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

(Translation)

To our considerable regret we are unable to subscribe to the majority view, not just in relation to the finding that there has been no violation of Article 2 of the Convention in its substantive and procedural aspects as regards the domestic legislative framework governing the use of lethal force, the weapons with which the law-enforcement agencies were issued during the G8 summit in Genoa and the organisation and planning of the policing operations at the G8 (on which points we would refer to our partly dissenting opinion shared by Judges Rozakis, Ziemele and Kalaydjieva), but also in relation to the finding (point 1 of the operative provisions) that the use of lethal force was “absolutely necessary” in the particular circumstances of this case.

1. On the subject of Article 2 of the Convention and the issue whether the fatal shot was justified , we do not doubt the existence of a serious and objective threat to M.P. at the moment he fired the fatal shot. As the photographs and audiovisual footage submitted by the parties show, the jeep with M.P. on board was surrounded by demonstrators who were throwing an assortment of objects and had tried to grab M.P. by the legs in order to pull him out of the vehicle; the possibility of a lynching could not be ruled out. Furthermore, before firing the shots, M.P. had displayed his gun and clearly warned the demonstrators, shouting at them to leave unless they wanted to be killed. Even amidst the confusion reigning around the jeep at the material time, the sight of a loaded weapon, together with the threats uttered by M.P., must have indicated to the demonstrators in no uncertain terms that the carabiniere was prepared to defend his life and/or his physical integrity by using potentially lethal force.

2. Despite this, the applicants ' son decided to continue his assault on the carabinieri vehicle and its occupants, approaching the jeep brandishing a fire extinguisher above his chest, prompting fears that he might use it as a blunt instrument. It could therefore be argued that the applicants ' son bore responsibility for his unlawful action, which triggered the tragic course taken by events (see, mutatis mutandis , Solomou and Others v. Turkey , no. 36832/97, § 48, 24 June 2008); according to this argument, he knew or ought to have known that his action placed him at risk of a response from the vehicle ' s occupants, possibly involving the use of the weapons with which the carabinieri were equipped.

3. There is, however, one factor which run s counter to this interpretation of events and which the Grand Chamber ' s judgment does not take into consideration . When questioned by a representative of the public prosecutor ' s office, M.P. stated that he had not aimed at anyone and that no one had been within his field of vision at the moment he fired the shots. If we are to believe this statement – which was made by M.P. himself and the credibility of which was never called into question by the domestic courts – the implication is that the carabiniere did not see the assailant approaching with a fire extinguisher and did not aim at him. Article 52 of the Italian Criminal Code (“the CC”) states that persons who commit an offence may claim self-defence if they were forced to commit the offence by the need to defend their rights against a real danger. That need implies a subjective perception of the existence of such danger, as demonstrated by the fact that Italian law (Article 55 of the CC) provides for the possibility of prosecuting the perpetrator of the offence for unintentional homicide where he or she, as a result of negligence or of a mistaken but punishable assessment of the situation, overstep s the limits “dictated by necessity”. It would follow that the shots were motivated by M.P. ' s attempts to defend himself not against Carlo Giuliani ' s unlawful action but against the overall danger created by the demonstrators ' attack on the jeep.

4. It remains to be determined whether M.P. ' s reaction was “ proportionate ” to the danger he sought to avert. To that end, establishing the trajectory of the shot fired by M.P. was of decisive importance. While the imminent threat of an object with considerable destructive potential being thrown justifies firing at chest height, an overall state of danger can only justify firing shots into the air (see, in particular, Kallis and Androulla Panayi v. Turkey , no. 45388/99, § 63, 27 October 2009, where the Court stated that the opening of fire should, whenever possible , be preceded by warning shots). If M.P. did not see anyone targeting him directly and individually, his response should have been aimed at dispersing rather than eliminating the assailants.

5. In other words, only the firing of warning shots would be compatible with the requirements of Article 2 of the Convention in its substantive aspect were it to transpire that M.P. ' s “defence” was not justified by the need to halt an attack liable to result in immediate consequences of a serious nature which could not be averted by means of less radical action (the “ real danger of an unjust attack” referred to in Article 52 of the CC). This follows from the test of “absolute necessity”, which dictates that the force used must be strictly proportionate to the aims pursued (see Andronicou and Constantinou v. Cyprus , 9 October 1997, § 171, Reports of Judgments and Decisions 1997 - VI). If methods less dangerous to human life can reasonably be regarded as sufficient to achieve the aim of “defence of any person from unlawful violence” or “for the purpose of quelling a riot”, then those methods must be deployed. Moreover, the Italian Criminal Code (Article 52 in fine ) appears to adopt a similar approach in requiring that the “defensive response [be] proportionate to the attack”.

