<nettime> G8 summit in Genoa from 19 to 21 July 2001, Giuliani and Gaggio v. Italy (Eur. Ct. H.R. May 28, 2009)

[Heiko Recktenwald <heikorecktenwald@googlemail.com>]

Here is the decision of the European Court of Human Rights, an organ of
the COE, the other  body, some money, some visible victory,  but see
yourself:

http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=853404&portal=hbkm&source=externalbydocnumber&tabl

and here is the press release:

628

25.8.2009

Press release issued by the Registrar

CHAMBER JUDGMENT
GIULIANI AND GAGGIO v. ITALY

The European Court of Human Rights has today notified in writing its
Chamber judgment1 in the case of Giuliani and Gaggio v. Italy
(application no. 23458/02). The Court held

-      unanimously that there had been no violation of Article 2 (right
to life) of the European Convention on Human Rights as regards the
excessive use of force;

-      by five votes to two that there had been no violation of Article
2 as regards the Stateâs positive obligations to protect life;

-      by four votes to three that there had been a violation of Article
2 as regards the procedural obligations under that Article; and

-      unanimously that there had been no violation of Article 38
(examination of the case).

Under Article 41 (just satisfaction) of the Convention, the Court
awarded the first two applicants 15,000 euros (EUR) each and the third
applicant EUR 10,000 for non-pecuniary damage.

(The judgment is available in English and French).

1.  Principal facts

The applicants, Giuliano Giuliani, his wife Adelaide Gaggio and their
daughter Elena Giuliani, are Italian nationals who were born in 1938,
1944 and 1972 respectively and live in Genoa and Milan (Italy).

The application concerns the death of the applicantsâ son and brother,
Carlo Giuliani, while he was taking part in clashes during the G8 summit
in Genoa from 19 to 21 July 2001.

On 20 July, during an authorised demonstration, there were extremely
violent clashes between anti-globalisation militants and law-enforcement
officers. At around 5 p.m., under pressure from the demonstrators, a
group of about 50 carabinieri withdrew on foot, leaving two vehicles
exposed. One of them, with three carabinieri inside, remained stuck on
Piazza Alimonda. It 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, who had been
injured, drew his firearm and, after giving a warning, fired two shots
outside the vehicle. Carlo Giuliani, who was wearing a balaclava and
playing an active part in the attack, was fatally wounded by a bullet in
his face. In an attempt to move the vehicle away, the driver twice drove
over the young manâs unconscious body. When the demonstrators had been
dispersed, a doctor arrived at the scene and pronounced Carlo Giuliani dead.

An investigation was opened immediately by the Italian authorities.
Criminal proceedings were instituted against the officer who had fired
the shots and the driver of the vehicle for intentional homicide. An
autopsy performed within 24 hours of the death revealed that the death
had been caused by the shot and not by the attempts to drive the vehicle
away. The forensic expert found that the shot had been fired at a
downward angle.

At the public prosecutorâs request three expert reports were prepared.
The authors of the third report, submitted in June 2002, deplored the
fact that it had been impossible to examine the body, since the public
prosecutor had in the meantime authorised the family to have it
cremated. They concluded that the bullet had been fired upwards by the
carabiniere but had been deflected by a stone thrown at the vehicle by
another demonstrator.

On 5 May 2003 the investigating judge discontinued the proceedings. She
found that the driver of the vehicle, whose actions had resulted only in
bruising, could not be held responsible for the killing as he had been
unable to see Carlo Giuliani, given the confusion prevailing around the
vehicle. As to the officer who had fired the fatal shot, the judge took
the view that he had fired into the air without intent to kill and that
he had in any event acted in self-defence in response to the violent
attack on him and his colleagues.

2.  Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 18
June 2002. A hearing was held in the Human Rights Building, Strasbourg,
on 5 December 2006 and the application was declared admissible on 6
February 2007.

Judgment was given by a Chamber of seven judges, composed as follows:

Nicolas Bratza (the United Kingdom), President,
Josep Casadevall (Andorra),
Giovanni Bonello (Malta),
Vladimiro Zagrebelsky (Italy),
Lech Garlicki (Poland),
Ljiljana MijoviÄ (Bosnia and Herzegovina),
JÃn Åikuta (Slovakia), judges,
 
and also Lawrence Early, Section Registrar.

3.  Summary of the judgment2

Complaints

Relying on Article 2, the applicants alleged that Carlo Giulianiâs death
had been caused by excessive use of force and that the organisation of
the operations to maintain and restore public order had been inadequate.
In addition, they argued that the failure to provide immediate
assistance amounted to a violation of Articles 2 and 3 (prohibition of
inhuman treatment).

The applicants further complained, under Articles 2, 6 (right to a fair
hearing) and 13 (right to an effective remedy), that there had not been
an effective investigation into their close relativeâs death.

Lastly, they alleged that the Italian Government had breached Article 38
of the Convention (examination of the case) by omitting to provide
information to the Court or by producing false information.

