GIULIANI AND GAGGIO v. ITALY JUDGMENT – SEPARATE OPINIONS
91
JOINT PARTLY DISSENTING OPINION OF JUDGES
ROZAKIS, TULKENS, ZUPANČIČ, GYULUMYAN,
ZIEMELE, KALAYDJIEVA AND KARAKAŞ
(Translation)
We are unable to agree with the majority's conclusions concerning points
2, 3 and 4 of the operative provisions, according to which there has been no
violation of Article 2 of the Convention in its substantive and procedural
aspects.
1. As regards the substantive aspect, the State's positive obligation to
protect life under Article 2 of the Convention raises two main questions in
the instant case which, as we shall see, are closely linked. Firstly, did the
State take the necessary legislative, administrative and regulatory measures
to reduce as far as possible the risks and consequences of the use of force?
Secondly, were the planning, organisation and management of the policing
operations compatible with that obligation to protect life?
2. We further believe that the obligation to protect life has to be
considered in the specific context of the facts of the case: where a State
accepts the responsibility of organising a high-risk international event, that
obligation implies a duty to put in place the appropriate measures and
strategies to maintain law and order. In that connection, it cannot be argued
that the authorities were not aware of the possible dangers entailed in an
event such as the G8 summit. Moreover, the number of law-enforcement
officers deployed on the ground demonstrates this clearly (see
paragraph 255 of the judgment). In these circumstances, Article 2 of the
Convention cannot be interpreted or applied as if the case merely concerned
an isolated incident occurring in the course of accidental clashes, as the
majority suggest. In the case of mass demonstrations, which are becoming
more and more frequent in a globalised world, the obligation to protect the
right to life safeguarded by the Convention necessarily takes on another
dimension.
3. First of all, as regards the domestic legislative framework governing
the use of lethal force, which, under the terms of Article 2 of the
Convention, must be capable of protecting the lives of the demonstrators,
we observe shortcomings which played a decisive role in the death of the
applicants' son. The Government did not make reference to any specific
provisions governing the use of firearms during police operations, and
indeed observed that circulars had simply been issued by the senior
command of the carabinieri referring to the general provisions of the
Criminal Code (see paragraph 207 of the judgment).
4. The 1990 United Nations Basic Principles on the Use of Force and
Firearms by Law Enforcement Officials, which the judgment cites among
the relevant international materials (see paragraph 154 of the judgment),
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