96
GIULIANI AND GAGGIO v. ITALY JUDGMENT – SEPARATE OPINIONS
and against whom proceedings were brought. However, those proceedings,
conducted by the prosecuting authorities, ended with a request to
discontinue the case on the basis of Articles 52 and 53 of the Criminal Code
(see paragraphs 67 et seq. of the judgment), which was granted by the
Genoa investigating judge (see paragraphs 82 et seq. of the judgment), thus
excluding any possibility of adversarial proceedings before a judge.
20. It is true that extending the procedural obligations arising out of
Article 2 to the point of requiring other individuals to be charged would
impose an excessive and impracticable burden on the respondent State and
would be liable to be contrary to Article 7 of the Convention. The fact
remains, however, that an investigation capable of leading to the
identification and, possibly, the punishment of the persons responsible could
also be disciplinary in character. In this regard it is astonishing that, in the
wake of the death of a demonstrator following the use of lethal force by an
agent of the State (an exceedingly rare occurrence in Italy), the Government
should acknowledge that no administrative or disciplinary investigation was
commenced concerning the representatives of the law-enforcement
agencies. Admittedly, any such investigation might have concluded that
there was no evidence of any disciplinary offence in the training and support
given to M.P. or, more broadly, in the organisation of the policing
operations. However, it might equally have shed light on the circumstances
surrounding some crucial aspects of the case which have unfortunately
remained obscure (in particular, the criteria used in selecting and training
the officers conducting the public-order operations at the G8 and the reasons
why M.P.'s personal situation was not taken duly into account).
21. The fact that no disciplinary proceedings of any kind were instituted
against the carabinieri appears to have been based on the preconceived idea
that despite the tragic turn taken by events there was no criticism to be made
of the manner in which the officers had been deployed on the ground or the
way in which orders had been given throughout the chain of command.
However, it is clear from all the arguments put forward by the Government
in this case that the dangers linked to the rioting and the risks facing the
law-enforcement officers had been largely foreseeable. The approach taken
is difficult to reconcile with the procedural obligations arising out of
Article 2 of the Convention.
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