PARTLY DISSENTING OPINION OF JUDGE BRATZA JOINED BY JUDGE Å IKUTA

1. I share the view of the majority of the Chamber that there was in the present case a breach of the procedural obligations of the respondent State under Article 2 of the Convention for the reasons given in the judgment. However, I am unable to agree with the majority ' s view that the substantive obligations of the State under that Article were not also violated. In my view the death of Carlo Giuliani was the result of a failure on the part of the national authorities to protect his right to life as required by that Article.

(i) The substantive obligation under Article 2

2. The general principles governing the interpretation and application of Article 2 have been accurately set out in paragraphs 204-213 of the Chamber ' s judgment. I would supplement that summary by underlining two points. First, Article 2 contains, in addition to the prohibition on the use of force which is not absolutely necessary for the achievement of one of the purposes set out in sub-paragraphs (a), (b) or (c) of paragraph 2 of the Article, a positive obligation on the part of the State under the first sentence of that Article to safeguard life. Where lethal force is used in the course of a police or military operation, it is necessary to examine not merely whether the use of force was legitimate but also whether the operation was regulated and organised in such a way as to minimise to the greatest extent possible any risk to the life of the persons involved (see eg, Şimşek and Others v. Turkey , nos. 35072/97 and 37194/97, § 106 , 26 July 2005 ). Secondly, the Court is sensitive to the subsidiary nature of its function and must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. Where domestic proceedings have taken place, it is not the Court ' s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them. Though the Court is not bound by the findings of the domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts. Nonetheless, where allegations are made under Articles 2 and 3 of the Convention, the Court must apply a particularly thorough scrutiny even if certain domestic proceedings and investigations have already taken place ( Şimşek and Others v. Turkey , cited above, § 102).

3. The Government, relying on the factual findings of the public prosecutor and of the investigating judge, contend that no substantive breach of Article 2 has been made out. It is argued in the first place that there was no causal connection between the shot fired by M.P. and the death of Carlo Giuliani since it was as a result of a wholly exceptional and unforeseeable circumstance that the bullet struck the victim. The death, it is said, was not the result of an intentional and direct use of potentially lethal force on the part of M.P.: M.P. had fired in the air and the chain of causation between the act and the effect was broken by the unforeseeable and uncontrollable impact of the bullet with a stone, which altered the trajectory of the bullet. It is argued, secondly, that even if there existed any causal link and the responsibility of the State was accordingly engaged, the use of lethal force was “absolutely necessary” and “proportionate” in the defence of the occupants of the jeep from unlawful violence. Thirdly, it is contended that there was no failure on the part of the national authorities to safeguard the right to life of Carlo Giuliani in consequence of a lack of adequate planning of the operations which culminated in his death, the authorities having done everything in their power to prevent the peaceful demonstration from degenerating into violence.

4. The question whether the chain of causation was broken was explicitly examined by the public prosecutor. He expressly rejected the theory, holding that the impact of the bullet on the stone was not such as to interrupt the causal link between M.P. ' s act and Carlo Giuliani ' s death, the real question being whether M.P. acted in legitimate self-defence (judgment, § 83). The investigating judge did not address herself to this theory. Although she referred in her decision to the deflection of the bullet as being a “wholly unforeseeable event” and to the death of Carlo Giuliani as resulting from “a tragic turn of events”, it is clear from the context that the judge was not suggesting any break in the chain of causation but was rather addressing herself to the questions whether the requirements of Article 53 of the Criminal Code had been complied with and whether M.P. ' s use of the firearm was in the particular circumstances of the case a necessary and proportionate response.

5. Whether or not the Government ' s submission finds support in the investigating judge ' s reasoning, I am wholly unable to accept the argument that the alteration of the trajectory of the bullet as a result of striking a stone or some other solid object was such as to break the chain of causation and thereby relieve the State of responsibility for the death. In order to break a chain of causation, the intervening cause must in my view be so powerful and so unexpected that the conduct of the person concerned cannot be seen as a cause at all but at most as part of the surrounding circumstances. Where the intervening factor could reasonably be foreseen, it cannot of itself be regarded as a novus actus interveniens breaking the chain of causation and isolating the initial act from the final result.

