46
GIULIANI AND GAGGIO v. ITALY JUDGMENT
163. Finally, the applicants submitted that M.P. had not issued clear
warnings of his intention to use his firearm and that some of the
photographs taken during the events showed a riot shield being used as
protection in place of one of the broken windows of the jeep.
(b) The Government
164. The Government argued 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 was to be found in the request for the proceedings to be
discontinued. In support of their assertions the Government referred to
Grams v. Germany ((dec.), no. 33677/96, ECHR 1999-VII) and 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.
165. There had been no intentional taking of life in the instant case, nor
had there been any “excessive use of force”. Furthermore, no causal link
existed between the shot fired by M.P. and the death of Carlo Giuliani.
Although the investigating judge, in her decision to discontinue the case,
had applied Articles 52 and 53 of the CC, she had not disregarded the
exceptional and unforeseeable circumstance whereby the shot had been
deflected following a collision with a stone, a circumstance which had been
assessed from the standpoint of proportionality. The Government inferred
from this that the decision to discontinue the proceedings had exonerated
M.P. on the ground that the causal link between the shot and Carlo
Giuliani's death had been broken by the collision between the bullet and the
stone and the deflection of the shot's trajectory.
166. In the view of the investigating judge, M.P. had acted on his own
initiative, in a state of panic and in a situation where he had valid reasons to
believe that there was a serious and imminent threat to his own life or
physical integrity. Furthermore, M.P. had not aimed at Carlo Giuliani or
anyone else. He had fired upwards, in a direction that entailed no risk of
striking someone. 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, in particular, to
Scavuzzo-Hager and Others v. Switzerland, no. 41773/98, §§ 58 and 60,
7 February 2006, and Kathleen Stewart v. the United Kingdom,
no. 10044/82, Commission decision of 10 July 1984, Decisions and Reports
(DR) 39).
167. Both parties' experts had agreed as to the fact that the bullet had
already been in fragments when it hit the victim. The possibilities advanced
by the applicants to explain why the bullet had fragmented – such as its
having been manipulated in order to increase its capacity to fragment, or the
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