Italy cleared of human rights violations in ECtHR ruling on Giuliani G8 shooting

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On 24 March 2011, the Grand Chamber of the European Court on Human Rights in Strasbourg found that Italy did not contravene articles 2, 3, 6, 13 and 38 of the European Convention on Human Rights when Carlo Giuliani was shot dead by a carabiniere [police force with military status] during protests against the G8 summit in Genoa at around 5 p.m. on 20 July 2001. The application by Giuliani's parents and sister alleged breaches involving use of excessive and lethal force, the positive obligation to protect life, the organisation and planning of policing operations during the G8 summit, procedural aspects concerning the autopsy and cremation of Giuliani's body, the right to an exhaustive investigation and effective remedy and the Italian government's duty to assist the investigation.

The Grand Chamber's final decision resulted from the applicants' appeal for it to review the ruling by a Chamber of the Fourth Section of the European Court on Human Rights (ECtHR) on 25 August 2009 which had found one breach with regards to procedural aspects of art. 2 of the Convention (ECHR). It resulted from the failure to extract a metal fragment of the bullet from Giuliani's head during the autopsy that would have been important "for the purpose of the ballistic analysis and for the reconstruction of events", while doctors who performed the autopsy had not "explicitly stated whether the shot had been direct", leaving crucial questions unanswered and resulting in the public prosecution office describing the autopsy report as "superficial". These problems were compounded by authorisation for the body's cremation granted by the public prosecutor's office before the autopsy report was released, and the short notice that Carlo Giuliani's family were given to appoint an expert of choice which prevented them from doing so.

The reconstruction of the killing in question was as follows: Mario Placanica, a 20-year old carabiniere conscript who had been in the force for ten months and admitted to firing his regulation Beretta pistol twice, was in the back of a Defender jeep in Piazza Alimonda that came under attack from protestors throwing objects at it after stalling when its driver tried to get away from the scene, obstructed by an overturned refused container. Placanica was on board in the rear side of the vehicle with another officer because he had been deemed unfit to continue service as he was suffering from the effect of missiles striking him and the teargas grenades he had fired. As the vehicle came under attack, he shouted at demonstrators "to leave or he would kill them", and then fired two shots, one of which killed Giuliani, who wore a balaclava and held a fire extinguisher that he looked like he wanted to throw into the jeep. The jeep then drove over Giuliani's body twice, once in reverse and then advancing to get away. The jeeps had followed a charge by a unit of carabinieri to which they were attached that was repelled by demonstrators, leaving one of the vehicles stranded.

The ruling by the Grand Chamber was based on some key concerns. Firstly, whether the use of force had been excessive and whether the use of potentially lethal force was justified. It deemed (by 13 votes to 4) that the attack on the jeep and Giuliani's apparent intentions meant that Placanica could reasonably believe that his life and integrity, and those of his colleagues, were in danger, which "served as justification for recourse to a potentially lethal means of defence such as the firing of shots" (point 191). Some grey areas concerned the direction in which the shot was fired (upwards as a warning shot or directly in the direction of its target), the likelihood of an "intermediate object theory" whereby the bullet may have struck Giuliani following a ricochet with an object thrown at the vehicle, the impossibility of verifying them as a result of the cremation of Giuliani's body before the autopsy report was released, and whether Giuliani had been within Placanica's field of vision when the shot was fired. Secondly, the matters of whether the Italian "State had taken the necessary legislative, administrative and regulatory measures to reduce as far as possible the adverse consequences of the use of force" and whether the "organisation and planning of the policing operations had not been compatible with the obligation to protect life", had to be resolved.

The applicants argued that the failure to equip officers with "non-lethal weapons" and inadequate provisions in Italian law governing the use of lethal weapons during demonstrations had played a part in the killing. The Grand Chamber found that in spite of semantic differences between the Italian and international provisions allowing the use of force, they "are not sufficient to conclude… that no appropriate legal framework existed". The argument concerning the lack of "non-lethal" alternatives was undermined by the availability of means such as teargas and rendered "not relevant" by the fact that "a death occurred not in the course of an operation to disperse demonstrators and control a crowd of marchers, but during a sudden and violent attack which… posed an imminent and serious threat to the lives of three carabinieri". Thus, there was no violation of article 2 "in its substantive aspect" in terms of the legislative framework on the use of lethal force or regarding the weapons issued to law enforcement officers.

