 21 July bombing attempt in London, Met Police believed Hussain Osman and one other suspect lived inside a block of flats in Scotia Road, Tulse Hill, south west London and began monitoring those coming in and out of the building.
By sheer coincidence, de Menezes lived in the same block of flats and was seen by surveillance officers leaving for work at around 09.30am. An officer in the surveillance van saw de Menezes and suggested "it would be worth someone else having a look". Police mistook de Menezes for Osman based on one photo taken from the suspect's gym records.
Around 15 minutes later, de Menezes stepped off the number 2 bus in Brixton but quickly got back on after realising Brixton station was closed in order to carry on towards nearby Stockwell station. Believing they were tracking the right man, officers thought de Menezes stepping on and off the bus was an attempt to lose anyone who may be tracking him.
According to the family's lawyer, Michael Mansfield QC, this simple decision to get back on the bus meant that de Menezes was "virtually dead" as police were told to deploy a "shoot to kill" policy for any potential suicide bomber. According to the CPS, all the available evidence suggests that the officers "believed that Jean Charles had been identified as a suicide bomber, that they had been directed to stop him from blowing up the train and that they had to shoot him to prevent that."
In December 2008, an inquest jury into de Menezes' killing returned an open verdict after rejecting the police's version of events. These rejected claims included how officers had shouted "armed police" before firing and that de Menezes vaulted over the ticket barriers before running down the escalators to board the tube at Stockwell. The coroner had already ruled out a verdict of unlawful killing.