THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
142. The applicants complained that Carlo Giuliani had been killed by the law-enforcement agencies and that the authorities had not safeguarded his life or conducted an effective investigation into his death. They relied on Article 2 of the Convention, which provides:
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
A. The parties’ submissions
1. The applicants
(a) The substantive aspect of Article 2 of the Convention
143. Referring to the Court’s case-law (in particular, Simsek v. Turkey, nos. 35072/97 and 37194/97, 26 July 2005; Sergey Shevchenko v. Ukraine, no. 32478/02, 4 April 2006; and Erdogan and Others v. Turkey, no. 19807/92, 25 April 2006), the applicants submitted that the Court had the power to take into consideration all the material in the case file in assessing whether there had been a violation of Article 2 of the Convention. Accordingly, it could arrive at conclusions which differed from those of the domestic decisions. The applicants therefore requested the Court not to confine its examination to the findings of the domestic criminal investigation.
144. The applicants considered that M.P.’s actions engaged the responsibility of the State, and asserted the existence of a causal link between the shot fired by M.P. and the death of Carlo Giuliani. In their view, the Court should base its findings on the conclusions of the autopsy, according to which M.P. had fired downwards and had struck the victim.
145. As to the “stone theory”, the applicants observed that they had never subscribed to it. They referred in that regard to the objection they had lodged against the request to discontinue the proceedings and to the record of the hearing before the investigating judge. They also referred to the opinion of their expert, Mr Gentile, who had stated in his expert report that the bullet had not fragmented on contact with the victim’s body; however, without having the bullet and without knowing the shape, dimensions or mass of the “intermediate target”, it was impossible, in his view, to put forward a scientific theory as to the nature of the “accident” sustained by the bullet during its trajectory and to maintain that it had been deflected. Furthermore, the other experts instructed by the applicants to reconstruct the events had ruled out the possibility that “the stone” had broken up after colliding with the bullet fired by M.P.; in their view, it had fragmented on hitting the jeep.
146. The applicants further alleged that the lives of the jeep’s occupants had not been in danger, since the vehicle in question had been a Defender jeep which, although not armoured, was sufficiently robust. Furthermore, the number of demonstrators seen on the images was not more than a dozen or so. The demonstrators had not had lethal weapons. In addition, the images showed clearly that the demonstrators had not surrounded the jeep; there were no demonstrators to the left of the vehicle or in front of it. The photographs proved that there had been a riot shield on board the jeep. M.P. had been wearing a bullet proof vest and had two helmets at his disposal. Finally, there had been other law-enforcement officers nearby. As to the injuries sustained by M.P. and D.R., the applicants contended that there was no proof that they had been sustained during the events.
147. In the applicants’ view, there had been disproportionate use of force in the instant case. This was borne out by the following elements: M.P. had fired downwards according to the autopsy report and what could be deduced from his own statements. He had never claimed to have fired upwards and had said that he could not see Carlo Giuliani when he had fired the shot. In the applicants’ submission, that meant that he had admitted firing at chest height and that he had not fired in order to counter an unlawful attack by Carlo Giuliani. Furthermore, M.P. had not issued a clear warning of his intention to use the firearm. The images in the file showed that the pistol was being held horizontally and pointing downwards. The applicants next observed that some of the photographs taken at the time of the events showed a carabinieri shield being used as protection in place of one of the jeep’s broken windows. Lastly, the fact that the carabinieri had been issued with live ammunition lent support to the argument that excessive force had been used. The responsibility of the State was therefore engaged in respect of M.P.’s actions.
148. The applicants considered that the responsibility of the State was also engaged on account of the shortcomings in the planning, organisation and management of the public-order operation and failings in the regulatory framework.
149. In the applicants’ submission, a first problem arose by virtue of the fact that the law-enforcement agencies had not had the benefit of an appropriate set of rules established by domestic law and practice. The domestic law had made the use of a firearm inevitable, as demonstrated by the fact that the proceedings had been discontinued because M.P.’s actions came within the scope of Articles 52 and 53 of the Criminal Code. The applicants alleged that the domestic law on the use of weapons by the law enforcement agencies was inappropriate and outdated and did not conform to international standards. They argued that, in the light of the Court’s case law (they referred to Erdogan and Others, cited above; Tzekov v. Bulgaria, no. 45500/99, 23 February 2006; Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, ECHR 2005 VII; and Makaratzis v. Greece [GC], no. 50385/99, ECHR 2004 XI), an inadequate set of rules (both legislative and administrative) lowered the level of statutory protection of the right to life afforded as a requirement of a democratic society; in the instant case, there had been insufficient preventive measures and neither a clear policy nor criteria governing the use of force and firearms. With regard to the domestic-law provisions, the applicants observed that Article 53 of the Criminal Code and Article 24 of the Public Safety Code were incompatible with Article 2 of the Convention and with international standards, given that they had been adopted during the Fascist era and also on account of their content, which reflected that context. In that connection the applicants were of the opinion that the concept of “necessity” as a justification for the use of weapons and that of “use of force” did not correspond to the principles established by the Court’s case-law regarding the use of weapons, which had to be “absolutely necessary”. Furthermore, Article 52 of the Criminal Code stated that self defence came into play when “the defensive response [was] proportionate to the attack”. This was not equivalent to the terms “strictly unavoidable in order to protect life” and “strictly proportionate [in the circumstances]” used in the Court’s case-law.
150. Furthermore, there had been no clear regulations conforming to international standards concerning the use of firearms; none of the service orders from the Genoa questore submitted by the Government had regulated the use of firearms. The applicants referred to the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders held in Havana (Cuba) from 27 August to 7 September 1990. They referred in particular to the obligation for governments and law enforcement agencies to adopt and implement rules and regulations on the use of force and firearms by law enforcement officials (paragraph 1). They further referred to paragraph 11, which stated that rules and regulations on the use of firearms by law enforcement officials should include guidelines that specified the circumstances under which law enforcement officials were authorised to carry firearms and prescribed the types of firearms and ammunition permitted, ensured that firearms were used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm, and prohibited the use of those firearms and ammunition that caused unwarranted injury or presented an unwarranted risk.
151. A further problem lay with the selection and training of personnel. In that connection the applicants alleged that the CCIR company of carabinieri had been led by persons experienced in conducting international military police operations abroad, but who had no experience in maintaining and restoring public order. The officers Leso, Truglio and Cappello had previously served abroad (for instance, in Somalia). As to the experience of the personnel in general, the applicants observed that at the material time there had been no regulations laying down criteria for recruiting and selecting personnel to work on public-order operations, in breach of paragraphs 18 and 19 of the UN Principles. Moreover, the Government had not specified the minimum requirements to be met by carabinieri being deployed on large-scale public-order operations. As to the experience of the troops deployed in Genoa, the applicants argued that three quarters of them had been young officers performing military service in the carabinieri or had just been appointed as auxiliary officers (carabinieri di leva, carabinieri ausiliari). That gave some idea of their inexperience. With particular reference to the three carabinieri in the jeep: D.R. had been nineteen and a half at the material time and had been performing military service for four months; M.P. had been under twenty and had been serving for less than ten months; and F.C. had been under twenty-four and had been serving for twenty-two months. As to the week-long training course in Velletri mentioned by the Government, the applicants observed that it had not been aimed at familiarising personnel with international standards with a view to minimising the risk to demonstrators’ lives, but had been more akin to combat training, given that the instructors – for instance, Captain Cappello – had an international military background. This was incompatible with paragraph 20 of the UN Principles. Lastly, the applicants pointed to the observations made by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) in the report on its visit to Italy published on 17 April 2006 (see “Relevant international materials” above).