6. The circumstances of the present case are, in my view very far from those of a true novus actus . The act of M.P. in drawing and firing a loaded pistol was an inherently dangerous act. M.P. was crouched on the floor of the jeep; the jeep was encircled by a mob of protesters who were pelting the vehicle with stones and other missiles and who were sufficiently close to the jeep to be able to thrust a plank and a fire-extinguisher through the broken rear window and to injure M.P.; M.P. ' s visibility from the back of the jeep was obscured: according to his own account, M.P. was aware that “hundreds of protesters” were encircling the jeep but at the moment when he fired he had no one in sight and had not noticed the presence of Carlo Giuliani behind the jeep, either before or after firing; it is also clear from the contemporary photographs that at some stage M.P. was pointing the pistol horizontally towards the protesters to ward off the aggressors. Even if, as was found by the domestic tribunals, the gun was pointing upwards at the point when M.P. fired, there was as the investigating judge found at least a risk that the bullet would hit someone present at the scene. It was also in my view clearly foreseeable that, even if the bullet did not strike one of the protesters directly, it could ricochet off one of the missiles being thrown or brandished by the protesters and cause death or serious injury. The applicants continue to maintain that the bullet never struck a stone and that the photographic and other evidence shows that, so far from firing in the air, M.P. fired directly towards Carlo Giuliani and in a downward direction. However, even accepting the facts as found by the public prosecutor and the investigating judge, the deflection of the bullet as a result of striking a stone cannot in the circumstances be regarded as such an extraordinary and unforeseeable an event as to break the chain of causation.

7. It was the view of the investigating judge not only that the use of a weapon by M.P. was justified under Article 53 of the Penal Code as being necessary to repel acts of violence but that the death of Carlo Giuliani resulted from a legitimate act of self-defence or the defence of another under Article 52 of the Code, the firing of the gun being both “necessary” and “proportionate” to the threat posed. The applicants argue that the findings of the investigating judge provide no solid basis on which to conclude that the requirements of Article 2 § 2 of the Convention were complied with: it is argued that the standards set for the use of firearms by Article 53 of the Criminal Code - a provision which dates back to the 1930s - do not correspond to the accepted modern international standards, in particular the United Nations Basic Principles on the use of Force and Firearms by Law Enforcement Officials to which the Court has referred in its previous case-law; nor, it is said, do the concepts of “necessity” and “proportionality” in Article 52 of the Code correspond to that of “no more than absolutely necessary” in Article 2 § 2 itself or to the terms “strictly unavoidable in order to protect life” or “strictly proportionate” used in the Court ' s case-law under that Article. Reliance is also placed on the deficiencies in the investigation itself which have been examined in the context of the procedural obligations of the State under Article 2. The applicants further challenge, in any event, the conclusion of the investigating judge that the action of M.P. was a legitimate act of self-defence, arguing that in the circumstances of the case the occupants of the jeep were not in mortal danger so as to justify the use of lethal force. It is said that the occupants were in a sturdy vehicle and had the protection of a shield, bullet-proof vests and protective helmets, that there was a relatively small number of demonstrators who were not armed with lethal weapons, that the injuries to M.P. and D.R. were not serious and that numerous other police and carabinieri were in the immediate vicinity of the jeep and able to provide assistance if necessary.