6. In short, if M.P. was seeking to defend himself against the demonstrators ' assault on the jeep rather than against the applicants ' son individually, it cannot be concluded that there was a serious threat to his person of such imminence that only shots fired at chest height could have averted it. While it is true that the jeep was surrounded by demonstrators and that various objects were being thrown at it, the fact remains, as shown by the photographs in the file, that when M.P. drew his pistol and opened fire no one with the exception of Carlo Giuliani was attacking him directly, individually and at close range. The firing of shots into the air would probably have been enough to disperse the assailants; if not, M.P. would still have had time to defend himself by means of further shots, this time targeting those individuals who, despite the warning shots, chose to continue the attack. It should be borne in mind in that regard that M.P. had an automatic pistol which was loaded with fifteen rounds of ammunition.

7. In the light of the foregoing, and as we have already observed, it was of decisive importance to establish the trajectory of the bullets fired by M.P. On this point, two theories were put forward. According to the first, defended by the applicants, the fatal shot was fired at chest height ; according to the second, supported by the Government and considered more likely by the investigating judge, the bullet was fired upwards and was deflected in the direction of Carlo Giuliani after colliding with an object (probably a stone) thrown by the demonstrators.

8. If we accept the latter version of events , namely that the bullet was fired upwards , any appearance of a violation of Article 2 can be ruled out, on the basis that an unforeseeable and uncontrollable factor turned M.P. ' s w arning action into a fatal shot (see Bakan v. Turkey , no. 50939/99, §§ 52 ‑ 56, 12 June 2007, in which a warning shot fired during a chase ricocheted and accidentally killed the applicants ' relative, prompting the Court to find that the death had been caused by “misadventure”). Even amidst the panic generated by a violent and unexpected attack, law ‑ enforcement officers should be expected to fire warning shots before resorting to lethal force. However, they cannot be deprived of any means of defence by being required to allow for the possibility – statistically unlikely but theoretically always present during clashes between police and demonstrators – that the trajectory of a missile could be deflected following a collision with a flying object.

9. If, on the other hand, M.P. fired at chest height , it would have to be concluded, in our view, that the use of lethal force was not “absolutely necessary” within the meaning of Article 2 of the Convention.

10. In these circumstances it is regrettable that the domestic investigation was unable to establish with certainty whether or not the bullet ricocheted off an object before striking Carlo Giuliani. The investigating judge simply stated that the powerful nature of the weapon and the low resistance of the body tissue through which the bullet had travelled “served to confirm” “the intermediate object theory”.

11. We would observe that the authorities had a number of elements available to them in calculating the trajectory of the fatal bullet: the various forensic medical and ballistics reports; the fact that the bullet had fragmented; the fact that an object is shown on film disintegrating in the air shortly before Carlo Giuliani fell to the ground; the theory advanced by the applicants ' experts according to which the fragmentation of the bullet could have been caused by factors other than collision with a stone; and the photographs taken shortly before and shortly after the fatal shot and during the autopsy.

12. The photograph taken a few moments before the shot shows the gun positioned at chest height (see also point 6 of Judge Bratza ' s partly dissenting opinion, annexed to the Chamber judgment), at an angle compatible with the wound sustained by Carlo Giuliani (according to the autopsy report, the bullet entered the body through the left eye socket and exited through the back of the skull, travelling through the body in a downward direction). Accordingly, although it is not impossible, it is unlikely that (a) M.P. raised his gun just as he fired the shot; (b) the bullet ricocheted off a flying object; (c) the angle of collision between the object and the bullet was such as to make the bullet strike the victim very close to where it would have struck him had the gun not changed position.

13. As regards scenario (b) above, it should be noted that the photographs taken just before the fatal shot do not show any stone or other object hovering in the air. This would seem to indicate that in the moments surrounding the firing of the shots the demonstrators were not engaged in intensive throwing of missiles. That suggests that the statistical probability of any of the three scenarios having occurred is low; the likelihood of all three occurring in rapid succession is smaller still.

14. In terms of the Court ' s case-law, when an applicant adduces prima facie evidence that excessive use was made of lethal force, the onus is on the Government to prove otherwise (see Toğcu v. Turkey , no. 27601/95, § 95, 31 May 2005, and Akkum and Others v. Turkey , no. 21894/93, § 211, ECHR 2005-II). We believe that the same should apply where the Government rely on a statistically unlikely theory in order to counter the applicants ' version of events, which is corroborated by visual evidence; it was for the authorities to prove that the very rare events which they alleged actually occurred. However, no such proof was furnished either at domestic level or before the Court. In her decision to discontinue the proceedings the investigating judge herself observed that the ballistics test s had not succeeded in establishing the initial trajectory of the shot.

15. Finally, it seems to us that the Grand Chamber judgment does not place the events giving rise to this tragic case in their proper context . Proceeding as though the case concerned a situation of individual violence, the Grand Chamber concludes that the use of lethal force was necessary in defence of the person concerned under Article 2 § 2 (a) of the Convention (see paragraph 194 of the judgment). Accordingly, it considers it unnecessary to examine whether the use of force was also unavoidable “in action lawfully taken for the purpose of quelling a riot or insurrection” within the meaning of sub - paragraph (c) of the second paragraph of Article 2 (see paragraph 196 of the judgment). However, that was precisely the crucial issue to be examined in this case.

16. These considerations lead us to the conclusion that there has been a violation of Article 2 of the Convention in its substantive aspect.