152. The equipment issued to the carabinieri was also a source of problems, as it had not conformed to paragraph 2 of the UN Principles, given that the carabinieri had been equipped only with live ammunition and not with rubber bullets. Furthermore, some of the carabinieri, according to the applicants, had used weapons such as metal truncheons which did not comply with the regulations.
153. The applicants turned next to the service order of 19 July 2001, observing that it had substantially amended the previous instructions by giving the carabinieri a “roving brief” for their defensive operations, which entailed their moving around, whereas previously they had been meant to remain in one location. In addition, the service order of 19 July had authorised the Tute bianche march as well as stationary demonstrations. Moreover, the service order had not been circulated properly. This was clear from the statements made during the “trial of the twenty-five” by police officer Lauro and carabinieri officer Zappia; the former stated that he had been informed of the changes by radio on the morning of 20 July, while the latter said that the service order had reached him at 3 a.m. that day. Mr Lauro also stated that on 19 July he had been told that no march had been authorised for the following day, and that he was to commence duty at 6 a.m. in a specified location; on 20 July he had received different instructions by radio during the course of the morning, telling him to report for duty at 10 a.m. in another location. Lastly, he stated that he had not known that there was going to be a march (statement by Mr Lauro at the hearing of 26 April 2005 in the “trial of the twenty-five”; statement by Mr Zappia at the hearing of 3 May 2005 in the same trial). Finally, the applicants alleged that the law enforcement officers chosen and deployed in Genoa had not been familiar with the city and its streets. They referred in that regard to several statements made at the “trial of the twenty-five” (Mr Mondelli, hearing of 16 November 2004; Mr Bruno, same hearing; Mr Fiorillo, hearing of 8 February 2005; Mr Lauro, hearing of 26 April 2005; and Mr Mirante, 15 March 2005).
154. The applicants further contended that the Italian authorities had not taken the necessary measures to safeguard lives in managing the public order operation and had not been capable of assessing the risks adequately. In that regard they observed that M.P. had been considered by his superior officer, Captain Cappello, to be mentally and physically unfit to continue on duty. As a result, his tear-gas gun and grenades had been taken from him. The applicants therefore wondered why the pistol loaded with live ammunition had not also been taken. In their view, this factor was in itself sufficient to justify finding a violation of Article 2 of the Convention
.
155. The applicants also observed that the jeep in which M.P. had been travelling was not an armoured vehicle, but had nonetheless been left unprotected. It was not clear from the investigation file why the jeeps had been bringing up the rear of the detachment when it moved off to attack a group of demonstrators. Officers Lauro and Cappello, who had been in charge, had stated at the “trial of the twenty-five” that they had not noticed the two jeeps following behind. The latter had said that “the jeep following behind must be armoured, anything else is suicide” (hearings of 26 April and 20 September 2005). In any event, the applicants considered that the fact that there was no surveillance of the two jeeps following the company, with the result that they were able to follow the detachment when it moved off to attack the demonstrators, showed the level of disorganisation and the lack of a clear chain of command.
156. The applicants observed that there had also been problems with the communications system due to the way it was structured, with large numbers of police officers and carabinieri having to communicate with the control room, and with the police and the carabinieri being unable to communicate by radio among themselves.
157. Finally, the applicants could not understand why, despite being close by, the law-enforcement officers present at the scene had not intervened. In their view, the police officers standing not far away must have been able to see what was happening.
158. The applicants further alleged that the fact that Carlo Giuliani had not received assistance immediately after falling to the ground and being driven over by the jeep had contributed to his death.
(b) The procedural aspect of Article 2 of the Convention
159. The applicants contended that the investigation had not been effective within the meaning of Article 2 of the Convention. Accordingly, they requested the Court to treat the findings of the national judicial authority with caution (they referred to Erdogan and Others, cited above). In their submission, there had been shortcomings in the investigation carried out by the national authorities in terms of its scope and on account of numerous problems and a lack of impartiality.
160. With regard to the scope of the investigation, the applicants observed that at no point had an assessment been made of the authorities’ overall responsibility for the shortcomings in the conduct of the operations and for their inability to ensure a proportionate use of force in order to disperse the demonstrators (they referred to Simsek and Others, cited above). The investigation had not covered the planning and coordination of the operations (the applicants referred to Erdogan and Others, cited above), nor had it examined the instructions issued to the law enforcement officers or the reasons why the latter had been issued only with live ammunition (ibid.). The public prosecutor seemed to have accepted the version of events provided by the law-enforcement officers without asking further questions about the factual circumstances. The public prosecutor had never considered whether M.P.’s superior officers could be held responsible for having left a lethal weapon in the hands of a carabiniere who was mentally and physically unfit to remain on duty.
161. The applicants pointed out that the Government had pleaded in their defence that the scope of the investigation could not be widened because the public prosecutor’s office could act only in relation to the person suspected of having committed the offence. An investigation into the political and organisational decisions taken had been ruled out, as the public prosecutor could not examine whether the operational choices made during the G8 summit had been well-founded.
In the applicants’ submission, if this were true it meant that the domestic law was incompatible with Article 2 of the Convention, in not allowing the investigation to be extended to establishing responsibility for the planning, organisation and management of the operations and to the circumstances surrounding the victim’s death.
However, given that the public prosecutor, in requesting that the proceedings be discontinued, had referred to problems (without specifying what they were), and that this finding had not prompted an investigation into the causes of the problems and who was responsible for them, the violation of Article 2 was also linked to the public prosecutor’s choice to conduct an incomplete investigation.
162. The applicants stressed that they had objected to the request to discontinue the proceedings and had requested that the investigation be intensified and widened, to no avail. They criticised the investigators for not hearing evidence from J.M., the witness who had seen Carlo Giuliani alive after the shot; for not attempting to identify the person who had thrown “the stone”; for not investigating whether M.P.’s weapon had complied with the regulations; for not hearing evidence from the person who had taken the photograph showing Carlo Giuliani carrying the fire extinguisher, with the result that the distance between the latter and the jeep had been assumed and not confirmed; for not considering the possibility that the fatal bullet had been modified before the shot was fired (the “dum dum” effect), in line with the practice in the law enforcement agencies; and for not taking evidence from high-ranking police officers.
163. As to the possibility of participating in the investigation conducted by the prosecution authorities, the applicants observed at the outset that they had at no point been “parties” to the proceedings, since under Italian law it was only possible to join the proceedings as a civil party seeking damages once the case had been referred for trial. As injured parties in the absence of a referral for trial, the applicants had had limited rights to participate in the investigation. Those rights were even more restricted when the public prosecutor proceeded on the basis of Article 360 of the Code of Criminal Procedure (one-off technical investigations), as in that case the law made no provision for the injured party to request the public prosecutor to apply to the judge for the immediate production of evidence (and only where such an application was made could the injured party request the judge to put questions to the experts appointed by the public prosecutor’s office).