8. I am not persuaded that the Court should reject or treat with caution the findings of the investigating judge on either of the grounds invoked by the applicants. As the Court has previously held, the Convention does not oblige Contracting Parties to incorporate its provisions into national law and it is not the role of the Court to examine in abstracto the compatibility of national legislative or constitutional provisions with the requirements of the Convention (see McCann and Others v. the United Kingdom , 27 September 1995, § 153, Series A no. 324). While the relevant Convention standard of “no more than absolutely necessary” in Article 2 § 2 appears on its face to be stricter than the relevant national standard, I do not find the difference between the standards to be of significance in the present case. On a fair reading of the decision of the investigating judge, it is clear that a strict test of necessity was applied, the judge concluding not only that the use of a firearm was on the facts of the case “absolutely essential” but that firing the gun was proportionate in the circumstances of the case, being the only means available to M.P. to defend himself and his colleague against the acts of extreme violence directed against them and that, by firing in the air, he had endeavoured to reduce to the minimum any harm caused to the aggressors.

9. It is true that there were deficiencies in the measures of investigation which resulted in the decision to close the criminal inquiry involving M.P. and F.C. and which have been found by the majority of the Court to have given rise to a breach of the State ' s procedural obligations under Article 2. Despite these deficiencies, the examination by the public prosecutor and the investigating judge of the circumstances in which M.P. fired the gun appears to have been thorough. In particular, both the prosecutor and the judge examined in detail the evidence before them, both eyewitness and expert, before concluding that M.P. had acted in legitimate self-defence. Moreover, the investigating judge gave full reasons for rejecting not only the applicants ' alternative account of how the bullet came to strike Carlo Giuliani but their request for supplementary evidence to be obtained.

10. The question remains whether the conclusion of the domestic judicial authorities that M.P. acted in legitimate self-defence is one which can be justified on the basis of the material before the Court. The applicants ' argument that it has not been objectively shown that the occupants of the jeep were in mortal danger from the protesters, and that consequently M.P. cannot be said to have acted in legitimate self-defence, is in my view to impose too strict a standard. It is well-established by the Court ' s case-law that the question whether the use of force was no more than absolutely necessary in defence of any person from unlawful violence must be judged in the light not just of the situation as a whole but of the subjective perception of the person using the lethal force at the time of its use. Thus, the use of force in pursuit of one of the aims delineated in Article 2 § 2 of the Convention may be justified under this provision where it is based on an honest belief, which is perceived, for good reasons, to be valid at the time but which subsequently turns out to be mistaken. To hold otherwise “would be to impose an unrealistic burden on the State and its law enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and those of others” ( McCann and Others , cited above, § 200; Bubbins v. the United Kingdom , no. 50196/99, § 138 to 140 , ECHR 2005 ‑ II ). In the same vein, the Court has held that it cannot substitute its own assessment of the situation for that of a law-enforcement officer who is required to react in the heat of the moment to avert a danger to his own life or the lives of others.

11. Notwithstanding the various factors relied on by the applicants as casting doubt on the reality and gravity of the danger faced by the occupants of the jeep, I find no reason to question the finding of the domestic judicial authorities that M.P. ' s perception that his life and that of D.R. were at risk was founded on good grounds and that his action in firing his weapon did not of itself give rise to a violation of Article 2. I can also accept the view of both the public prosecutor and the investigating judge, reached on the basis of the material before them, including the autopsy report, that the reversal of the jeep by F.C. over Carlo Giuliani ' s body did not cause any internal injuries and was not a factor in his death, which resulted exclusively from the bullet wound to his head.

