GIULIANI AND GAGGIO v. ITALY JUDGMENT
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II. RELEVANT DOMESTIC LAW AND PRACTICE
A. “Grounds of justification”
142. The Criminal Code (“the CC”) provides for situations (cause di
giustificazione or scriminanti) which may exempt individuals from criminal
responsibility and render not punishable conduct which amounts to an
offence under the law. Possible grounds of justification include the
legitimate use of weapons and self-defence.
1. Legitimate use of weapons
143. Article 53 of the CC provides that no sanctions may be imposed on
“a State agent who uses or orders the use of weapons or any other means of physical
force in the exercise of his or her official duties, where he or she is obliged to do so in
order to repel an act of violence or thwart an attempt to resist official authority. In any
case, he or she shall not be liable where such action is taken to prevent criminal acts
entailing massacre, shipwreck, flooding, aviation or railway disasters, intentional
homicide, armed robbery or abduction ... The law provides for other cases in which
the use of weapons or any other means of physical force is authorised.”
2. Self-defence
144. Article 52 of the CC provides that no sanctions may be imposed on
“persons who commit an offence when forced to do so by the need to defend their
rights or the rights of others against a real danger of unjust attack, provided that the
defensive response is proportionate to the attack.”
3. Negligent excess
145. Under Article 55 of the CC, in cases, inter alia, of self-defence or
legitimate use of weapons, where the person concerned has negligently
(colposamente) overstepped the limits laid down by law or by the competent
authority, or dictated by necessity, his or her actions are punishable as
negligent conduct to the extent provided for by law.
B. Provisions governing public safety
146. Articles 18-24 of the Public Safety Code (Testo Unico) of 18 June
1931 (No. 773) govern public gatherings and assemblies in public places or
open to the public. Where such a gathering is liable to endanger public order
or safety, or where offences are committed, the gathering may be dissolved.
Before it is dissolved, the participants must be requested by the
law-enforcement agencies to disperse. If the request is not complied with,
the crowd must be given three formal warnings to disperse. If these are not