164. The applicants had found themselves faced with “one-off technical investigations” in relation to the autopsy and the expert examination by the panel.
With specific reference to the autopsy, the applicants also remarked that the public prosecutor’s office had informed them at the end of the morning that the autopsy would begin at 3 p.m. The notice given was so short that the applicants and their lawyer had not had a chance to grasp the situation and study it.
With regard to the first and second ballistics examinations, the applicants admitted that they had had the possibility in theory of requesting the public prosecutor to apply to the judge for the immediate production of evidence. However, as the public prosecutor himself had made such an application and it had been refused, the applicants had seen no point in making the request.
165. Lastly, the applicants observed that they had been unable to intervene during the initial steps in the investigation entrusted to the carabinieri (seizure of M.P.’s weapon; finding that the weapon had been equipped with a magazine; initial technical examination of the body in the hospital mortuary; technical inspection of the jeep in which M.P. had been travelling; photos of M.P.’s equipment at the moment of Carlo Giuliani’s death; check carried out in relation to the shutter of M.P.’s weapon, which was not the original; seizure of the vehicle), as the law made no provision for them to intervene.
166. The applicants went on to list a number of shortcomings in the investigation:
– the bullets had never been found, with the result that no proper ballistics expert examination had been possible. Only two spent cartridges had been found, and it was not certain that they matched the bullets fired by M.P. (the applicants referred to the first and second ballistics reports);
– a scan had shown a metal fragment lodged in Carlo Giuliani’s skull. This had never been recovered and added to the file;
– the judicial authority had not intervened rapidly at the scene and had not managed to preserve the scene;
– the weapon, the equipment and the jeep had remained in the possession of the carabinieri;
– M.P., D.R. and F.C. had been interviewed by their superior officers before giving evidence to the public prosecutor, and had been able to communicate among themselves. Moreover, D.R. had not given evidence until the day after the events;
– some of the law-enforcement officers present at the scene had given evidence only after a considerable delay (Captain Cappello had given evidence on 11 September 2001 and his deputy, Zappia, on 21 December 2001);
– the investigating judge had based her decision to discontinue the proceedings in part on material taken from an anonymous website;
– the decision to discontinue the case meant that there had been no adversarial proceedings.
167. The applicants questioned the impartiality of the investigation on account of the role played by the Genoa carabinieri (comando provinciale di Genova), as evidence could potentially have been taken from those carabinieri had the investigation been in conformity with Article 2 of the Convention. They observed that:
– immediately after the death of Carlo Giuliani, the three carabinieri had left (with the jeep and the weapons) and had been absent until the public prosecutor had begun examining witnesses hours later. Hence, M.P., F.C. and D.R. had been interviewed by their superior officers before giving evidence to the public prosecutor;
– the carabinieri had been the first to take possession of M.P.’s weapon and had seized it; they had stated that the magazine had fewer than fifteen bullets;
– the initial technical inspection of the body had been conducted by the carabinieri;
– the carabinieri had conducted the technical inspection of the jeep and had been left in possession of the vehicle and the equipment on board, including a spent cartridge;
– they had taken the photographs of M.P.’s equipment;
– they had been given the task of finding and handing over to the judicial authority all the films and photographs (taken from the air and the ground) taken by the carabinieri and others relating to the events occurring on Piazza Alimonda on 20 July between 12 noon and 6 p.m.;
– they had been given the task of verifying the audiovisual material;
– they had recorded the statements made to the public prosecutor.
168. The applicants also questioned the impartiality of the investigation on the ground that it should have covered the Genoa police (squadra mobile di Genova) had it been conducted in conformity with Article 2. In that regard the applicants observed that the Genoa questore had been the most senior law-enforcement officer during the G8 summit, that the operations control room for the G8 had been in the headquarters of the Genoa police and that the orders to attack the demonstrators had been given by police officers.
169. Finally, the applicants questioned the impartiality of the expert Mr Romanini, who had been chosen by the public prosecutor’s office to coordinate the third ballistics expert examination. They observed that the expert in question had published an article in September 2001 in a specialist review (TAC Armi) claiming that M.P. had acted in self-defence. Questions regarding Mr Romanini’s suitability had been raised by the daily newspaper Il Manifesto on 19 March 2003, that is to say, before the decision to discontinue the proceedings was taken on 5 May 2003. The applicants had not had an opportunity to request the exclusion of the prosecution authorities’ appointee, since the case had not gone beyond the preliminary investigation stage.
The applicants stressed the impact that Mr Romanini’s report had had on the judicial authority, which had accepted his theory of the “bullet having been deflected by a stone”.
170. In the light of these considerations, the applicants requested the Court to find that there had been a violation of Article 2 of the Convention in its procedural aspect.
2. The Government
(a) The substantive aspect of Article 2 of the Convention
171. Arguing that the investigation conducted at national level had been effective, the Government observed at the outset that it was not the Court’s task to call into question the findings of the investigation and the conclusions of the national judges. Accordingly, the reply – in the negative – to the question whether the domestic authorities had failed in their duty to protect the life of Carlo Giuliani could be found in the request for the proceedings to be discontinued, as could the facts on which the Court should base its findings. In support of their assertions the Government referred to the partly dissenting opinion of Judges Thomassen and Zagrebelsky in Ramsahai and Others v. the Netherlands (no. 52391/99, 10 November 2005), and requested the Court to follow that approach.
172. In the Government’s submission, there had been no intentional taking of life in the instant case. Furthermore, there had been no “excessive use of force” either on the part of M.P. or in terms of the organisation and management of the public-order operation. In its memorandum included in the Government’s observations, the Ministry of the Interior observed that, at the close of the criminal investigation, it had been concluded that M.P. had made legitimate use of his weapon, and that it was on that basis that the proceedings had been discontinued.
173. The Government submitted that there was no causal link between the shot fired by M.P. and the death of Carlo Giuliani; the bullet had struck the victim only as the result of a highly unusual and unforeseeable occurrence. In their view, this emerged from the decision to discontinue the proceedings. In that connection they pointed out that the decision to discontinue the proceedings had been based not on a finding that M.P. had not been objectively responsible (it had been beyond doubt, from a very early stage in the investigation, that Carlo Giuliani had been killed by a bullet fired by M.P.), but on legal grounds (self-defence) combined with certain factual elements relating to the direction in which the shot had been fired, the degree of visibility and the abnormal trajectory of the bullet. While it was true that the investigating judge had applied the rules which excluded responsibility in the cases of legitimate use of a weapon and self defence, she had not overlooked the unusual and unforeseeable circumstance that the shot had been deflected after colliding with a stone, a circumstance which she had assessed from the standpoint of proportionality. The Government inferred from this that the decision to discontinue the proceedings had ruled out any responsibility on M.P.’s part on the ground that the causal link between the shot fired and Carlo Giuliani’s death had been severed as a result of the bullet’s collision with the stone and its deflection. This “also formed part of the reasons for his acquittal, but ultimately this procedural detail was of little significance”.