12. There remains, however, the question whether the organisation and control of the operations which led to the situation of crisis in which MP found himself and in which he had resort to lethal force respected the requirements of Article 2 to protect the right to life (see McCann and Others as before, cited above, §§ 200 to 201). It is on this question that I part company with the majority of the Court. It is also a question on which the investigations by the public prosecutor and the investigating judge, confined as they were to an examination of the criminal liability of M.P. and F.C., offer little assistance. Neither examined in any detail either the overall planning of the security operations or the particular operation which more immediately led up to the stranding of M.P. ' s jeep in the Piazza Ali monda which resulted in Carlo Giuliani ' s death. The applicants make strong criticisms of both aspects. Of the overall planning, particular criticism is directed at a number of elements: the modification of the plans made on 19 July 2001, the eve of the events, which appear to have replaced an essentially static role for the carabinieri with a dynamic role and which were only communicated orally to the senior officers, including Mr Lauro, who only learned of the change on the morning of 20 July; the fact that the carabinieri had not been adequately informed of the further change in the service order of 19 July 2001 to authorise the procession of the Tute b ianche ; the selection and training of the personnel, it being argued that the carabinieri were commanded by persons experienced as international military police in foreign locations but with no experience of maintaining and restoring public order; the choice of weapons for the carabinier i, who were armed with firearms containing lead rather than rubber bullets; and the communication system chosen, which allowed communication only with the command centres of the police and the carabinieri and did not permit direct radio contact between the police and the carabinieri themselves. The Government argue that any errors or malfunctions which might have existed in the planning, direction or conduct of the security operations could not be regarded as having any direct effect on the origin of the dramatic events which unfolded in the Piazza Ali monda. I have considerable doubt whether this is so, at least as regards the failure adequately to inform the carabinieri on the ground of the authorisation of the Tute b ianche procession. But even if it could be said that the overall planning of the security operation as a whole had no direct impact on the events leading to the death of Carlo Giuliani, the same cannot in my view be said of the direction and control of the events which immediately preceded the stranding of the jeep in the Piazza.

13. Light has been thrown on these events by the evidence given at “the trial of the twenty five” and by the judgment of the Genoa court of 13 March 2008 in that case. In summary, the following facts emerge from the material before the Court, including that judgment.

(i) At about 14.50 hours the Tute bianche procession arrived in Via Tolemaide. Shortly afterwards, the Lombardia batallion of the carabinieri attacked the procession, using tear-gas and truncheons, apparently unaware that the procession had been authorised by the modified service order of the previous day. The protesters reacted to the attack and began to throw glass bottles and refuse bins at the security forces. Armoured cars were driven at speed by the carabinieri , smashing down the barricades which had been erected by the protesters. Shortly before 15.30, the centre of operations ordered the carabinieri to withdraw and to let the Tute bianche procession pass. Certain protesters organised a violent counter-attack, setting fire to one of the armoured cars. In the judgment of the Genoa court, the conduct of the carabinieri until 15.30 had been both illegal and arbitrary and had justified the resistance shown by the protesters. However, once the carabinieri had withdrawn, the court found that the behaviour of the protesters could not be justified since the illegal and arbitrary attack by the carabinieri had ceased. Consequently, even if the protesters retained a sense of grievance at having been victims of abuse and injustice, their behaviour could in the view of the court no longer be regarded as defensive but was to be seen as motivated by a desire for revenge.

(ii) During these events, a contingent of the Echo Unit to which M.P. belonged had, after confronting protesters, withdrawn to the comparative calm of Piazza Ali monda and had there regrouped. The contingent was at some stage joined by the two Defender jeeps, one assigned to the Echo Unit and one to Lieutenant-Colonel Truglio. Neither jeep was armour-plated or had a protective grille over the rear side windows or the rear windscreen. According to the Government, the Echo Unit jeep driven by F.C. was not employed in public order operations for which armoured cars of a different type were used but was employed solely to provide logistical support and, according to the submissions of the Government, had been sent to the Piazza to remove M.P. and D.R., who had become ill owing to their prolonged exposure to tear-gas fumes. Captain Cappello authorised M.P. and D.R. to climb into the Echo Unit jeep. According to the uncontested evidence, M.P. was not only young and inexperienced, having seen some 10 months of service as an auxiliary carabiniere but he was suffering from the effects of tear-gas, showed signs of intolerance of the tear-gas mask, had difficulty in breathing and was in a highly nervous state. He was, in the view of Captain Cappello, no longer in a fit state to carry on, “at rock bottom” psychologically and “burnt out”. Captain Cappello removed the tear-gas launcher and bag of tear-gas canisters from MP but did not remove his firearm or his ammunition. Despite his breathing difficulties and nervous state, M.P. was not taken for medical treatment even though, in the Government ' s submissions, this was the avowed purpose of sending the jeep to the Piazza. M.P. himself said that he could not understand why he had not been taken to hospital. Instead, he remained in the rear of the jeep with D.R., who was also found to be suffering from nervous tension and the effects of tear-gas.

