JOINT PARTLY DISSENTING OPINION OF JUDGE S ROZAKIS, TULKENS, ZUPANČIČ, GYULUMYAN, ZIEMELE, KALAYDJIEVA AND KARAKAŞ

(Translation)

We are unable to agree with the majority ' s conclusions concerning points 2, 3 and 4 of the operative provisions, according to which there has been no violation of Article 2 of the Convention in its substantive and procedural aspects.

1. As regards the substantive aspect , the State ' s positive obligation to protect life under Article 2 of the Convention raises two main questions in the instant case which, as we shall see, are closely linked. Firstly, did the State take the necessary legislative, administrative and regulatory measures to reduce as far as possible the risks and consequences of the use of force ? Secondly, were the planning, organisation and management of the policing operations compatible with that obligation to protect life ?

2. We further believe that the obligation to protect life has to be considered in the specific context of the facts of the case: where a State accepts the responsibility of organising a high-risk international event, that obligation implies a duty to put in place the appropriate measures and strategies to maintain law and order. In that connection, it cannot be argued that the authorities were not aware of the possible dangers entailed in an event such as the G8 summit. Moreover, the number of law-enforcement officers deployed on the ground demonstra tes this clearly (see paragraph 255 of the judgment). In these circumstances, Article 2 of the Convention cannot be interpreted or applied as if the case merely concerned an isolated incident occurring in the course of accidental clashes, as the majority suggest. In the case of mass demonstrations , which are becoming more and more frequent in a globalised world, the obligation to protect the right to life safeguarded by the Convention necessarily takes on another dimension.

3. First of all, as regards the domestic legislative framework governing the use of lethal force, which, under the terms of Article 2 of the Convention, must be capable of protecting the lives of the demonstrators, we observe shortcomings which played a decisive role in the death of the applicants ' son. The Government did not make reference to any specific provisions governing the use of firearms during police operations, and indeed observed that circulars had simply been issued by the senior command of the carabinieri referring to the general provisions of the Criminal Code (see paragraph 207 of the judgment).

4. The 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, which the judgment cites among the relevant international materials (see paragraph 154 of the judgment), provide pointers in this regard which it is now impossible to ignore. The Preamble states that “[these] basic principles ... , which have been formulated to assist Member States in their task of ensuring and promoting the proper role of law enforcement officials, should be taken into account and respected by Governments within the framework of their national legislation and practice, and be brought to the attention of law enforcement officials as well as other persons, such as judges, prosecutors, lawyers, members of the executive branch and the legislature, and the public”.

5. As regards the use of firearms , paragraph 2 of the Principles is crucial: “ Governments and law enforcement agencies should develop a range of means as broad as possible and equip law enforcement officials with various types of weapons and ammunition that would allow for a differentiated use of force and firearms. These should include the development of non-lethal incapacitating weapons for use in appropriate situations, with a view to increasingly restraining the application of means capable of causing death or injury to persons. For the same purpose, it should also be possible for law enforcement officials to be equipped with self-defensive equipment such as shields, helmets, bullet-proof vests and bullet-proof means of transportation, in order to decrease the n eed to use weapons of any kind”.

6. Admittedly, in the particular circumstances of this case, given the violence of the attack to which M.P. and his colleagues were subjected, there is no guarantee that rubber bullets would have had a sufficient deterrent effect to avert the danger posed by large numbers of demonstrators wielding blunt instruments . The same may be true in many similar situations with which the law-enforcement agencies are confronted. For that reason we would not argue that the officers in the present case should have b een issued only with non-lethal weapons ; the State was empowered to decide that the law-enforcement personnel should also be equipped with guns firing live ammunition. Nevertheless, o ne thing is certain: M.P. did not have any alternative means of defence available to him. While he could have fired into the air or at a different angle, he had no weapon with which to defend himself other than the Beretta p arabellum pistol .

7. Next, as regards the second aspect of the obligation to protect life arising out of Article 2 of the Convention, namely the planning and management of the policing operations, we believe that there was a lack of organisation imputable to the State. In its judgment in Halis Akın v. Turkey ( no. 30304/02, § 24 , 13 January 2009 ), the Court reiterated that “[i]n keeping with the importance of this provision in a democratic society, [it] must, in making its assessment, subject instances of the use of deliberate lethal force to the most careful scrutiny, taking into consideration not only the actions of the agents of the State who actually administer the force but also all the surrounding circumstances including such matters as the planning and control of the actions under examination”.