174. The Government pointed to the findings of the investigating judge, according to which M.P. had acted on his own initiative, in a state of panic and in a situation where he had valid reasons for believing that there was a serious and imminent threat to his life or physical integrity and those of his colleagues. Furthermore, M.P. had not aimed at Carlo Giuliani or at anyone else. He had fired upwards, in a direction that entailed no risk of striking someone. It would therefore be inappropriate to hold M.P. responsible for the death of Carlo Giuliani, as the causal link between his action and its effects had been severed by the intervention of an unforeseeable and uncontrollable external factor. Carlo Giuliani’s death had not been the intended and direct consequence of the use of force, and the force used had not been potentially lethal (the Government referred to Scavuzzo-Hager and Others v. Switzerland, no. 41773/98, §§ 58 and 60, 7 February 2006, and Kathleen Stewart v. the United Kingdom, Commission decision of 10 July 1984, Decisions and Reports (DR) 39, p. 162). As to the trajectory of the bullet, the Government stressed “the low probability and unforeseeability of the bullet colliding with a solid object and being deflected by it”. The applicants had subscribed to this theory of “deflection of the bullet”, as indicated by the public prosecutor in the request for the proceedings to be discontinued, since the experts of both parties had agreed that the bullet had already fragmented before striking the victim’s body, implying that they had also been in agreement as to the causes of fragmentation. The other possibilities advanced by the applicants to explain why the bullet had fragmented – such as its having been manipulated in order to make it more likely to fragment, or the presence of a manufacturing defect – had been said by the applicants themselves to be “much less likely”. Given their lower degree of probability, these hypotheses could not be regarded as valid explanations. Finally, as to the impossibility of identifying the object which might have collided with the bullet, damaging it and deflecting it, the Government – like the public prosecutor – considered this to be a detail which did not appear capable of having a decisive impact on the investigation’s findings.
175. In the alternative, and “just to be sure”, if the Court were to find that there was a legally significant causal link between the shot fired and the death of Carlo Giuliani, and the responsibility of the State was engaged accordingly, the Government argued that the use of “lethal” force had been “absolutely necessary” and “proportionate” (the Government referred to Andronicou and Constantinou v. Cyprus, 9 October 1997, Reports of Judgments and Decisions 1997 VI; Brady v. the United Kingdom (dec.), no. 55151/00, 3 April 2001; and Ahmet Özkanet and Others v. Turkey, no. 21689/93, 6 April 2004). In support of their argument, the Government proceeded to analyse the decision to discontinue the proceedings, taking into consideration the following elements arising from it: the level and widespread nature of the violence which had marked the demonstrations from the outset; the force of the assault by demonstrators on the contingent of carabinieri immediately prior to the events in question and the peak of violence at that moment; the physical and mental state of the individual carabinieri concerned, especially M.P.; the extremely brief period in which the events had occurred, from the assault on the vehicle until the fatal shot was fired (on this point the Government referred to two video cassettes they had submitted); the fact that M.P. had fired only two shots and had directed them upwards; the likelihood that M.P. had been unable to see the victim when he fired the shot or, at most, could see him only indistinctly within the limits of his field of vision; the injuries sustained by M.P. and D.R. while on duty on 20 July.
176. With particular reference to the height at which M.P. had fired the shots, the Government observed that it had not been proven that the photograph showing the pistol protruding from the rear window of the jeep – which had been added to the file – represented the position of the weapon at the moment the shots were fired. It should be borne in mind that M.P. had drawn his weapon a few seconds at least before shooting, and that only a fraction of a second was needed in order to move the hand by a few centimetres or alter its angle by a few degrees. The photograph in question, therefore, did not provide proof of M.P.’s responsibility in relation to the death of Carlo Giuliani and did not serve to refute the hypothesis of an unforeseeable accident.
177. The Government went on to emphasise “the objective impossibility, noted by the public prosecutor’s office, of establishing M.P.’s psychological state and his precise intentions, on account of his confusion and panic at the time of the events and his inability to provide answers to his own questions”. However, “one [had] only to look at the video footage and consider the injuries already sustained by the carabinieri in order to realise that they [had] indeed [been] in immediate and serious danger of losing their lives or being seriously injured. At the very least they had legitimate reason to think that they ran such a risk”. M.P.’s equipment had consisted of the clothing issued for public-order duties, two helmets fitted with a visor, a rucksack, six large tear-gas grenades, a Dirin 500 Sekur gas mask filter, and a Beretta pistol and magazine. The Ministry of the Interior stated that it could not be established whether there had been a riot shield in the jeep at the material time.
178. The Government observed that M.P. had not at any point received an order to fire and had acted on his own initiative, in a state of panic and in a situation where he had valid reasons for believing that there was a serious threat to his life or physical integrity and those of his colleagues. The use of firearms had not been advocated at any point in the planning of the operations. Carlo Giuliani’s death had to be seen in an overall context of violence; this excluded the possibility that there had been any excess in the use of the weapon or any disproportionate conduct. In the Government’s submission, M.P. had had no other option than to fire his weapon, as the vehicle’s position made escape impossible. Furthermore, the carabinieri in the jeep had been unable to summon help given their state of panic, the violent intentions of the demonstrators and the speed of events. Moreover, there would have been no time for help to arrive, given the distance involved and the fact that the law-enforcement agencies needed to regroup and had themselves been engaged in a clash with demonstrators.
179. The public prosecutor’s request for the proceedings to be discontinued had been based on all these factors and on the favor rei principle: where there were doubts and it appeared impossible to prosecute the case in court with any prospect of success on the basis of the evidence gathered, and a trial was not likely to add anything significant to the evidence, the proceedings should be discontinued.
180. The Government therefore concluded that the State’s responsibility was not in any sense engaged in respect of the actions of M.P. and F.C.
181. As to whether the authorities could be held responsible for having indirectly brought about the dangerous situation which had made it necessary for M.P. to shoot, the Government observed that Carlo Giuliani’s death had resulted from individual action taken by M.P., which had not been ordered or authorised by his superior officers and had therefore been an unforeseen and unforeseeable reaction. The conclusions of the investigation – that the shot had been fired upwards and intercepted and deflected by a stone – ruled out any responsibility on the part of the State, including indirect responsibility on account of supposed shortcomings in the organisation or management of the public-order operation as a whole. With regard to the “problems” referred to by the public prosecutor in the request for the proceedings to be discontinued, in particular on account of the organisational changes made the night before the events, the Government observed that no details had been given, nor had the existence of such problems been established. For their part, the Government denied that the conduct of the operation had been adversely affected by any inappropriate changes of plan or, in any event, that any problems there might have been were at the root of the events in issue.
182. Referring to the Andronicou and Constantinou judgment, cited above, the Government called on the Court to show similar restraint and confine itself to a simple expression of “regret” in relation to the death of Carlo Giuliani. There was no justification for the Court to substitute its assessment for that of the officers and officials who, in their offices or on the ground, had planned and carried out the operation.
183. As to the overall organisation of the public-order operation, the Government observed that there was nothing to suggest that there had been an error of assessment which could be linked to the events at issue. They observed that there was no causal link between the death of Carlo Giuliani and the attack on the Tute bianche march. Nor were there any grounds for asserting that the contingent of carabinieri should not have been taken to Piazza Alimonda, given time to regroup and been deployed to deal with the demonstrators.