(iii) At about 17.20 hours, the contingent of the Echo Unit, which was made up of between 50 and 100 men, was ordered by Mr Lauro to proceed up Via Caffa to Via Tolemaide to assist in confronting certain protesters who had taken up a very aggressive stance and who had placed refuse bins at the junction of Via Caffa. Captain Cappello subsequently stated that he had been perplexed by this order, having regard to the number and state of exhaustion of the men at his disposal and the total lack of armoured cars to provide protection for his men. This, as the applicants point out, is difficult to reconcile with Mr Lauro ' s statement that, before advancing towards Via Tolemaide, he had asked Captain Cappello if his men were in a fit state to face the situation and had received an affirmative response.

(iv) The two Defender jeeps, one still containing M.P. and D.R., followed the members of the Unit as they proceeded up Via Caffa on foot, wearing gas-masks and carrying riot shields. It is unclear who, if anyone, gave an order for this to occur. F.C., the driver of the Echo Unit jeep stated at the trial of the twenty-five that his task had been to “close off the lines of their colleagues on foot”. Sub-Lieutenant Zappia, the deputy of Captain Cappello, gave evidence that the two Defenders had moved in unison to avoid being left alone and that instructions were taken from Captain Cappello and Mr Lauro who remained in front of the contingent. However both Mr Lauro and Captain Cappello denied having ever realised that the jeeps were following the Unit. Mr Lauro stated that the jeeps should not have been there. Captain Cappello stated that, if he had realised that the jeeps were following, he would have “sent them away in no uncertain terms”: they had, according to him, no instructions from him to follow the moving contingent “because... it would have been suicidal” since any vehicle moving with a contingent had to be an armoured vehicle to provide the necessary support. M.P. himself stated that he did not understand why the jeep had followed the contingent from the Echo Unit rather than taking him to hospital.

(v) The contingent came under heavy counter-attack from the protesters in Via Tolemaide who were behind a barrier of containers and who were hurling stones and other missiles at the carabinieri . The contingent was forced to retreat in a disorderly manner to Piazza Ali monda leaving the two jeeps exposed and without protection. The jeeps reversed and, when trying to effect a U-turn and make an escape, the jeep driven by F.C. collided with, and became trapped by, an overturned refuse container and the engine stalled. The jeep was immediately followed and surrounded by protesters who attacked the two occupants in the rear, armed with stones, sticks, iron bars and other implements. It is unclear where the remainder of members of the contingent were while the assault on the jeep which led to the death of Carlo Giuliani was taking place. The Government assert that at the time of the events in question there were approximately 50 carabinieri at a distance of some 150 metres from the jeep and a “flying squad” of the Polizia dello Stato positioned in Piazza Tommaseo at a distance of about 250 metres. It is also said that no calls for assistance had been made to the operations room. This information is disputed by the applicants, who claim that, according to the photographic evidence and the summary information report, Lieutenant Truglio was about 10 metres from Piazza Ali monda and the rest of the Echo Unit of about 100 men was slightly further away, a view supported by Lieutenant Mirante and Sub-Lieutenant Zappia at the trial of the twenty-five who estimated that the Defenders were 30 and 20 metres respectively away from them. What is clear and undisputed is that no steps were taken by the members of the Echo Unit or by the police to come to the aid of the Defender which was under a violent attack and which contained two disabled and vulnerable persons crouched in the rear and where there was a real risk of loss of life to the carabinieri themselves, or to the protesters if the carabinieri were compelled to have recourse to firearms in self-defence.