8. M.P., one of the large number of carabinieri present at the scene and the person who fired the fatal shot, was a young man aged twenty years and eleven months who had been performing military service for only ten months. Furthermore, it does not appear from the case file that he had received specific training concerning public-order operations or how to act in the event of disturbances during demonstrations. Finally, given his youth and lack of experience, it is difficult to accept the fact that he did not receive more support from his superior officers and, above all, that he was not given particular attention once he had been judged unfit to continue on active duty because of his physical and mental state. In these circumstances, moreover, the fact that he was left in possession of a gun loaded with live ammunition is especially problematic.

9. That situation is in clear contradiction with paragraph 18 of the 1990 United Nations Basic Principles, according to which: “Governments and law enforcement agencies shall ensure that all law enforcement officials are selected by proper screening procedures, have appropriate moral, psychological and physical qualities for the effective exercise of their functions and receive continuous and thorough professional training. Their continued fitness to perform these functions should be subject to periodic review.”

10. Lastly, as regards the attack on the jeeps – which, incidentally, were not fitted with protective grilles on the rear and side windows – it was obviously conceivable that the vehicles might come under attack, even though they were intended for the transport of wounded officers rather than to support law-enforcement personnel in the event of clashes with demonstrators. In an urban guerrilla-type situation it was to be expected that the demonstrators would not necessarily differentiate between armoured vehicles and those providing logistical back-up.

11. In the light of the foregoing, we believe that the failings in the organisation of the law-enforcement operations should be assessed from the standpoint of both the criteria for selecting the armed carabinieri deployed in Genoa and the failure to give proper consideration to the particular situation of M.P., who, despite being in a state of distress and panic, had been left in a vehicle which was not adequately protected , with a lethal weapon as his only means of defence . The requirement to protect human life called for greater support to be provided to the young officer.

12. In paragraph 253 of the judgment the majority state that the application did not concern the organisation of the public-order operations during the G8 as such, but was confined to examining, among other things, whether, in the organisation and planning of that event, failings had occurred which could be linked directly to the death of Carlo Giuliani. Our answer to that question is in the affirmative. The lack of an appropriate legislative framework governing the use of firearms, coupled with the shortcomings in the preparation of the policing operations and in the training of the law ‑ enforcement personnel, disclose real and serious problems in the maintenance of public order during the G8 summit. In our opinion, these shortcomings should be regarded as linked to the death of Carlo Giuliani. Had the necessary measures been taken, the chances of the demonstrators ' attack on the jeep ending so tragically could have been significantly reduced.

13. In relation to the procedural aspect of Article 2 of the Convention, two questions arise. The first concerns the issue whether the conditions in which the autopsy and the cremation of the body were carried out undermined the effectiveness of the investigation, while the second relates to the decision not to institute proceedings against the police officials.

14. The circumstances surrounding the autopsy disclose failings imputable to the authorities. First of all, the applicants were given notice very late of this fundamental step in the investigation, making it virtually impossible for them to appoint an expert of their choosing. Furthermore, as the prosecuting authorities themselves stressed, the expert report was “superficial”, the doctors having omitted, in particular, to extract and record a crucial piece of evidence, namely the fragment of bullet lodged in the victim ' s head. Of course, there is no certainty that any test s carried out on the fragment would have yielded a definitive answer to the question whether the fatal bullet had been deflected by an object before hitting the applicants ' son. Nevertheless, it was not beyond the bounds of possibility that they might have shed considerable light on the matter (the way in which the fragment was deformed, for instance, or the presence of traces of material might have helped to reconstruct its trajectory). Moreover, it is common practice in conducting autopsies to extract and record any object found in the body which might have contributed to the person ' s death.

One of the experts, Mr Salvi, stated at the “trial of the twenty-five” that the fragment in question had been very small and very difficult to recover from the mass of brain tissue and, above all, was of no use for the purposes of the ballistics test s. Be that as it may, it was up to the forensic experts to undertake the necessary efforts to record any object capable of clarifying the circumstances of the death and lethal act in a homicide case that had attracted an exceptional degree of media attention. The experts ' assumption that the fragment was of no relevance for ballistics purposes proved, moreover, to be mistaken: in view of M.P. ' s statements it was vital to establish whether he had fired upwards with the aim of frightening off his assailants or at chest height with the aim of hitting them or accepting the risk of killing them.