184. What distinguished the present case from Ergi v. Turkey (28 July 1998, Reports 1998 IV); Oğur v. Turkey ([GC], no. 21594/93, ECHR 1999 III); and Makaratzis (cited above), was the fact that, in the instant case, the planning of the operation could only be partial and approximate, given that the demonstrators might either have remained peaceful or have engaged in violence. As a result, the demonstrators had “so to speak, inevitably called the tune with regard to how events unfolded, and the authorities [had been] unable to predict in detail what would happen and had to ensure that they could intervene in a flexible manner, which was difficult to plan for”.
185. The Government further observed that a second element distinguished the present case from those referred to above. In those cases, the victims had been struck by a bullet fired at chest height as part of a round of several shots. In sum, “in none of the cases concerned had chance played the same role as in the situation in issue”.
186. The Government observed that the demonstrations in Genoa should have been peaceful and been conducted lawfully. The video footage showed that a majority of demonstrators had remained within the law and had not engaged in violence. The authorities had done everything in their power – through the intelligence services – to prevent disruptive elements (anarchists, provocateurs, violent and aggressive individuals and even terrorists) from joining in with the demonstrators and causing the demonstrations to degenerate. In that connection the Government alleged that “a considerable number of violent individuals (including Carlo Giuliani) had managed to travel to Genoa and lay waste to the city”. Substantial precautions had been taken in case the situation degenerated. However, no one “without the aid of a clairvoyant” could have foreseen exactly when, where and how violence would break out, and in which direction it would spread. When the carabinieri had arrived at Piazza Alimonda the situation had been calm and the officers in charge had used the opportunity to reorganise their men and allow M.P. and D.R., the two carabinieri who were suffering the effects of tear gas, to get into the jeep. Only when attacked by the demonstrators (who were throwing hard objects and were starting to surround the jeep with the clear intention of launching a serious attack on the carabinieri) had the latter been forced to withdraw. During the withdrawal, the two jeeps had become cut off. In the Government’s view, if the events had not been precipitated, the jeep in question would have left straight away with the injured men.
187. As to why an unarmoured jeep of the kind in which M.P. was travelling had been used at the G8 summit, the Government contended that the jeep in question had not been intended to play an operational role in maintaining public order and had been there simply to provide logistical back-up. The Government further stated that the Defender jeep had been equipped with metal bars to protect the windscreen and the front side windows. The rear side windows and the rear window had not had metal bars. The jeep had also been equipped with a Gamma 400 radio system.
188. As to the fact that the law-enforcement agencies had been issued with live ammunition rather than rubber bullets, the Government observed that Italian law did not permit the use of the latter. In any event, carrying “non-lethal” weapons, whatever the rules in force, encouraged officers to make use of them in the mistaken belief that they would not cause serious harm. The rule in Italy was that firearms were not used in public order operations: the police did not fire at crowds, whether with lead bullets or rubber bullets. Furthermore, the experiments conducted in the 1980s with “non-lethal” weapons and ammunition had been suspended following incidents which demonstrated that they could cause death or very serious injuries. Non-lethal weapons were designed for use against large crowds in order to counter a mass attack by demonstrators or disperse them. In the instant case, the law-enforcement agencies had at no point been ordered to fire: their equipment had been intended, as in M.P.’s case, for their personal protection.
189. No specific provisions concerning the use of firearms had been adopted with a view to the G8 summit. However, reference had been made to the circulars issued by the senior command of the carabinieri setting forth the provisions of the Criminal Code in force (Articles 52, 53 and 54).
190. With regard to the professional experience of the carabinieri deployed at the G8 summit in Genoa, the Government stated that F.C. (the driver) had been a serving officer since 16 September 1999; D.R. an auxiliary, had served since 16 March 2001 and M.P., also an auxiliary, since 14 September 2000. Their training had included basic technical training when they were recruited and further courses on public-order operations and use of the equipment issued. In addition, they had acquired significant experience at sporting and other events.
191. Lastly, ahead of the G8 summit all the personnel deployed in Genoa, including the three above-mentioned carabinieri, had taken part in training sessions in Velletri at which experienced instructors had dispensed advanced training in techniques for use in public-order operations.
192. As to why the law-enforcement officers who had been close to the jeep had not intervened, the Government observed that the carabinieri at the scene had just withdrawn under an attack by demonstrators and needed time to regroup. As to the police officers, who had been “a relatively short distance away, but not in the immediate vicinity”, they had intervened as rapidly as possible. In that connection the Government emphasised the speed with which the tragic events had occurred (some tens of seconds in all).
193. Finally, the Government pointed out that the autopsy report had observed that the fact that the vehicle had driven over Carlo Giuliani’s body had not entailed any serious consequences for the latter. Moreover, the emergency services had arrived quickly at the scene.
(b) The procedural aspect of Article 2 of the Convention
194. The Government observed that the procedural aspect of the complaint should be taken as the starting point, and requested the Court to find that the investigation had been in conformity with Article 2. On the basis of that finding, it would then be possible to examine the substantive limb of the complaint without calling into question the conclusions of the national judge.
195. As to the effectiveness requirement, the Government stressed that this was an obligation of means rather than of result. Consequently, the fact that the means deployed, despite being adequate, had not been capable of clarifying fully all aspects of the instant case should not in itself lead the Court to conclude that the investigation had been inadequate. The Government conceded that “certain documents noted difficulties in reconstructing the events, on account, inter alia, of the unavailability of some elements, but those difficulties were not in any way attributable to the authorities or to negligence on their part, but rather resulted from objective circumstances beyond their control. Given that no lack of diligence ha[d] been established, the grey areas concerning the reconstruction of events [could] not therefore be attributed to the investigators, who [had] fulfilled their obligation as to means”. In the instant case the factual evidence had been thoroughly verified. In any event, even assuming that any doubts persisted with regard to some of the factual elements, it was the accused rather than the victim who had to be given the benefit of the doubt in criminal matters (in dubio pro reo). This principle could not be called into question by a strained interpretation of Article 2. In any case, it was not for the Court to take the place of the national courts in assessing whether or not particular items of evidence were conclusive.
196. As to the requirement of promptness in instituting proceedings and gathering evidence, this too had been complied with, particularly in view of the following considerations: the two suspects had been placed under investigation the day after the events; immediately after the events, Piazza Alimonda had been sealed off and the scene had been preserved; relevant objects had been immediately identified and seized; the autopsy had been conducted within 24 hours; evidence had been taken straight away from the chief protagonists and witnesses (M.P. and F.C. the same evening and D.R. on the following day); the other witnesses who could be tracked down readily had also given evidence within a very short time; only those demonstrators whom it had been harder to identify had been summoned later, but even they had been summoned within a time-frame that was fully compatible with the requirement of promptness.
197. As far as the scope and thoroughness of the investigation were concerned, the Government observed that the judicial authority had left no stone unturned in establishing the facts and had deployed the most advanced technologies towards that end, as well as more traditional methods. Hence, the public prosecutor’s office and the investigators had carried out further questioning of persons who had already given evidence once, where this was deemed necessary, and had also taken evidence from other persons (local residents who might have witnessed the events) who had no links to the demonstrators or the law-enforcement agencies. A reconstruction of the events and test shootings had been carried out at the scene. A large body of audiovisual material had been included in the case file. In addition to the images filmed by the law-enforcement agencies (which, it was pointed out, could not be deemed to be unreliable merely on that account), this also included material recorded by individuals (journalists in particular). Three ballistics expert examinations had been ordered by the public prosecutor’s office, the third of which had been entrusted to a panel of four experts who were well known for having performed delicate forensic examinations in other cases. Finally, the Government pointed out that the investigating judge had also relied in her decision on material from sources close to the demonstrators themselves (the material taken from an anarchist website). That proved “the care and impartiality with which any potentially useful evidence [had been] gathered and analysed, even where its existence and content [had] not [been] obvious beforehand”.