14. The majority of the Chamber accept that the handling of the operations by the national authorities gave rise to a number of questions, the answers to which were not provided by the inquiry at national level or by the other material before the Court. It is, however, the view of the majority that account must be taken of the fact that the events in question occurred within a short space of time and at the end of a long day of operations to maintain public order, during which the law-enforcement agencies had been confronted with rapidly unfolding and dangerous situations and had been operating under great strain. It is further said that the charge on the protesters ordered by Mr. Lauro resulted from an operational decision which was justified and was linked to a perception of the risks based on the way in which the situation was developing and that the events in Piazza Ali monda could not have been foreseen. More generally, it is argued that, given that no domestic investigation was conducted in this respect, it is not possible to establish the existence of a direct and immediate link between the shortcomings that may have affected the preparation and conduct of the public-order operation and the death of Carlo Giuliani.

15. I do not question whether the decision to use the Echo Unit to charge the protesters was operationally justified. What is, however, open to serious question is the fact that the two Defenders, one of which contained a carabinie re who was armed and physically and emotionally disabled , were permitted to follow the Unit and take part in an operation for which they were evidently not equipped. While the precise events which ensued in the Piazza Ali monda may not have been foreseen, it was in my view eminently foreseeable that, in the highly-charged situation which prevailed at that time and place, the life of the occupants of the jeep or of the protesters was put at risk. For the same reason, even though the Court has regrettably been deprived of the benefit of the findings of an effective domestic investigation into the events leading up to the death, I cannot accept that no link can be established between the shortcomings in the control and direction of the events which immediately preceded the stranding of the Defender and the death of Carlo Giuliani.

16. As to the first consideration relied on by the majority of the Court, I am very conscious of the acute difficulties faced by the national authorities in the planning and conduct of a major security operation at the G8 Summit, which was the scene of acts of serious disorder and extreme violence. I also bear well in mind the admonition of the Government against substituting one ' s own view as to the proper handling of the operation for that of the responsible officials on the spot, as well as the dangers of being guided by the wisdom of hindsight. Nevertheless, making every allowance for the problems faced by the authorities, the circumstances described reveal in my view a serious and disturbing lack of coordination and effective control over the security operations in the afternoon of 20 July 2001 which were the direct cause of the situation where M.P., a young and inexperienced carabinieri , who was injured, unprotected and in a state of panic, had resort to lethal force resulting in the tragic loss of life. These failings on the part of those responsible for the planning and control of the operations amounted in my view to a failure to safeguard the right to life of Carlo Giuliani in violation of the substantive aspects of Article 2 of the Convention.

(ii) The procedural obligation under Article 2

17. The Government lay emphasis on the fact that, since any errors or failings in the planning and conduct of the operations had no direct impact on the origin of the events in Piazza Ali monda, it had been superfluous and outside the competence of the judicial authorities in Italy, when examining the criminal responsibility of M.P. and F.C., to extend their inquiries to the higher authorities of the police or to assess the responsibility of other persons. For the reasons given above, I am not persuaded that the errors and deficiencies in the conduct of the operations were not closely connected with the events which resulted in the death of Carlo Giuliani. The procedural obligations of the State under Article 2 require that the actions of agents of the State which have resulted in the use of lethal force should be subjected to some form of independent and public scrutiny capable of determining whether the force used was justified in a particular set of circumstances. Where necessary, the investigation must also be capable of considering any systemic failures that might have led to the death as, for example, in the planning of police operations (see McCann and Others and ÅžimÅŸek and Others , both cited above). In the particular context of the present case, I consider that Article 2 required an effective investigation not merely into the potential criminal responsibility of M.P. or F.C. but into the planning and conduct of the operations leading up to the death, thereby ensuring the full accountability of the State officials for the circumstances which resulted in the loss of life. Since no such investigation was conducted there was, as the majority of the Court has held, a violation of the procedural requirements of Article 2 on this additional ground.

18. Having reached this view, I have not found it necessary to examine separately the complaint of the applicants under Articles 6 and 13 of the Convention. Moreover, I share the view of the Chamber as a whole that there has not been a failure on the part of the respondent State to comply with its obligations under Article 38 of the Convention.