One key issue concerned an unlawful and arbitrary attack by carabinieri against a march by the Tute Bianche (White Overalls) which had sparked large-scale clashes one and a half hours before the incidents in Piazza Alimonda. While the demonstrators' resistance in its immediate aftermath was "justified" by this, "After 3.30 p.m. although the demonstrators may still have felt a sense of abuse and injustice, their conduct had no longer been defensive but had been driven by a desire for revenge: it was therefore unjustified and punishable". In effect, a number of issues including the use of non-regulations batons by police officers were deemed irrelevant as the attack on the jeep was treated as an isolated incident.

In relation to the organisation and planning of the policing of the event, the applicants highlighted the absence of a clear chain of command, "commanding officers" not having been correctly informed of the decision to authorise the Tute Bianche march which the carabinieri attacked, a communications system that did not allow direct information exchanges between the police and carabinieri, and the fact that a jeep carrying two injured officers did not take them to hospital, but rather, it remained in Piazza Alimonda during a charge by the carabinieri, with tragic consequences. These "anomalies" are deemed to have "led to the critical situation in which [Placanica] found himself and which prompted him to resort to lethal force". This was particularly true as a panic-stricken and injured officer deemed to be unfit to remain on duty remained in the midst of disturbances and had a loaded gun as his only means of defence other than a shield. The officer's inexperience, the fact that training was limited and "amounted in substance to combat training", that three quarters of the carabinieri deployed were either conscripts or auxiliaries, that officers who were close to the scene did not intervene in defence of the jeep, which drove over Giuliani's body twice after he was shot but was still alive are other issues that the applicants stressed. The government's reply sought to detach events in Piazza Alimonda from the earlier charge against an authorised march, highlighting that the sheer number of officers deployed (18,000) meant that it was unrealistic to expect them all to be from elite units and that the attack on the Defender was "the result of a trap set by demonstrators rather than of any malfunction". The Grand Chamber dismissed the allegations, accepting the separation of events in Piazza Alimonda from earlier incidents, and accepting that Placanica should have kept his regulation weapon and that the jeep did not necessarily have to take the two injured officers straight to hospital.

Allegations concerning procedural aspects arising out of art. 2 concerned the autopsy and cremation of the body (see above), which the ECtHR Chamber that first examined the case found to be in breach of the ECHR because the metal fragment found by a scan on Giuliani's head was not extracted although it "would have important for "ballistic analysis and for the reconstruction of events". The doctors who performed the autopsy failed to state "whether the shot had been direct", the public prosecutor's office described the autopsy report as "superficial", and the shortcomings were aggravated by the fact that the cremation of Giuliani's body was authorised before the autopsy report was released. Other concerns in this area concerned the failure to instruct proceedings to establish possible liability on the part of other police officers, with the plaintiffs complaining that Placanica's superior officers had all been promoted (as had also happened to officers suspected of unlawful arrest and violence) and to address the overall context. The investigation was deemed to have "lacked impartiality and independence" by the applicants who stressed a lack of coherence in the findings of different ballistics reports, the autopsy report's finding that the shot was downwards and direct, the appointment of an expert who had previously justified Placanica's actions as a "clear and wholly justified defensive reaction" in a specialist magazine, and whose forensic examination "had given rise to the intermediate object theory". The carabinieri's involvement in key initial stages in the investigation was also deemed important by the Giuliani family. In this instance, the Grand Chamber overturned the only breach that the previous ECtHR ruling had appreciated, because "it has not been established by the applicants that the investigation lacked impartiality and independence or that the branch of the police which performed certain steps … was implicated … to such an extent that the entire investigation should have been entrusted to the revenue police [Guardia di Finanza]", as the applicants had argued. Moreover, Giuliani's family had agreed for Carlo's body to be cremated.

