JOINT PARTLY DISSENTING OPINION OF JUDGE S CASADEVALL AND GARLICKI

(Translation)

1. In this undoubtedly appalling case, the majority concluded that there had been a violation of Article 2 of the Convention in its procedural aspect. We cannot subscribe to this conclusion.

2. At the outset, we wish to state our partial agreement with the general observation made by our colleague Judge Zagrebelsky as regards the summary of facts in the judgment. This is excessively long and contains background details which are unnecessary, not to say pointless, in terms of the core issues to be resolved in this case.

3. We agree also with the facts and conclusions set forth by the investigating judge on 5 May 2003, in particular as regards the causal link between M.P. ' s shot and the death of Carlo Giuliani and the situation of extreme violence faced by the carabinieri at the scene and in the circumstances of the case, which ruled out any criminal responsibility on M.P. ' s part. The latter made legitimate use of his weapon in order to repel an act of violence or thwart an attempt to resist official authority (the cases contemplated by Article 53 of the Criminal Code); in any event, faced with a situation of extreme violence which directly threatened his physical integrity, he was acting in self-defence (Article 2 § 2 (a) of the Convention).

4. Once it has been accepted that there was no disproportionate use of force (see paragraph 227 of the judgment) or failure to comply with the positive obligation to protect the life of Carlo Giuliani (see paragraph 243), the only remaining question concerns the State ' s procedural obligations. The majority held that there had been a violation of Article 2 in its procedural aspect, basing their conclusion essentially on the following two elements:

(a) the supposedly “superficial” nature of the autopsy report, combined with the finding of a metal fragment lodged in the victim ' s skull and the return of the body to the family for cremation (see paragraphs 247 to 251);

(b) the fact that no investigation at domestic level examined the overall context in order to determine whether the public-order operations had been planned in such a way as to prevent the incident (see paragraphs 252 and 253).

5. On the first point we are of the view that, once it had been established that there was a causal link between the action of the person firing the shot and the effect produced, and that the victim had in fact been killed, no further autopsy was really necessary in order to determine the truth (except possibly as a matter of forensic interest). Carlo Giuliani was killed by M.P., who admitted having fired two shots, in circumstances generated by the sequence of events.

In deciding on the question before us, whatever additional information might have been obtained concerning the metal fragment, the distance from which the shot was fired, its trajectory, the angle of fire or the possible collision with a stone or other intermediate object is of little relevance. Such information, in our view, would have done nothing to alter the key elements of the tragedy: the person who fired the shots, the victim and the cause of death. The victim ' s body was not released to the family until after the autopsy, and it was at their request that the public prosecutor, having no compelling actual or foreseeable reason to refuse such a request, and wishing to avoid prolonging the family ' s distress needlessly, authorised its cremation. The dead man ' s relatives knew that cremation would destroy the body irreversibly and that no further autopsy would be possible.

6. On the second point, we see no connection between a “domestic” investigation aimed at exploring the organisation and management of all the public-order operations surrounding the G8 summit in Genoa and the specific, one-off incident of short duration which took place on Piazza Alimonda on 20 July 2001. The majority acknowledge that the charge ordered by police officer 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 ”, adding that “[t] he events that took place ... could not therefore have been foreseen ... Finally, it should be borne in mind that the incident which led to the death of Carlo Giuliani w as of relatively short duration” (see paragraph 238). Indeed, the incident took place between 5 p.m. and 5.27 p.m. (see paragraphs 17 and 29) and “the circumstances surrounding the death” (see paragraph 252) leave no room for doubt.

7. Accordingly, with the benefit of hindsight, we are of the view that the investigation conducted by the Italian authorities in this regrettable case was adequate and effective and involved the participation of the parties, in line with the State ' s positive obligations, and that no procedural violation of Article 2 of the Convention can be imputed to the respondent State.