198. With reference to the fact that the investigation had concerned only M.P. and F.C., the Government observed that criminal responsibility was strictly personal and presupposed a causal relationship whereby the offence concerned was the direct and immediate consequence of the act complained of. Any errors or problems there might have been in the organisation, management and conduct of the public-order operation could in no sense be considered to have been the direct cause of the tragic events on Piazza Alimonda. It would therefore have been superfluous, and beyond the remit and powers of the judicial authority, to extend the investigation to include high-ranking police officers or to try to identify other persons responsible, “since it was not the aim of criminal proceedings to find a scapegoat at all costs”. In particular, the provision of the Criminal Code which referred to “omitting to perform an official duty” was not applicable in the instant case, as it had never been suggested that any officials, carabinieri or police officers had refused or omitted to perform their official duties.
199. As to the transparency requirement in respect of the investigation – which had been opened automatically, in accordance with the legal principle of mandatory criminal proceedings – the Government observed that the applicants had had the opportunity, from the outset, of participating fully in the investigation by being represented by lawyers. They could also have participated in the technical procedures by sending experts. The applicants had taken part, via their own experts, in the third ballistics expert examination and in the reconstruction of the events. This had been made possible by the public prosecutor’s office, which had “even strained the interpretation and application of Article 360 of the Code of Criminal Procedure”. Furthermore, the applicants had not taken advantage of the opportunity to participate in the autopsy. In that connection the Government observed that notice of the autopsy had been served on the first applicant at 12.10 p.m. on 21 July 2001, that is, three hours before it began. In view of the need for promptness in cases of this kind that period could not be said to have been too short. Finally, the Government remarked that the applicants had been able to make criticisms and requests when objecting to the request for the proceedings to be discontinued; the decision by the judge to discontinue the proceedings had provided them with sufficiently detailed reasons why their requests for further investigation had been refused. While it was true that the applicants had not had an opportunity of requesting the immediate production of evidence under Article 394 of the Code of Criminal Procedure in relation to the first steps in the investigation, checks of that kind were a matter exclusively for the police. As to the possibility of applying to the public prosecutor’s office for the immediate production of evidence in relation to the autopsy and the expert panel’s reconstruction of events, the Government maintained that the law provided for such a possibility, even though it was not enshrined in Article 360 of the CCP. However, the public prosecutor’s office would not have been obliged to comply with such a request. In any event, when it came to the panel’s expert examination, the public prosecutor had asked the parties whether they had any objections to the use of the procedure under Article 360, and there had been no objections. As to the two ballistics expert examinations conducted prior to the panel’s examination, the Government conceded that they had been carried out unilaterally. However, they had been aimed solely at establishing whether the two spent cartridges found belonged to M.P.’s weapon. Given that the latter had already admitted firing two shots, they had not had a decisive impact on the reconstruction of the events and the subsequent course of the investigation. They had been no more than routine checks. In any case the weapon had been examined again by the panel of experts.
200. With regard to the requirement that the investigation be impartial, the Government submitted that within moments of the tragedy the Genoa police (squadra mobile della questura di Genova) had intervened and taken the investigation in hand. The carabinieri had been instructed only “in relation to tasks of lesser importance and objects in their possession – for example, the seizure of the vehicle and the weapon – or to members of the carabinieri – for example, when it came to summoning (not taking evidence from) their officers.” In addition, the prosecuting authorities had kept the number of measures delegated to a minimum, preferring to perform them themselves. This was true in particular of the most important interviews and those which might have been influenced by the fact that the person asking the questions was a member of the police force or another officer. “In view of the level of autonomy and independence of the judiciary in Italy, which is among the highest in Europe, and which (unlike in some other countries) applies equally to judges and representatives of the public prosecution service, and the fact that the investigation has to be entrusted to a police authority (short of having recourse to private detectives for Article 2 cases), the investigation or the investigators could not be said to have lacked impartiality in any sense (from either a subjective or an objective standpoint). Furthermore, the fact that such a suggestion belongs in the realm of pure fantasy is confirmed by two circumstantial factors. At an internal level, it is confirmed by the findings of the investigation, which gave no reason to suppose that attempts were being made to hide anything, and by the reasons given for the decision to discontinue the proceedings; externally, it is confirmed by the results of a different investigation – relating to certain incidents which occurred after the episode on Piazza Alimonda – at the conclusion of which several law enforcement officers accused of raiding a school where some demonstrators were staying overnight were committed for trial”.
201. The Government further observed that all the experts appointed by the public prosecutor’s office had been civilians with the exception of the second ballistics expert, who was a police officer. As to Mr Romanini, when they had instructed him to prepare the expert report the prosecuting authorities had been unaware that he had published an editorial article in September 2001 in which he had expressed the view that M.P. had acted in self-defence, given the obvious danger of the situation and his own fear. The Government maintained that the aim of the article in question had been simply to propound a political theory based on a comparison between the episode in question and a previous tragedy in Naples which Mr Romanini considered to be more serious in objective terms, but which in his view had caused much less stir in the media because it had not lent itself to exploitation for political ends. In the Government’s view, the fact that he had written the article did not render Mr Romanini unfit to carry out his task as an expert in an objective and impartial manner, given that he had not been asked to examine whether M.P. had acted in self defence or to ascertain whether the events supported the thesis of self defence. The panel of experts had been asked in particular to give its views on the trajectory of the bullet. Mr Romanini’s specific role had been confined to carrying out test shootings in the presence of the other experts, the applicants and their experts. That activity, which had been “purely technical and essentially physical”, had not afforded scope for preconceived assessments which might have influenced the outcome of the investigation. Moreover, the Government observed that the applicants had not raised any objections to the choice of Mr Romanini.
202. In conclusion, the Government took the view that the investigation had been effective and that the procedural obligations flowing from Article 2 of the Convention had been complied with.
203. The Government also stated that no administrative or disciplinary proceedings had been instituted against the carabinieri. As to the police officers, the Government observed that two sets of proceedings were pending against several officers for acts of violence allegedly committed against demonstrators on 21 and 22 July 2001 following the death of Carlo Giuliani.
B. The Court’s assessment
1. General principles
204. Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, and one from which no derogation is permitted. Together with Article 3, it enshrines one of the basic values of the democratic societies making up the Council of Europe. The circumstances in which deprivation of life may be justified must therefore be strictly construed. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see McCann and Others v. the United Kingdom, 27 September 1995, §§ 146 147, Series A no. 324). The text of Article 2, read as a whole, demonstrates that it covers not only intentional killing but also situations where it is permitted to “use force” which may result, as an unintended outcome, in the deprivation of life. The deliberate or intended use of lethal force is only one factor, however, to be taken into account in assessing its necessity. Any use of force must be no more than “absolutely necessary” for the achievement of one or more of the purposes set out in sub-paragraphs (a) to (c) of the second paragraph of Article 2. This term indicates that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is “necessary in a democratic society” under paragraphs 2 of Articles 8 to 11 of the Convention. In particular, the force used must be strictly proportionate to the achievement of the permitted aims (see McCann and Others, cited above, §§ 148-149). In that connection the Court reiterates that the use of force by agents of the State in pursuit of one of the aims delineated in paragraph 2 of Article 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 (ibid., § 200).
