PARTLY DISSENTING OPINION OF JUDGE ZAGREBELSKY

(Translation)

I regret that I am unable to share the opinion of the majority of the Chamber in finding a violation of Article 2 of the Convention in its procedural aspect.

1. I will explain my dissenting opinion below; however, one general preliminary remark needs to be made concerning the judgment as a whole and the facts part in particular. In my view, the summary of facts enters into details of the background to the case which, as the Court itself is aware, serve no purpose in terms of the issues to be addressed (see paragraph 235). It describes and assesses events which are highly controversial at the national level and on which the domestic courts have not yet given final judgment. The risk that the Court ' s judgment will be read in a partisan manner in order to fuel the tensions which still surround the events in question in Italy cannot be ruled out, and is indeed heightened by the delayed delivery of the Court ' s ruling (seven years after the application was lodged).

2. I share the opinion of the majority of the Chamber in finding that there has been no violation of Article 2 of the Convention in its substantive aspect. In my opinion, there is no reason to depart from the findings of the judgment given at the close of an investigation which did everything that could be done to shed light on the events in question.

The judge, on the basis of the report by the panel of experts and the other evidence at her disposal (video footage, witness statements), accepted that the shot had been fired upwards and that the bullet had been deflected following a collision with a stone or similar object.

It seems to me that, in the context of the violent attack to which he and his colleagues were being subjected, the person who fired the shot reacted in a manner justified in terms of Article 2 § 2 (a) of the Convention.

There can be no doubt but that the attack was very serious and must have appeared extremely serious to the occupants of the jeep, which was surrounded by several demonstrators who were armed with sticks, beams and stones and had broken the vehicle ' s windows. One of the assailants thrust a wooden plank into the jeep and injured the carabiniere next to the officer who fired the shots. The jeep ' s occupants were unable to move inside the vehicle. Shortly beforehand, an armoured vehicle belonging to the carabinieri had been set on fire by demonstrators. The fear of being lynched was, in the circumstances, entirely reasonable.

In this specific situation – which occurred suddenly and was extremely serious – the officer reacted by firing two shots in an upward direction; only an exceptional and unlikely twist of fate caused the bullet to be deflected. We must of course take into consideration the unforeseeable anomaly in the bullet ' s trajectory (and the fatal consequences of the shot which ricocheted and hit the victim), while acknowledging that this anomaly does not negate the causal link.

Can shots fired in order to intimidate be assimilated with the use of force within the meaning of Article 2 § 2 (a) of the Convention? In any event, it is clear that the nature of the shots, viewed in terms of their necessity and the legitimate aim pursued, must be taken into account.

In its judgment in Bakan v. Turkey ( no. 50939/99, § § 55-56 , 12 June 2007 ), the Court ruled out a violation of Article 2 of the Convention, taking account of the fact that the death of the victim, who was killed by a gendarme ' s bullet, “[had been] the result of a stroke of misfortune, as the bullet which caused the fatal injury ricocheted and hit the victim” (see also, mutatis mutandis, Kathleen Stewart v. the United Kingdom , no. 10044/82, Commission decision of 10 July 1984, Decisions and Reports 39).

Wisdom and caution normally lead the Court to adopt a realistic yardstick and to state that the legitimacy of the use of force must be assessed in the light of the situation as it appeared to the protagonists, who were reacting in the heat of the moment to avert an honestly perceived danger to their lives or the lives of others, even if the situation might subsequently be assessed differently. For the Court t o 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 (see Bubbins v. the United Kingdom , no. 50196/99, § § 138 ‑ 40 , ECHR 2005 ‑ II ; McCann and Others v. the United Kingdom , 27 September 1995, § 200 , Series A no. 324 ; Makaratzis v. Greece [GC], no. 50385/99, § 66 , ECHR 2004 ‑ XI ; and Huohvanainen v. Finland , no. 57389/00, § § 96 ‑ 97 , 13 March 2007 ).