Decision of the Court

Article 2

Excessive use of force

The Court first reiterated the general principles established in its
case-law concerning Article 2. Next, on the basis of the evidence
produced by the parties, it analysed the reasons behind the
investigating judgeâs decision to discontinue the proceedings. In this
connection it noted that the carabiniere who had fired the shots had
been confronted with a group of demonstrators carrying out a violent
attack on the vehicle he was in, that he had issued warnings, holding
his weapon in such a way that it was clearly visible, and that he had
fired only when the attack had continued. The Court agreed with the
investigating judge that the use of lethal force had not exceeded the
limits of what was absolutely necessary in order to avert what the
carabiniere had honestly perceived to be a real and imminent danger to
his life and the lives of his colleagues. It further found that it was
not necessary to examine in abstracto the compatibility with Article 2
of the applicable legislative provisions on the use of weapons by
law-enforcement officers, as the situation under consideration had
involved an individual decision taken in a state of panic. Accordingly,
there had been no disproportionate use of force and thus no violation of
Article 2 in this regard.

Compliance with positive obligation to protect life

In general terms, the Court observed that when a State hosted an
international event entailing a very high level of risk, it had a duty
to take all the appropriate security measures, while also safeguarding
any demonstratorsâ rights to freedom of expression and assembly. In the
present case the Court had to consider whether in planning and directing
the public-order operation the Italian authorities had minimised the
risk of lethal force being used. In that connection it noted that,
according to the applicants, there had been a number of shortcomings in
the organisation of the operation and that no investigation at domestic
level had shed any light on those allegations. In the absence of such an
investigation, and bearing in mind that the operation had been very
broad-ranging and had placed the law-enforcement agencies under enormous
strain, the Court was unable to establish the existence of a direct and
immediate link between any shortcomings in the planning of the operation
and the death of Carlo Giuliani. In addition, the Court observed that
after the shots had been fired, the police officers present on Piazza
Alimonda had immediately called the emergency services. It was therefore
not established that the Italian authorities had failed to comply with
their positive obligations to protect Carlo Giulianiâs life.

Compliance with procedural obligations under Article 2

The Court noted, firstly, that the autopsy performed on Carlo Giulianiâs
body 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 victimâs skull. Moreover, even before
he had received the results of the autopsy, the public prosecutor had
authorised the Giuliani family to proceed prematurely with their close
relativeâs cremation, thereby rendering it impossible to conduct any
further analyses. The Court further considered that the domestic
investigation had concerned only the precise circumstances of the
incident, being confined to examining whether those directly involved
should be held responsible, without seeking to identify any shortcomings
in the planning and management of the public-order operations. Italy had
therefore not complied with its procedural obligations in connection
with the death of Carlo Giuliani.

Articles 3, 6 and 13

The applicants alleged that the act of driving the vehicle over Carlo
Giulianiâs body and the failure to provide immediate assistance had
caused him suffering amounting to inhuman and degrading treatment. The
Court considered that it could not be inferred from the law-enforcement
officersâ conduct that they had had any intention to inflict suffering,
and found that, having regard to the circumstances of the present case,
the complaint fell to be examined solely under Article 2. Furthermore,
in view of its finding of a violation of Article 2 in its procedural
aspect, the Court considered that it was not necessary to consider the
case separately under Articles 6 and 13.

Article 38

Contrary to what the applicants had maintained, the Court considered
that the Government had cooperated sufficiently, allowing it to conduct
an appropriate examination of the case. Italy had therefore not failed
to comply with its obligations under Article 38.

Judge Bratza, joined by Judge Åikuta, expressed a partly dissenting
opinion. Judges Casadevall and Garlicki expressed a joint partly
dissenting opinion. Judge Zagrebelsky also expressed a partly dissenting
opinion. The opinions are annexed to the judgment.

***

The Courtâs judgments are accessible on its Internet site
(http://www.echr.coe.int).

Press contacts

Stefano Piedimonte (telephone: 00 33 (0)3 90 21 42 04)
Tracey Turner-Tretz (telephone: 00 33 (0)3 88 41 35 30)
Kristina Pencheva-Malinowski (telephone: 00 33 (0)3 88 41 35 70)
CÃline Menu-Lange (telephone: 00 33 (0)3 90 21 58 77)
FrÃdÃric Dolt (telephone: 00 33 (0)3 90 21 53 39)

1 Under Article 43 of the Convention, within three months from the date
of a Chamber judgment, any party to the case may, in exceptional cases,
request that the case be referred to the 17-member Grand Chamber of the
Court. In that event, a panel of five judges considers whether the case
raises a serious question affecting the interpretation or application of
the Convention or its protocols, or a serious issue of general
importance, in which case the Grand Chamber will deliver a final
judgment. If no such question or issue arises, the panel will reject the
request, at which point the judgment becomes final. Otherwise Chamber
judgments become final on the expiry of the three-month period or
earlier if the parties declare that they do not intend to make a request
to refer.

2 This summary by the Registry does not bind the Court.


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