Allegations concerning art. 3 of the ECHR ("inhuman or degrading treatment or punishment") were dismissed unanimously by the Grand Chamber, confirming the previous Chamber's findings, as were those concerning art. 6 ("fair and public hearing within a reasonable time by an independent and impartial tribunal"), while art. 13 ("effective remedy before a national authority") was found not to have been violated by 13 votes to four, and nor was art. 38 (cooperation by the "High Contracting Parties" - states), unanimously, because "although the information provided by the Government did not deal exhaustively" with a number of points, "the incomplete nature of that information had not prevented the Court from examining the case".

Dissenting opinions

Partly dissenting opinions were issued concerning the decisions on the substantive and procedural aspects of art. 2, as seven judges argued that there were shortcomings regarding Italy's positive obligation to protect life in an event that it knew to be "high-risk" due to the mass demonstrations that had been planned. The lack of provisions for a differentiated use of force and weapons involving non-lethal weapons and adequate self-defensive equipment was highlighted, as were problems in the planning and management of policing operations. Placanica was deemed to have received inadequate training as regards public order operations and "it is difficult to accept that he did not receive more support from his superior officers", without being given special attention when he was judged unfit for service due to his physical and mental state, but he was nonetheless left in possession of loaded weapon, in a vehicle that was not adequately protected as it was not armoured and had no protective lateral grilles. The dissenting judges stressed that problems in the framework governing the use of firearms, "coupled" with shortcomings in the preparation of policing operations and officer training "could be linked directly to the death".

As regards procedural aspects, failings are identified including late notice of autopsy proceedings to the applicants which made it "virtually impossible for them to appoint an expert", the failure to extract the fragment of the bullet lodged in Giuliani's head (a common practice when conducting autopsies which may have shed light on the "vital" matter of whether the shot was fired upwards or at chest height, accepting the risk of killing). Further, they argued that the Grand Chamber should have "upheld and reinforced the Chamber's finding that the circumstances surrounding the autopsy and cremation of the applicants' son's body were in breach of Article 2 in its procedural aspect". The dissenting judges also complained about the fact that the Italian investigation of the case "was confined to the exact circumstances of the incident", without analysing other aspects or malfunctions in the operation that may have led to disciplinary action being taken against other officers who may have had indirect responsibilities.
Four of the Grand Chamber judges also dissented as to the finding that "the use of lethal force was 'absolutely necessary'", arguing that Placanica's statement that "he had not aimed at anyone and that no one had been within his field of vision at the moment he fired the shots" runs counter to the rationale for claiming self-defence, which must be based on a "real danger". If the carabiniere was defending himself from the attack against the jeep in general rather than Carlo Giuliani's actions, only shots fired into the air to disperse rather than eliminate attackers could be deemed "proportionate". Thus, it was essential to establish the bullet's trajectory, whereas the two parties provide opposite interpretations: the applicants claim that the shot was at chest height, while the Italian authorities claim it was fired upwards and deflected. The judges also refer to some photographs of the incident: one from a few seconds earlier "shows the gun positioned at chest height… at an angle compatible with the wound sustained by Carlo Giuliani". They are not convinced by the reconstruction that the "intermediate object" theory would entail, as it involves three concomitant scenarios:

"a) M.P. raised his gun just as he fired the shot: b) the bullet richocheted off a flying object: c) the angle of collision between the object and the bullet was such as to make the bullet strike the victim very close to where it would have struck him had the gun not changed position". Moreover, noting that photographs taken just before the shot was fired do not show objects in the air, ruling out that it was a moment when intensive throwing of missiles was taking place, the dissenting judges argued that "the statistical probability of any of these three scenarios having occurred is low: the likelihood of all three occurring in rapid succession is smaller still". Thus, they conclude that there was a violation of the substantive aspect of art. 2.

Four dissenting judges also disagreed with the decision that there was no violation of the right to an effective remedy under art. 13 of the ECHR, because the applicants "were unable to join the criminal proceedings as civil parties" because the case was discontinued without any charges being brought.

Grand Chamber, Case of Giuliani and Gaggio v. Italy (Application no. 23458/02), Judgement, 24.3.2011, Strasbourg.

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