3. The G8 summit in Genoa witnessed on the one hand a peaceful and lawful demonstration on an impressive scale and, on the other hand, acts of extreme violence against persons and property organised by numerous groups armed with a wide variety of objects. The fact that the demonstrations and the violent acts became intermingled made it extremely difficult, if not impossible, to manage the public-order situation in an orderly and planned manner.

The majority themselves accept 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 ”, that “ the law - enforcement agencies had been confronted with rapidly unfolding and dangerous situations and had been required to make crucial operational decisions ”, that “[t] he events that took place on Piazza Alimonda could not ... have been foreseen ” and that “ the incident which led to the death of Carlo Giuliani was of relatively short duration ” (see paragraph 238 of the judgment). It is hard, therefore, to see the relevance of questions relating to the organisation, planning and management of the public-order operations conducted prior to the events in issue (see paragraph 235). This is particularly true if we take into consideration, as we must, the congestion and violence in the area, the priorities established by those in charge of the operations and the unforeseeable nature of the sudden incident.

As far as the events as they occurred are concerned, what matters are the actions of the person who fired the shot in the context of the moment.

Furthermore, the Court has held on several occasions that “[b] earing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the positive obligation must be interpreted in a way which does not impose an impossible burden on the authorities ” (see, among other authorities, Makaratzis , cited above, § 69).

The Court ' s case-law provides a wealth of examples where the Court found shortcomings or errors in the planning and management of the actions of the law-enforcement agencies and found a violation of Article 2 for that reason alone. The case-law shows that the State ' s responsibility may be engaged even in cases where the ultimate action by the agent resulting in a loss of life is not open to criticism. That being said, it is perfectly clear that the particular circumstances of each case are different and that the relevant case-law must be applied discerningly. One needs only to compare the present case with those examined by the Court in McCann and Others (cited above); Andronicou and Constantinou v. Cyprus ( 9 October 1997, Reports of Judgments and Decisions 1997 ‑ VI ); Makaratzis (cited above); Nachova and Others v. Bulgaria ( [GC], nos. 43577/98 and 43579/98, ECHR 2005 ‑ VII ); ÅžimÅŸek and Others v. Turkey ( nos. 35072/97 and 37194/97, 26 July 2005 ); and ErdoÄŸan and Others v. Turkey ( no. 19807/92, 25 April 2006 ).

In the instant case, the background to and cause of the shots fired by the carabiniere lie solely in the attack perpetrated by the group of demonstrators, of whom the victim himself was one. This leads me to conclude that it would be unjustified to base a finding of a substantive violation of Article 2 on a critical assessment of the authorities ' conduct at one or other point during the events which characterised the demonstrations against the G8 summit in Genoa . In the light of what has been accepted by the majority (see paragraph 238), the only factors which appear to me to be relevant in the present case are the context provided by the violent attack, the actions of the person who fired the shot and the consequences thereof.

4. The position I believe to be correct when it comes to examining the complaint concerning Article 2 in its substantive aspect leads into a parallel discussion on the question of the shortcoming in the domestic investigation found by the majority on account of the fact that “[a] t no point was any attempt made to examine the overall context and consider whether the authorities had planned and managed the public-order operation in such a way as to prevent incidents of the kind that caused the death of Carlo Giuliani ”. In particular, the majority found that the investigation “... made no attempt to establish why M.P. – whom his superior officers had considered unfit to continue on duty owing to his physical and mental state ... – had not been taken straight to hospital, had been left in possession of a loaded pistol and had been placed in a jeep which had no protection and which was cut off from the contingent it had been following ” (see paragraph 252 of the judgment).

Firstly, it seems to me that the investigation conducted by the Genoa public prosecutor ' s office did indeed consider the factors leading up to the firing of the shots. Hence, the investigation extended well beyond the mere material fact of the pistol shots and the immediate context in which they were fired (a fact borne out by the documents gathered during the investigation, the content of the witness statements and the summary of facts set forth in the public prosecutor ' s request and in the judge ' s decision). This is even more true in the case of the “trial of the twenty-five”.

