GIULIANI AND GAGGIO v. ITALY JUDGMENT
17
between M.P.'s actions and Carlo Giuliani's death. Given that the link
remained, the question was whether M.P. had acted in self-defence.
74. It had been proven that the physical integrity of the jeep's occupants
had been under threat and that M.P. had been “responding” in the face of
danger. That response had to be examined in terms of both its necessity and
its proportionality, “the latter aspect being the more delicate”.
75. The public prosecutor took the view that M.P. had had no other
option and could not have been expected to act differently, since “the jeep
was surrounded by demonstrators [and] the physical aggression against the
occupants was patent and virulent”. M.P. had been justified in perceiving
his life to be in danger. The pistol had been a tool capable of putting a stop
to the attack, and M.P. could not be criticised for the equipment issued to
him. He could not be expected to refrain from using his weapon and submit
to an attack liable to endanger his physical integrity. These considerations
justified a decision to discontinue the case.
2. The applicants' objection
76. On 10 December 2002 the applicants lodged an objection against the
public prosecutor's request to discontinue the proceedings. They alleged
that, since the prosecuting authorities themselves had acknowledged that the
investigation had been flawed and raised questions which had not been
answered with certainty, adversarial proceedings were essential in order to
arrive at the truth. In their view, it was impossible to argue simultaneously
that M.P. had fired into the air and that he had acted in self-defence,
particularly since he had said that he could not see Carlo Giuliani when he
had fired the shots.
77. The applicants further remarked that the intermediate object theory,
which they disputed, had been put forward one year after the events and was
based on pure supposition not backed up by objective evidence. There were
other possible explanations.
78. The applicants also observed that, according to the evidence in the
file, Carlo Giuliani had still been alive after the jeep had driven over his
body. They stressed that the autopsy report, which found that no appreciable
injuries had been caused by the jeep driving over the body, had been
described by the public prosecutor as superficial; they also criticised the
decision to entrust a number of investigative measures to the carabinieri.
79. It followed that M.P. and F.C. should have been committed for trial.
In the alternative, the applicants requested that further investigative
measures be undertaken, in particular:
(a) that a forensic report be prepared aimed at establishing the causes
and the time of Carlo Giuliani's death, in order to ascertain in particular
whether he had still been alive when the jeep drove over his body, and
afterwards;