The Right to Life, Use of Force and Policing Protests

Giuliani and Gaggio v Italy [2009] ECHR 23458/02 (25 August 2009) The European Court of Human Rights has found that Italy failed to adequately investigate the death of a protestor by a member of the military police, or carabinieri, and this failure to investigate breached Italy’s obligations to safeguard the right to life.  The Court was, however, not satisfied that the death itself involved a breach of human rights.


The application was brought by family members of Carlo Giuliani, who died as a result of a gun shot wound inflicted by a carabiniere at the G8 summit in Genoa in July 2001.

During the protests, a vehicle with three injured carabinieri was surrounded by violent protestors, including Mr Giuliani.  A melee ensued, and Mr Giuliani was shot by a carabiniere.  The driver of the vehicle, attempting to move the vehicle away, drove over Mr Giuliani’s body.  Mr Giuliani died at the scene.

Italian authorities conducted investigations to determine the precise cause of death, and the liability of the driver and of the officer who fired the shots.  The investigating judge discontinued criminal proceedings against the two carabiniere.  The judge found it likely that the carabiniere had ‘fired the shot knowing that there was a risk that someone would be killed’, but had acted in self-defence; that the driver could not see Mr Giuliani; and that Mr Giuliani’s death was caused solely by the gunshot.

Mr Giuliani’s family brought this claim to the European Court of Human Rights, claiming that:

  • the shots were a disproportionate and unnecessary use of force in breach of the right to life (protected by art 2 of the European Convention on Human Rights);
  • the failure of the Italian Government to adequately plan for the protest violated Italy’s positive obligations to protect life; and
  • the investigations were inadequate to fulfil Italy’s obligations to safeguard the right to life, because they were flawed, biased and did not consider the overall planning and coordination of the carabinieri operations.


Article 2 of the Convention provides that ‘everyone’s right to life shall be protected by law’.  The right is qualified, under art 2(2), where a death occurs from a use of force ‘which is no more than absolutely necessary’ for self-defence or in law-enforcement situations.

Use of force

The Court noted that art 2 ‘ranks as one of the most fundamental provisions in the Convention’ and ‘the circumstances in which deprivation of life may be justified must therefore be strictly construed’.  Nevertheless, the Court found that the carabiniere had acted in response to an ‘honestly perceived danger to his life’.  His actions were therefore protected by art 2(2).

Positive obligation to protect life

The majority of the Court (by five votes to two) found that Italy had not violated its obligation under art 2 to implement ‘an appropriate legal and administrative framework to deter the commission of offences against the person’ and thus safeguard the right to life.  The majority recognised management of public protests necessitates a difficult balance between freedom of expression and assembly, on the one hand, and security measures to protect other human rights, on the other.  Nevertheless, the Court was critical of the Italian Government’s failure to investigate the conduct and planning of the police operation.  Absent any such investigation, however, the majority of the Court was not satisfied of any link between the conduct of the operation, broadly, and the specific situation leading to Mr Giuliani’s death.

Judges Brazta and Šikuta dissented on this point, finding that even without an investigation, there was plainly a ‘disturbing lack of coordination and effective control over the security operations’ which resulted in the injured carabineri being in a vulnerable situation and needing to resort to lethal force.  If an investigation had occurred, which would have provided the Court with greater evidence, it seems quite possible that the majority of the Court would have adopted a similar analysis of the security situation.

Procedural obligations to protect life

A bare majority of the Court (four votes to three) accepted that Italy had failed to comply with the ‘procedural obligations’ inherent in art 2: namely, the duty to provide an ‘effective official investigation when individuals have been killed as a result of the use of force’.  The majority was critical of various aspects of the investigation into the death, finding that:

  • the autopsy left ‘too many crucial questions unanswered’, and the public prosecutor allowed the body to be cremated before the autopsy report had been concluded, preventing an adequate forensic investigation; and
  • the subsequent investigations were limited to the specific question of whether either of the two carabinieri present at the scene were responsible for the death.  The Italian Government failed to investigate the planning and management of the protest more broadly.

Judges Casadevall and Galicki dissented on this point.  In their view, the prosecutors had ‘no compelling actual or foreseeable reason’ to refuse the request to have the body cremated, and the death was a ‘specific, one-off incident of short duration’, such that an inquiry into the management of the protests would be irrelevant.  Judge Zagrebelsky similarly found that the investigation ‘did everything that could be done to shed light on the events in question’.

Relevance to the Victorian Charter

The management of protests whilst protecting human rights is a significant issue in many democratic societies.  The UK Joint Parliamentary Committee on Human Rights has, for example, released two reports this year addressing the issue of human rights-based policing in protest, recommending that UK police adopt various operational changes.  The issue is clearly pertinent to Victoria, given the violence at the World Economic Forum protests of 2000 and the G20 protests of 2006.

In Victoria, s 9 of the Charter of Human Rights and Responsibilities provides that ‘every person has the right to life and has the right not to be arbitrarily deprived of life.’  The right may be subject, under s 7, to such ‘reasonable limits as can be demonstrably justified in a free and democratic society’.  The European Court of Human Rights’ decision in Giuliani and Gaggio v Italy may persuade Victorian courts to interpret s 9 as involving ‘positive’ and ‘procedural’ obligations.  Such an approach would enable the courts to carefully scrutinise the operational decisions made by police to manage protests, and subsequent government reviews and inquiries into those operational decisions.

Such an approach also has broader ramifications, and may well require the government to ensure any death from the use of force (regardless of the context in which it occurs) is adequately and impartially investigated – both with regard to the immediate context of the use of force and also, where appropriate, the broader context which allowed that use of force to occur.

Zach Meyers, Human Rights Law Group, Mallesons Stephen Jaques