205. The first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps within its internal legal order to safeguard the lives of those within its jurisdiction (see Kiliç v. Turkey, no. 22492/93, § 62, ECHR 2000 III). This involves a primary duty on the State to secure the right to life by putting in place an appropriate legal and administrative framework to deter the commission of offences against the person, backed up by law enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. As the text of Article 2 itself shows, the use of lethal force by police officers may be justified in certain circumstances. Nonetheless, Article 2 does not grant a carte blanche. Unregulated and arbitrary action by State agents is incompatible with effective respect for human rights. This means that, as well as being authorised under national law, policing operations must be sufficiently regulated by it, within the framework of a system of adequate and effective safeguards against arbitrariness and abuse of force (see Makaratzis, cited above, § 58).
206. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents, but also all the surrounding circumstances, including such matters as the planning and control of the actions under examination (see McCann and Others, cited above, §§ 147-150, and Andronicou and Constantinou, cited above, § 171).
207. The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 to “secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others, cited above, § 161, and Kaya v. Turkey, 19 February 1998, § 105, Reports 1998-I). Such investigations should take place in every case of a killing resulting from the use of force, regardless of whether the alleged perpetrators are State agents or third persons (see Tahsin Acar v. Turkey [GC], no. 26307/95, § 220, ECHR 2004 III). The investigation must be, inter alia, thorough, impartial and rigorous (see McCann and Others, cited above, §§ 161-163, and Çakıcı v. Turkey [GC], no. 23657/94, § 86, ECHR 1999-IV).
208. The Court further considers that the nature and degree of scrutiny which satisfies the minimum threshold of the investigation’s effectiveness depends on the circumstances of the particular case. It must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work. It is not possible to reduce the variety of situations which might occur to a bare check-list of acts of investigation or other simplified criteria (see Tanrıkulu v. Turkey [GC], no. 23763/94, §§ 101-10, ECHR 1999-IV; Kaya v. Turkey, cited above, §§ 89-91; Güleç v. Turkey 27 July 1998, §§ 79-81, Reports 1998-IV; Velikova v. Bulgaria, no. 41488/98, § 80, ECHR 2000 VI; and Buldan v. Turkey, no. 28298/95, § 83, 20 April 2004).
209. For an investigation to be “effective” in this sense it is generally necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence (see Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 325, ECHR 2007 …; McKerr v. the United Kingdom, no. 28883/95, § 128, ECHR 2001 III; Hugh Jordan v. the United Kingdom, no. 24746/94, § 120, ECHR 2001 III; and Aktaş v. Turkey, no. 24351/94, § 301, ECHR 2003 V). What is at stake here is nothing less than public confidence in the State’s monopoly on the use of force.
210. The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used was or was not justified in the circumstances (see, for example, Kaya, cited above, § 87) and to the identification and punishment of those responsible This is not an obligation of result, but of means. The authorities must take whatever reasonable steps they can to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death (as regards autopsies, see, for example, Salman v. Turkey [GC], no. 21986/93, § 106, ECHR 2000 VII; as regards witnesses, see, for example, Tanrıkulu, cited above, § 109; as regards forensic evidence, see, for example, Gül v. Turkey, no. 22676/93, § 89, 14 December 2000).
211. A requirement of promptness and reasonable expedition is implicit in this context (see Yaşa v. Turkey, 2 September 1998, §§ 102-04, Reports 1998-VI; Çakıcı, cited above, §§ 80, 87 and 106; Tanrıkulu, cited above, § 109; and Mahmut Kaya v. Turkey, no. 22535/93, §§ 106-07, ECHR 2000 III). While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts.
212. For the same reasons there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Güleç, cited above, § 82, where the father of the victim was not informed of the decisions not to prosecute; Oğur, cited above, § 92, where the family of the victim had no access to the investigation and court documents; and Gül, cited above, § 93).
213. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard (see Aktaş, cited above, § 300).
2. Application of these principles to the instant case
(a) The allegedly excessive use of force
214. The Court must first seek to establish whether there was excessive use of force such as to give rise to a violation of the substantive aspect of Article 2.
215. The investigation conducted at domestic level concluded that Carlo Giuliani was killed by a bullet fired by M.P.
216. Notwithstanding the arguments raised by the Government, the decision to discontinue the case in respect of M.P. was not based on the absence of a causal link between the fatal shot and the death of Carlo Giuliani; the collision between the stone and the bullet was not capable of severing that link, as stated explicitly by the public prosecutor in his request for the proceedings to be discontinued (see paragraph 83 above).
217. The existence of a causal link between M.P.’s shot and the death of Carlo Giuliani is central to the reasoning of the investigating judge, who accepted its existence, although this is not stated explicitly in the text of the decision to discontinue the proceedings. Indeed, had it been established that there was no causal link, this alone would have sufficed to rule out M.P.’s guilt.
Having accepted the existence of a causal link, the investigating judge expanded on her reasoning. In doing so, she assessed with care the circumstances surrounding the death of Carlo Giuliani, seeking to obtain a precise picture of the events on the basis of the testimonies gathered, the investigation file and the copious audiovisual material, as is clear from the text of the decision summarised in detail in paragraphs 93-116 above.
218. Although it had not been possible to determine the precise trajectory of the fatal bullet (see paragraph 99 above), the investigating judge considered that M.P. had fired upwards, meaning that the possibility that he had killed Carlo Giuliani deliberately could be ruled out (see paragraph 101 above). In the judge’s view, it was nonetheless a case of intentional homicide, as M.P. had not fired with the sole intention of intimidating his assailants, but in an attempt to counter the violence, thereby taking the risk of killing someone (see paragraph 100 above).
219. The investigating judge went on to examine whether there were any facts which might exclude responsibility on M.P.’s part. She concluded that there were two such facts: the legitimate use of the weapon and self defence.
220. As to the use of the weapon, the judge considered that it had been absolutely essential, given that the detailed reconstruction of the events suggested that M.P. had been in a situation of extreme violence disturbing public order and directly threatening the physical integrity of the carabinieri (see paragraph 101 above).
In assessing the danger the judge took into account the number of demonstrators and the overall methods of action such as the acts of violence against M.P. and the other occupants of the jeep. In particular, the judge based her findings on the testimonies and images showing the violence of the demonstrators’ attack, the constant barrage of stones to which the vehicle was subjected and which caused physical harm to its occupants, and the aggression shown towards the passengers by the demonstrators, who had continued to surround the vehicle at very close quarters while thrusting hard objects inside. This situation of persistent danger undeniably amounted, in the judge’s view, to a real and unjust threat to the personal integrity of M.P. and his colleagues and called for a defensive reaction that had been bound to culminate in M.P.’s using the only means at his disposal: his weapon.