Secondly, for the reasons already expounded in relation to the substantive aspect of Article 2, the effectiveness of the investigation as regards Carlo Giuliani ' s death in no way suffered on this account, as the facts set out in paragraph 252 of the judgment do not concern the question whether the taking of the victim ' s life was justified in terms of the second paragraph of Article 2 of the Convention. The answer to that question is provided by the majority in paragraph 238.

5. According to the majority ' s reasoning, a further shortcoming in the investigation justified the finding that there had been a violation of Article 2 in its procedural aspect. This was the “superficial nature” of the autopsy, the untimely cremation of the body and the excessively short notice given to the applicants ahead of the autopsy examination.

As regards the last remark (see paragraph 248), it appears to me to overlook the fact that autopsy examinations are by their very nature urgent and thus leave the public prosecutor ' s office, the accused and the injured parties very little time to appoint experts. In any case, there was nothing to prevent the applicants from appointing an expert, making contact with the experts appointed by the public prosecutor and seeing the body in the hours that followed, before having the body cremated (the cremation was authorised on 23 July, that is, two days after the autopsy). Accordingly, it was not made unduly difficult or impossible for the applicants to attend the experts ' examinations.

Following the autopsy the body was handed over to the family and, at the latter ' s request, the public prosecutor ' s office authorised its cremation. The majority are of the opinion that the public prosecutor should not have given such authorisation “ well before the results of the autopsy examination were known, and despite the fact that on the previous day he had given the experts sixty days in which to submit their report . This is particularly so since he himself described the autopsy report as ' superficial ' ” (see paragraph 250).

At the time when the public prosecutor released the body to the victim ' s family and authorised its cremation, none of the factors which became apparent subsequently was present or foreseeable (and certainly not the “superficial nature” of the experts ' report, which had not yet been written). Moreover, if the experts do not indicate that they still need the body, it is the consistent and sensible practice to spare the family the added ordeal of a prolonged wait.

Whatever regrets one may have with hindsight, they do not provide sufficient basis, in my view, for criticising persons who at the time held the reasonable belief that they could and should respond favourably to the family ' s request. When it comes to assessing the material facts underlying an application, and also as regards judicial decisions on procedural matters, the context to be taken into consideration is that which prevailed at the moment the decision was (had to be) taken (see, mutatis mutandis, R.K. and A.K. v. the United Kingdom , no. 38000/05, § 36 , 30 September 2008 ).

I will turn next to the question of the “superficial nature” of the autopsy and the autopsy report. The public prosecutor mentioned this in his request, without giving further details, in order to explain the time taken by the investigation (since the public prosecutor ' s office had to order another expert report by a panel of experts); it is clearly a reference to the fact that the experts had not recovered the piece of bullet casing which showed up on the scan, lodged in the victim ' s skull. The expert Mr Salvi provided an explanation in that regard, and the judgment of the Genoa District Court in the “trial of the twenty-five” took note of it (see p. 389). The expert saw the metal fragment on the scanned images and took the view that it was not the bullet itself but a very small fragment, which he considered would be very difficult to extract from the brain tissue and would serve no purpose in terms of the ballistic analysis. This explanation may appear unsatisfactory with hindsight, in view of the importance of the fact that the bullet ' s casing had fragmented and that some of the debris of the casing, found in the victim ' s balaclava, showed traces of a collision with an intermediate object, giving rise to the theory that the shot had been deflected. One can understand why the different sets of experts may have taken a cautious stance and expressed regret that the corpse had not been available for their examination; however, that does not mean that the investigation as a whole was impaired as a result. The piece of casing that was not recovered could merely have confirmed the theory that the bullet had collided with an intermediate object (had traces of such a collision been present); in no circumstances could it have disproved the theory (had no such traces been found).

All the evidence that was relevant and useful in order to assess the course of events and who may have been responsible for the victim ' s death was sought and examined, as far as this was possible, during the investigation. The investigation overall should therefore be deemed, in my view, to satisfy the procedural obligations arising out of Article 2 of the Convention.

[1] Original in bold type.