GIULIANI AND GAGGIO v. ITALY JUDGMENT – SEPARATE OPINIONS
95
of the autopsy ordered by the public prosecutor would not be known for
another sixty days. Concern to ensure that the examinations were carried out
in a professional and reliable manner might have prompted them either to
contest the lawfulness of the autopsy or to request that it be performed
again. Far from doing this, they had requested permission to cremate the
remains. In doing so they had known, or should have known, that if their
request was granted no further examination of the body would be possible.
If the applicants had wished to retain the option of further forensic
examination, according to the Government, they should have opted to have
their son buried.
16. It is our belief that a family dealing with such a tragic event cannot
be criticised for failing to weigh up carefully all the ramifications of a
request to have the remains returned to them, made immediately after their
son's death. Although the applicants requested permission to cremate the
body, the public prosecutor's office could have refused the request or
insisted that the cremation should not take place until the results of the
autopsy had been published. On the latter point it would have been
preferable for the forensic experts to be given a shorter deadline for
completion of their task. A period of sixty days for the preparation of a
report a few pages long in such a sensitive and widely publicised case seems
excessive.
17. In these circumstances we believe that the Grand Chamber should
have upheld and reinforced the Chamber's finding that the circumstances
surrounding the autopsy and the cremation of the applicants' son's body
were in breach of Article 2 in its procedural aspect.
18. The second question is whether the lack of an investigation aimed at
establishing possible liability on the part of certain police officials breached
the procedural obligations arising out of Article 2.
We have just concluded that there were a number of failings, imputable
to the Italian authorities, in terms of the support provided to M.P. and the
consideration of his particular situation during the G8 summit in Genoa, and
in terms of the organisation of the policing operations. This being so, was
there an obligation to institute investigations to elucidate these aspects of
the case? The domestic investigation in the instant case was confined to the
exact circumstances of the incident itself, examining only whether those
immediately involved should be held liable, without seeking to shed light on
possible shortcomings in the planning and management of the public-order
operations.
19. Of course we agree that it would be unreasonable to require a State
to institute a criminal investigation where no offence has been committed.
In line with the general principles of criminal law common to the
Contracting States, in the circumstances of the present case the only persons
who might have been held criminally responsible for the death of the
applicants' son were M.P. and F.C., who were placed under investigation
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