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GIULIANI AND GAGGIO v. ITALY JUDGMENT – SEPARATE OPINIONS
provide pointers in this regard which it is now impossible to ignore. The
Preamble states that “[these] basic principles ..., which have been
formulated to assist Member States in their task of ensuring and promoting
the proper role of law enforcement officials, should be taken into account
and respected by Governments within the framework of their national
legislation and practice, and be brought to the attention of law enforcement
officials as well as other persons, such as judges, prosecutors, lawyers,
members of the executive branch and the legislature, and the public”.
5. As regards the use of firearms, paragraph 2 of the Principles is
crucial: “Governments and law enforcement agencies should develop a
range of means as broad as possible and equip law enforcement officials
with various types of weapons and ammunition that would allow for a
differentiated use of force and firearms. These should include the
development of non-lethal incapacitating weapons for use in appropriate
situations, with a view to increasingly restraining the application of means
capable of causing death or injury to persons. For the same purpose, it
should also be possible for law enforcement officials to be equipped with
self-defensive equipment such as shields, helmets, bullet-proof vests and
bullet-proof means of transportation, in order to decrease the need to use
weapons of any kind”.
6. Admittedly, in the particular circumstances of this case, given the
violence of the attack to which M.P. and his colleagues were subjected,
there is no guarantee that rubber bullets would have had a sufficient
deterrent effect to avert the danger posed by large numbers of demonstrators
wielding blunt instruments. The same may be true in many similar
situations with which the law-enforcement agencies are confronted. For that
reason we would not argue that the officers in the present case should have
been issued only with non-lethal weapons; the State was empowered to
decide that the law-enforcement personnel should also be equipped with
guns firing live ammunition. Nevertheless, one thing is certain: M.P. did not
have any alternative means of defence available to him. While he could
have fired into the air or at a different angle, he had no weapon with which
to defend himself other than the Beretta parabellum pistol.
7. Next, as regards the second aspect of the obligation to protect life
arising out of Article 2 of the Convention, namely the planning and
management of the policing operations, we believe that there was a lack of
organisation imputable to the State. In its judgment in Halis Akın v. Turkey
(no. 30304/02, § 24, 13 January 2009), the Court reiterated that “[i]n
keeping with the importance of this provision in a democratic society, [it]
must, in making its assessment, subject instances of the use of deliberate
lethal force to the most careful scrutiny, taking into consideration not only
the actions of the agents of the State who actually administer the force but
also all the surrounding circumstances including such matters as the
planning and control of the actions under examination”.
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