CEDH · CASELAW;CLIN;ENG — 25 août 2009

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Italy - 23458/02 Judgment 25.8.2009 [Section IV] Article 2 Positive obligations Article 2-1 Life Article 2-2 Use of force Death of a demonstrator during public-order operations at a G8 summit: no violations Article 2-1 Effective investigation Failings of investigation into fatal shooting of a demonstrator by a member of the security forces at a G8 summit: violation [This case was referred to the Grand Chamber on 1 March 2010] Facts : The applicants are the parents and sister of Carlo Giuliani, who died while he was taking part in clashes at the G8   summit held in Genoa from 19 to 21   July 2001. During an authorised demonstration, extremely violent clashes broke out between anti-globalisation militants and law-enforcement officers. Under pressure from the demonstrators, a group of about fifty carabinieri withdrew on foot, leaving two vehicles exposed. One of them, with three carabinieri inside, was unable to move and was surrounded and violently attacked by a group of demonstrators, some of whom were armed with iron bars, pickaxes, stones and other blunt implements. One of the carabinieri , suffering the intoxicating effects of the tear-gas grenades he had fired earlier, had been given permission to get into the jeep to get away from the scene of the earlier clashes. Crouched down in the back of the jeep, injured and panicking, and defending himself on one side with a riot shield while shouting to the demonstrators to leave “or he would kill them”, he drew his firearm and, after giving a warning, fired two shots outside the vehicle. Carlo Giuliani was fatally wounded by a bullet in his face. In attempting to move the vehicle away, the driver twice drove over the young man’s motionless body. When the demonstrators had been dispersed, a doctor arrived at the scene and pronounced the victim dead. An investigation was opened immediately by the Italian authorities. Criminal proceedings for intentional homicide were instituted against the officer who had fired the shots and the driver of the vehicle. An autopsy performed within twenty-four hours of the death revealed that the victim had been killed by the bullet wound and not by the attempts to drive the vehicle away. The public prosecutor gave permission for Carlo Giuliani’s body to be cremated and ordered three expert reports. In 2003 the proceedings were discontinued by the investigating judge. Law – Article 2 (a) Allegedly excessive use of force – In the light of the investigation’s findings and in the absence of any other evidence to the contrary, the Court had no reason to doubt that the officer who fired the shots had honestly believed his life to be in danger; it took the view that he had 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. This was one of the circumstances enumerated in the second paragraph of Article   2 in which the use of lethal force could be legitimate; however, it went without saying that there had to be a balance between the aim and the means. The officer who fired the shot, using a powerful weapon, had run out of tear-gas grenades and there was no judicial finding to the effect that he had had a riot shield with which to defend himself. Before shooting, he had called out and had held his weapon in such a way that it was visible from outside the jeep. The officer had been confronted with a group of demonstrators conducting a violent attack on the vehicle he was in, who had ignored his warnings to leave. In the circumstances of the case the use of lethal force, although highly regrettable, had not exceeded the limits of what was absolutely necessary in order to avert what the officer honestly perceived to be a real and imminent threat to his life and the lives of his colleagues. In view of those considerations, there had been no disproportionate use of force. Conclusion : no violation (unanimously). (b)     Obligation to protect life – Firstly, the Court had to consider whether there was a direct link between possible shortcomings in the preparation and conduct of the operation carried out by the law-enforcement agencies and the death of Carlo Giuliani. In that connection the Court observed that the vehicle in which the officer who fired the shot was travelling had become blocked during the withdrawal of the carabinieri after they had attacked a group of particularly aggressive demonstrators. The police officers stationed nearby had not intervened to assist the occupants of the vehicle and the latter had perceived themselves to be in grave danger, with the result that one of them had made use of his firearm. A number of questions certainly needed to be asked: (i)   whether the officer who fired the shots, who had been in a particular state of mind induced by a high level of stress and panic, would have acted in that way if he had had the benefit of appropriate training and experience; (ii)   whether better coordination between the law-enforcement agencies present at the scene would have enabled the attack on the jeep to be warded off without claiming any victims and (iii)   lastly, and above all, whether the tragedy could have been prevented if care had been taken not to leave the unequipped jeep right in the middle of the clashes, particularly since there were injured officers on board who were still carrying weapons. The answers to those questions were not provided either by the investigation conducted at national level or by the other evidence in the file. Furthermore, unlike in some other cases, the risk of disturbances had been unpredictable and had depended on how the situation developed. Consequently, the operation had been very broad-ranging and the situation somewhat ill-defined. In addition, the events in question had occurred at the end of a long day of public-order operations during which the law-enforcement agencies had come under enormous pressure. In view of these considerations and the fact – which it deplored – that no domestic investigation had been conducted in that respect, the Court was unable to establish the existence of a direct and immediate link between the shortcomings that may have affected the preparation and conduct of the public-order operation and the death of Carlo Giuliani. As to the applicants’ allegation that, after Carlo Giuliani had fallen to the ground, the authorities had delayed summoning and organising assistance, there was nothing to indicate that the ambulance had arrived with undue delay in the circumstances. In view of these considerations, it was not established that the Italian authorities had failed in their duty to protect the life of Carlo Giuliani. Conclusion : no violation (five votes to two). (c)     Compliance with the procedural obligations arising out of Article   2 – An autopsy had been performed the day after Carlo Giuliani’s death by two doctors appointed by the public prosecutor’s office. However, this had not led to the determination of the precise trajectory of the fatal bullet or to the recovery of a metal fragment which a scan had clearly shown to be lodged in the victim’s skull. Furthermore, the bullets fired by the officer had not been found, nor was there any indication that attempts had been made to find them. The autopsy that had been carried out and the findings of the autopsy report could not be said to have been capable of providing the starting point for an effective subsequent investigation or of satisfying the minimum requirements of an investigation into a clear case of homicide, as they had left too many crucial questions unanswered. Those shortcomings were to be regarded as particularly serious given that Carlo Giuliani’s body had subsequently been released to the applicants and authorisation had been given for its cremation, thereby rendering it impossible to conduct any further analyses, in particular of the fragment of metal lodged in the body. It was also highly regrettable that the cremation of the body had been authorised well before the results of the autopsy were known, although the public prosecutor described the autopsy report as “superficial”. Given the shortcomings in the forensic examination and the fact that the body had not been preserved, it was not surprising that the judicial proceedings had culminated in a decision not to prosecute. Accordingly, the authorities had not conducted an adequate investigation into the circumstances of the death of Carlo Giuliani. Secondly, the domestic investigation had been confined to assessing the responsibility of the persons immediately involved. At no point had any attempt been made to examine the overall context and consider whether the authorities had planned and managed the public-order operations in such a way as to prevent incidents of the kind that caused the death of Carlo Giuliani. In particular, the investigation had not sought to establish why the officer who had fired the shot – whom his superior officers had judged 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 weapon and had been placed in a jeep which had no protection and which was cut off from the contingent it had been following. In other words, the investigation had not been adequate in that it had not sought to determine who had been responsible for that situation. Conclusion : violation (four votes to three). Article 41: EUR 15,000 to the victim’s parents and EUR   10,000 to his sister in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes