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GIULIANI AND GAGGIO v. ITALY JUDGMENT – SEPARATE OPINIONS
training of the law-enforcement personnel, disclose real and serious
problems in the maintenance of public order during the G8 summit. In our
opinion, these shortcomings should be regarded as linked to the death of
Carlo Giuliani. Had the necessary measures been taken, the chances of the
demonstrators' attack on the jeep ending so tragically could have been
significantly reduced.
13. In relation to the procedural aspect of Article 2 of the Convention,
two questions arise. The first concerns the issue whether the conditions in
which the autopsy and the cremation of the body were carried out
undermined the effectiveness of the investigation, while the second relates
to the decision not to institute proceedings against the police officials.
14. The circumstances surrounding the autopsy disclose failings
imputable to the authorities. First of all, the applicants were given notice
very late of this fundamental step in the investigation, making it virtually
impossible for them to appoint an expert of their choosing. Furthermore, as
the prosecuting authorities themselves stressed, the expert report was
“superficial”, the doctors having omitted, in particular, to extract and record
a crucial piece of evidence, namely the fragment of bullet lodged in the
victim's head. Of course, there is no certainty that any tests carried out on
the fragment would have yielded a definitive answer to the question whether
the fatal bullet had been deflected by an object before hitting the applicants'
son. Nevertheless, it was not beyond the bounds of possibility that they
might have shed considerable light on the matter (the way in which the
fragment was deformed, for instance, or the presence of traces of material
might have helped to reconstruct its trajectory). Moreover, it is common
practice in conducting autopsies to extract and record any object found in
the body which might have contributed to the person's death.
One of the experts, Mr Salvi, stated at the “trial of the twenty-five” that
the fragment in question had been very small and very difficult to recover
from the mass of brain tissue and, above all, was of no use for the purposes
of the ballistics tests. Be that as it may, it was up to the forensic experts to
undertake the necessary efforts to record any object capable of clarifying the
circumstances of the death and lethal act in a homicide case that had
attracted an exceptional degree of media attention. The experts' assumption
that the fragment was of no relevance for ballistics purposes proved,
moreover, to be mistaken: in view of M.P.'s statements it was vital to
establish whether he had fired upwards with the aim of frightening off his
assailants or at chest height with the aim of hitting them or accepting the
risk of killing them.
In the light of the foregoing, we believe that the conditions in which the
autopsy was carried out gave rise to a violation of Article 2 of the
Convention in its procedural aspect.
15. The Government judged the applicants' conduct to be “ambiguous”.
The applicants, so the Government argued, had been aware that the results
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