24
GIULIANI AND GAGGIO v. ITALY JUDGMENT
102. In the instant case M.P. had had only one means of countering the
attack: his firearm. He had made proportionate use of it, since before
shooting he had called out to the demonstrators to leave, in an attempt to put
a stop to their actions; he had then fired upwards and the bullet had hit the
victim as the result of a tragic twist of fate (per una tragica fatalità). Had he
wished to be sure of harming his assailants he would have fired through the
side windows of the jeep, next to which numerous demonstrators had
gathered. It followed that he had acted in self-defence. That being so, it was
of little relevance whether M.P. had had a partial view of Carlo Giuliani (as
the applicants' experts maintained and the prosecuting authorities' experts
considered possible) or whether, as seemed more likely, he had not seen
him and had fired as high in the air as his position would allow, accepting
the risk that the shot might hit somebody.
7. The accusations against F.C.
103. The investigating judge also considered that the evidence in the file
excluded any criminal responsibility on the part of F.C., given that, as
indicated by the forensic experts, Carlo Giuliani's death had undoubtedly
been caused within minutes by the pistol shot. The jeep's driving over the
victim's body had caused only bruising. In any event, owing to the confused
situation around the jeep, F.C. had not been able to see Carlo Giuliani or
observe that he had fallen to the ground.
8. Refusal of the applicants' requests for further investigation
104. The investigating judge refused all the applicants' requests for
further investigative measures to be taken (see paragraph 79 above). The
reasons for the refusal can be summarised as follows:
(a) with regard to the request for a forensic report to be prepared aimed
at establishing whether Carlo Giuliani had still been alive when the jeep
drove over his body (see paragraph 79(a) above), the checks already carried
out had been thorough; furthermore, the injured parties had been offered the
opportunity of appointing an expert of their choosing to attend the autopsy,
but had not availed themselves of that possibility. In addition, the victim's
body had been cremated scarcely three days after his death, thereby
rendering any subsequent examination impossible;
(b) as to the request for police chief De Gennaro and carabinieri second
lieutenant Zappia to be examined on the subject of the lawfulness of the use
of “thigh holsters” of the kind from which M.P. had drawn the weapon (see
paragraph 79(b) above), it was clear that the directives issued with a view to
the maintenance of public order could only be of a general nature and did
not include instructions applying to unforeseeable situations involving
direct attacks on officers. Furthermore, the manner in which M.P. had been
wearing the pistol was of no relevance in the present case given that he