GIULIANI AND GAGGIO v. ITALY JUDGMENT
55
(ii) Absence in Italian law of adequate provisions governing the use of lethal
weapons during demonstrations
202. The applicants observed that the relevant provisions on the use of
force by law-enforcement personnel were Article 53 of the CC and
Article 24 of the Public Safety Code (see paragraphs 143 and 146 above).
Those provisions, enacted in 1930 and 1931, during the Fascist era, were
not compatible with more recent international standards or with liberal legal
principles. They were symptomatic of the authoritarianism that had
prevailed at that time. In particular, the concepts of “necessity” legitimising
the use of weapons and “use of force” were not equivalent to the principles
developed by Strasbourg case-law, which was based on “absolute
necessity”.
203. Furthermore, according to Article 52 of the CC, self-defence
applied where “the defensive response [was] proportionate to the attack”.
This was in no way equivalent to the expressions “strictly unavoidable in
order to protect life” and “strictly proportionate [to the circumstances]”
which featured in the Court's case-law.
204. In addition, there were no clear regulations in Italy conforming to
international standards concerning the use of firearms. None of the service
instructions from the Genoa questore submitted by the Government had
dealt with this issue. The applicants referred to the UN Principles (see
paragraph 154 above), and in particular to the obligation for governments
and law-enforcement agencies to adopt and implement rules and regulations
in this sphere (paragraph 1). They further referred to paragraph 11, which
specified the required content of such rules and regulations.
(b) The Government
205. The Government observed first of all that Italian law did not permit
the use of rubber bullets. The latter were liable to cause loss of life if fired
from a distance of less than fifty metres (the Government referred to
Kathleen Stewart, cited above). In the instant case the distance between
M.P. and Carlo Giuliani had been less than one metre, which suggested that
even a rubber bullet would have proved fatal. The experiments with
“non-lethal” weapons and ammunition conducted in the 1980s had been
suspended following incidents which demonstrated that they were capable
of killing or causing very serious injury. Furthermore, rubber bullets would
encourage officers to use weapons in the mistaken belief that they would
not cause harm.
206. In any event, weapons with live ammunition were designed for
personal defence in the event of imminent and serious danger and were not
used for public-order purposes: law-enforcement personnel in Italy did not
fire on crowds, either with live rounds or with rubber bullets. Non-lethal
weapons were designed for use against large crowds in order to counter a
mass attack by demonstrators or disperse them. In the instant case, the
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