In the light of the foregoing, we believe that the conditions in which the autopsy was carried out gave rise to a violation of Article 2 of the Convention in its procedural aspect.

15. The Government judged the applicants ' conduct to be “ambiguous”. The applicants, so the Government argued, had been aware that the results of the autopsy ordered by the public prosecutor would not be known for another sixty days. Concern to ensure that the examinations were carried out in a professional and reliable manner might have prompted them either to con test the lawfulness of the autopsy or to request that it be performed again. Far from doing this, they had requested permission to cremate the remains. In doing so they had known, or should have known, that if their request was granted no further examination of the body would be possible. If the applicants had wished to retain the option of further forensic examination, according to the Government, they should have opted to have their son buried.

16. It is our belief that a family dealing with such a tragic event cannot be criticised for failing to weigh up carefully all the ramifications of a request to have the remains returned to them, made immediately after their son ' s death. Although the applicants requested permission to cremate the body, the public prosecutor ' s office could have refused the request or insisted that the cremation should not take place until the results of the autopsy had been published. On the latter point it would have been preferable for the forensic experts to be given a shorter deadline for completion of their task. A period of sixty days for the preparation of a report a few pages long in such a sensitive and widely publicised case seems excessive.

17. In these circumstances we believe that the Grand Chamber should have upheld and reinforced the Chamber ' s finding that the circumstances surrounding the autopsy and the cremation of the applicants ' son ' s body were in breach of Article 2 in its procedural aspect.

18. The second question is whether the lack of an investigation aimed at establishing possible liability on the part of certain police officials breached the procedural obligations arising out of Article 2.

We have just concluded that there were a number of failings, imputable to the Italian authorities, in terms of the support provided to M.P. and the consideration of his particular situation during the G8 summit in Genoa , and in terms of the organisation of the policing operations. This being so, was there an obligation to institute investigations to elucidate these aspects of the case? The domestic investigation in the instant case was confined to the exact circumstances of the incident itself, examining only whether those immediately involved should be held liable, without seeking to shed light on possible shortcomings in the planning and management of the public-order operations.

19. Of course we agree that it would be unreasonable to require a State to institute a criminal investigation where no offence has been committed. In line with the general principles of criminal law common to the Contracting States, in the circumstances of the present case the only persons who might have be en held criminally responsible for the death of the applicants ' son were M.P. and F.C. , who were placed under investigation and against whom proceedings were brought. However, those proceedings, conducted by the prosecuting authorities, ended with a request to discontinue the case on the basis of Articles 52 and 53 of the Criminal Code (see paragraphs 67 et seq. of the judgment), which was granted by the Genoa investigating judge (see paragraphs 82 et seq. of the judgment), thus excluding any possibility of adversarial proceedings before a judge.

20. It is true that e xtending the procedural obligations arising out of Article 2 to the point of requiring other individuals to be charged would impose an excessive and impracticable burden on the respondent State and would be liable to be contrary to Article 7 of the Convention. The fact remains, however, that an investigation capable of leading to the identification and , possibly, the punishment of the persons responsible could also be disciplinary i n character. In this regard it is astonishing that, in the wake of the death of a demonstrator following the use of lethal force by an agent of the State (an exceedingly rare occurrence in Italy ), the Government should acknowledge that no administrative or disciplinary investigation was commenced concerning the representatives of the law-enforcement agencies. Admittedly, any such investigation might have concluded that there was no evidence of any disciplinary offence in the training and support given to M.P . or, more broadly, in the organisation of the policing operations. However, it might equally have shed light on the circumstances surrounding some crucial aspects of the case which have unfortunately remained obscure ( in particular, the criteria used in selecting and training the officers conducting the public-order operation s at the G8 and the reasons why M.P. ' s personal situation was not taken duly into account).

21. The fact that no disciplinary proceedings of any kind were instituted against the carabinieri appears to have been based on the preconceived idea that despite the tragic turn taken by events there was no criticism to be made of the manner in which the officers had been deployed on the ground or the way in which orders had been given throughout the chain of command. However, it is clear from all the arguments put forward by the Government in this case that the dangers linked to the rioting and the risks facing the law-enforcement officers had been largely foreseeable. The approach taken is difficult to reconcile with the procedural obligations arising out of Article 2 of the Convention.