Lexploria

Information Note on the Court’s case-law 139

March 2011

Giuliani and Gaggio v. Italy [GC] - 23458/02

Judgment 24.3.2011 [GC]

Article 2

Positive obligations

Article 2-1

Life

Effective investigation

Article 2-2

Use of force

Fatal shooting of a demonstrator by a member of the security forces at a G8 summit: no violations

Facts – During an authorised demonstration at the G8 summit in Genoa, extremely violent clas hes broke out between anti-globalisation activists and the law-enforcement agencies. A jeep with three carabinieri on board stalled and came under attack from demonstrators. One of the carabinieri , who was suffering from the effects of tear gas, had been g iven permission by his commanding officer to board the jeep in order to escape the clashes. Injured and panic-stricken, he fired two shots outside the vehicle and Carlo Giuliani was shot in the face and mortally wounded. In attempting to move the vehicle a way the driver drove twice over the young man’s motionless body. An investigation was opened immediately by the Italian authorities. Criminal proceedings for intentional homicide were brought against the officer who had fired the shots and the vehicle’s dr iver. The autopsy revealed that the death had been caused by the shot. The public prosecutor’s office ordered three expert reports and authorised the cremation of the body. The proceedings were discontinued by the investigating judge.

In its judgment of 25 August 2009 (see Information Note no. 122), a Chamber of the Court held unanimously that there had been no violation of Article 2 with regard to the excessive use of force. It held by five votes to two that there had been no violation of Article 2 regarding the State’s positive obligation to protect life, and by four votes to three that there had been a violation with regard to the State’s procedural obligations under that Article.

Law – Article 2: (a) Substantive aspect

(i) The use o f lethal force : The moments leading up to and following the use of lethal force by the carabiniere had been photographed and filmed. The footage showed clearly that there had been an unlawful and very violent attack against the law-enforcement agencies’ vehicle, which was simply attempting to leave the scene and did not pose any threat to the demonstra tors. In this extremely tense situation, Carlo Giuliani had decided to pick up a fire extinguisher lying on the ground and had raised it to chest height with the apparent intention of throwing it at the vehicle’s occupants. His actions could reasonably be interpreted by the carabiniere as an indication that, despite the latter having issued verbal warnings and shown his gun, the attack on the jeep was not about to cease or diminish in intensity. Moreover, the vast majority of the demonstrators had appeared to be continuing the assault. The officer’s honest belief that his own life and those of his colleagues were in danger could only have been strengthened as a result. That had served to justify recourse to a potentially lethal means of defence such as the f iring of shots. In addition, the direction of the shots had not been established with certainty. The carabiniere could only fire, in order to defend himself, into the narrow space between the spare wheel and the roof of the jeep. The fact that a shot fired into that space risked causing injury to one of the assailants, or even killing him, as had sadly been the case, did not in itself mean that the defensive action had been excessive or disproportionate. Hence, the use of lethal force had been absolutely ne cessary “in defence of any person from unlawful violence” within the meaning of Article 2 § 2 (a).

Conclusion : no violation (thirteen votes to four).

(ii) The legislative framework governing the use of lethal force, and the weapons issued to the law-enfor cement agencies : The wording of the provisions governing the use of force in this case was not wholly identical to that of Article 2 but nevertheless echoed it, and the difference in wording could be overcome by the interpretation of the domestic courts. T he argument that the law-enforcement agencies should have been issued with non-lethal weapons was not relevant in a case where the person had been killed during a sudden and violent attack which had posed an imminent and serious threat to the lives of thre e carabinieri .

Conclusion : no violation (ten votes to seven).

(iii) Whether the organisation and planning of the operations had been compatible with the obligation to protect life : The sudden attack on the jeep, a few minutes before the fatal shooting, ha d occurred during a moment of relative calm and could not have been predicted. Furthermore, large numbers of personnel had been deployed to police the event, who either belonged to specialised units or had received special training. In view of their number s, they could not all have been required to have lengthy experience and/or to have been trained over several months or years. Such a requirement could be imposed only in a case where the law‑enforcement agencies were dealing with a precise and identifiable target. Accordingly, no violation of Article 2 could be found solely on the basis of the selection for the G8 summit in Genoa of a carabiniere who was only twenty years and eleven months of age at the time and had been serving for only ten months. Further more, the carabiniere ’s actions during the attack on the jeep had been found not to amount to a violation of Article 2 in its substantive aspect. Lastly, the decisions taken by the carabinieri immediately before the attack on the jeep regarding the choice of vehicle, the route taken and the wearing of a weapon by an injured officer who had been deemed unfit to remain on duty were not open to criticism. As to the events following the fatal shooting, there was no evidence that the assistance rendered to Carlo Giuliani had been inadequate or delayed or that the jeep had driven over his body intentionally. In any event, as the autopsy report had shown, the injuries to the brain had been so severe that they had resulted in death within a few minutes. The Italian authorities had therefore not failed in their obligation to do all that could reasonably be expected of them to provide the level of safeguards required during operations potentially involving the use of lethal force.

Conclusion : no violation (ten votes to seven).

(b) Procedural aspect – The domestic investigation had been sufficiently effective to enable it to be determined whether the use of lethal force had been justified and whether the organisation and planning of the policing operations had been comp atible with the obligation to protect life. While it was true that the applicants (the parents and sister of Carlo Giuliani) had been unable to apply to join the proceedings as civil parties, they had nevertheless had rights and powers as injured parties w hich they had exercised during the investigation. Furthermore, while giving notice of an autopsy scarcely three hours before the beginning of the examination could make it difficult in practice, if not impossible, for injured parties to exercise their powe r to appoint an expert of their choosing and secure the latter's attendance at the forensic examinations, Article 2 did not require, as such, that the victim's relatives be afforded that possibility. As to the failure by the forensic doctors to extract and record the fragment of bullet lodged in the victim's head, the use of force would have been justified in any case, as observed from the standpoint of the substantive aspect of Article 2. It followed that the metal fragment in question had not been crucial to the effectiveness of the investigation. The Court further noted that the cremation of the body, which had made any further forensic examination impossible, had been authorised at the applicants’ request.

The evidence gathered by the prosecuting authori ties, and in particular the footage of the attack on the jeep, had led to the conclusion beyond reasonable doubt that the carabiniere had acted in self-defence, which constituted a ground of justification under Italian criminal law. It could not be said th at the prosecuting authorities had accepted without question the version supplied by the law-enforcement officers implicated in the events. The fact that the carabinieri had been given the task of conducting certain objective technical tests had not advers ely affected the impartiality of the investigation. More delicate issues arose regarding the appointment by the prosecuting authorities of a ballistics expert who had openly defended the view, in an article written for a specialist journal, that the carabi niere had acted in self-defence. Given that the expert reports ordered in the context of the investigation had been designed, among other things, to provide evidence for or against that view, the presence of an expert who had preconceived ideas on the subj ect had been far from reassuring. Nevertheless, the expert in question had been just one member of a four-expert team and the tests he had been required to carry out for the purposes of the ballistics report had been of an essentially objective and technic al nature. Accordingly, his presence had not been capable, in itself, of compromising the impartiality of the domestic investigation. Furthermore, it had not been established by the applicants that the investigation had lacked impartiality and independence . Lastly, the investigation had been conducted with the requisite diligence and could not be said to have been beset by excessive delays or lapses of time.

Conclusion : no violation (ten votes to seven).

The Grand Chamber also held, by thirteen votes to fou r, that there had been no violation of Article 13 and, unanimously, that there had been no breach of Article 38.

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