221. In the judge’s view, even assuming that M.P. had deliberately fired his shots in the direction of Carlo Giuliani, the situation described above would in any case have made his use of the weapon legitimate (see paragraph 101 above).
222. As to the question of self-defence, the investigating judge considered that this too was a factor excluding criminal responsibility on the part of M.P., given that the latter had rightly perceived a threat to his physical safety and that of his colleagues. M.P.’s response had been necessary in view of the number of assailants, the means used, the sustained nature of the violence, the injuries to the jeep’s occupants and the vehicle’s difficulty in leaving the scene. His response had been appropriate given that, had he not taken out his weapon and fired two shots, the attack would have continued. If the fire extinguisher had landed in the jeep it would have caused serious injury to the occupants. Furthermore, M.P.’s response had been proportionate given the fact that, before shooting, he had shouted to the demonstrators to leave and given that he had fired upwards (see paragraphs 102-03 above). In conclusion, the action taken by M.P., who had taken the risk of killing someone by using his firearm, had been prompted by the need to defend the physical integrity of the jeep’s occupants and had been proportionate to the importance of what was being defended and the means available to defend it.
223. As to F.C., taking into consideration the fact that he had driven over Carlo Giuliani’s body without seeing him and that the jeep’s driving over the victim’s body had not been the cause of death or caused appreciable injuries, there was nothing to suggest that he had been in any way responsible (see paragraph 97 above).
224. In the light of the investigation’s findings and in the absence of any other element leading it to conclude otherwise, the Court has no reason to doubt that M.P. honestly believed that his life was in danger, and considers that he used his weapon as a means of defence against the attack targeting the jeep’s occupants, including himself, perceiving a direct threat to his own person (see McCann and Others, cited above, § 200, and Huohvanainen v. Finland, no. 57389/00, § 96, 13 March 2007). This is one of the circumstances enumerated in the second paragraph of Article 2 in which the use of lethal force may be legitimate; however, it goes without saying that a balance must exist between the aim and the means. In that context the Court must examine whether the use of lethal force was legitimate. In doing so it cannot, detached from the events at issue, substitute its own assessment of the situation for that of an officer who was required to react in the heat of the moment to avert an honestly perceived danger to his life (see Bubbins v. the United Kingdom, no. 50196/99, § 139, ECHR 2005 II (extracts)).
225. M.P. used a Beretta pistol, a powerful weapon. Having been taken off duty, he no longer had tear-gas grenades, and it has not been judicially established – the decision to discontinue the proceedings makes no mention of it – that he had a riot shield with which to protect himself. However, the Court notes that the photographic evidence shows a shield in the jeep and that one demonstrator stated that M.P. tried to defend himself with it (see paragraph 23 above). Before firing, M.P. shouted out and held the loaded Beretta in his hand in such a way that it was visible from the outside (the pistol can be seen on the pictures in the file). M.P. found himself facing a group of demonstrators who were engaged in a violent attack on the vehicle in which he was travelling and had ignored warnings to leave. The Court considers that, in the circumstances of the case, the use of lethal force, although highly regrettable, did not exceed the limits of what was absolutely necessary in order to avert what M.P. honestly perceived to be a real and imminent danger to his life and the lives of his colleagues.
226. The Court has not overlooked the fact that the person who fired the shot did so on his own initiative, in a state of panic. Accordingly, the Court does not deem it necessary to examine in abstracto the compatibility with Article 2 of the applicable legislative provisions on the use of weapons by law-enforcement officers during public-order operations (see McCann and Others, cited above, § 153), as the situation under consideration concerns the defence of a member of the armed forces who had been taken off duty and was in an unarmoured vehicle, and falls within the scope of Articles 52 and 53 of the Criminal Code.
227. Having regard to the foregoing, the Court considers that there was no disproportionate use of force. Accordingly, there has been no violation of the substantive aspect of Article 2 of the Convention in this regard.
(b) Failure to fulfil the obligation to protect the life of Carlo Giuliani
228. The Court must next consider whether the public-order operation was planned, organised and carried out in such a way as to minimise, in so far as this was possible, the use of lethal force. Should this not be the case it would have to find a breach of the positive obligations arising out of Article 2 of the Convention in its substantive aspect.
229. It notes at the outset that the shortcomings identified by the applicants (see paragraphs 149-59 above) were not taken into consideration by the national authorities, as the investigation which was carried out focused on the actions of F.C. and M.P. taken in isolation. The Court will return to this point in the context of its analysis of the procedural obligations arising out of Article 2 (see paragraphs 245-55 below).
230. In carrying out its assessment of the planning and control phase of the operation from the standpoint of Article 2 of the Convention, the Court must have particular regard to the context in which the incident occurred as well as to the way in which the situation developed. Its sole concern must be to evaluate whether, in the circumstances, the planning and control of the public-order operation show that the authorities took appropriate care to ensure that any risk to the life of Carlo Giuliani was minimised and that they were not negligent in their choice of action (see Andronicou and Constantinou, cited above, §§ 181-82).
231. In general terms, the Court considers that when a State agrees to host an international event entailing a very high level of risk, it must take the appropriate security measures and deploy every effort to ensure that order is maintained. Hence, it is incumbent upon it to prevent disturbances which could lead to violent incidents. If such incidents should nevertheless occur, the authorities must exercise care in responding to the violence, in order to minimise the risk of lethal force being used. At the same time, the State has a duty to ensure that the demonstrations organised in connection with the event pass off smoothly, while safeguarding, inter alia, the rights guaranteed by Articles 10 and 11 of the Convention.
232. In the instant case the Italian authorities were dealing with a G8 summit during which they had to ensure the safety of the Heads of State and accompanying officials, the inhabitants of Genoa and the thousands of demonstrators who were expected to turn up. As regards the planning and organisation of the event, the case file shows that the prefect of Genoa had put in place measures aimed at limiting access to the sensitive areas of the city in a bid to ensure the safety of the participants in the G8 summit and prevent possible attacks and violence. Furthermore, in view of the importance of the event, the size of the city and the very large number of demonstrators expected, considerable numbers of law-enforcement officers had been drafted in to Genoa a few days ahead of the summit. On the eve of 20 July 2001, the persons in charge of the security arrangements drew up a strategy for the following day in the knowledge that they were dealing with a large-scale operation and that they must attempt to prevent any disturbances on the part of the demonstrators.
233. The Court must seek to establish whether the death of Carlo Giuliani was directly related to possible shortcomings affecting the preparation and conduct of the operation.
234. The shortcomings identified by the applicants included: the communications system put in place, which did not enable members of the different law-enforcement agencies to communicate directly with one another; the failure to circulate adequately the service order for 20 July 2001, as a result of which the law-enforcement agencies attacked the Tute bianche march, not realising that it had been authorised; and the lack of coordination between the law-enforcement agencies on the ground.
235. As regards the conduct of the operation, it is not disputed that the carabinieri attacked the authorised Tute bianche march. The Court notes in that regard that the Genoa District Court, when called upon to examine this episode in detail during the “trial of the twenty-five”, in which an appeal is pending, held at first instance that the actions of the carabinieri with regard to the attack in question had been unlawful and arbitrary.
Il testo integrale è presente al seguente URL: http://www.cortedicassazione.it/Notizie/GiurisprudenzaComunitaria/CorteEuropea/Scheda.asp?ID=726