GIULIANI AND GAGGIO v. ITALY JUDGMENT
57
(b) Application of these principles to the present case
211. The Court notes that the Genoa investigating judge took the view
that the legitimacy of the use of force by M.P. should be assessed in the
light of Articles 52 and 53 of the CC. It therefore considers that these
provisions constituted, in the instant case, the legal framework defining the
circumstances in which the use of firearms was authorised.
212. The first of these provisions concerns the ground of justification of
self-defence, a common concept in the legal systems of the Contracting
States. It refers to the “need” for defensive action and the “real” nature of
the danger, and requires the defensive response to be proportionate to the
attack (see paragraph 144 above). Even though the terms used are not
identical, this provision echoes the wording of Article 2 of the Convention
and contains the elements required by the Court's case-law.
213. Although Article 53 of the CC is couched in vaguer terms, it
nevertheless refers to the person concerned being “obliged” to act in order
to repel an act of violence (see paragraph 143 above).
214. It is true that from a purely semantic viewpoint the “need”
mentioned in the Italian legislation appears to refer simply to the existence
of a pressing need, whereas “absolute necessity” for the purposes of the
Convention requires that, where different means are available to achieve the
same aim, the means which entails the least danger to the lives of others
must be chosen. However, this is a difference in the wording of the law
which can be overcome by the interpretation of the domestic courts. As is
clear from the decision to discontinue the case, the Italian courts have
interpreted Article 52 of the CC as authorising the use of lethal force only as
a last resort where other, less damaging, responses would not suffice to
counter the danger (see paragraph 101 above, which mentions the references
made by the Genoa investigating judge to the Court of Cassation's case-law
in this sphere).
215. It follows that the differences between the standards laid down and
the term “absolutely necessary” in Article 2 § 2 are not sufficient to
conclude on this basis alone that no appropriate domestic legal framework
existed (see Perk and Others v. Turkey, no. 50739/99, § 60, 28 March 2006,
and Bakan, cited above, § 51; see also, conversely, Nachova and Others,
cited above, §§ 96-102).
216. The applicants next complained of the fact that the
law-enforcement agencies had not been equipped with non-lethal weapons,
and in particular with guns firing rubber bullets. However, the Court notes
that the officers on the ground had available to them means of dispersing
and controlling the crowd which were not life-threatening, in the form of
tear gas (see, conversely, Güleç, cited above, § 71, and Şimşek, cited above,
§§ 108 and 111). In general terms, there is room for debate as to whether
law-enforcement personnel should also be issued with other equipment of
this type, such as water cannons and guns using non-lethal ammunition.
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