State has a Positive Obligation to Protect Life and Ensure Effective and Independent Investigation of Police-Related Deaths

Giuliani and Gaggio v Italy [2011] ECHR 513 (24 March 2011) Summary

The Grand Chamber of the European Court found no violation of the European Convention of Human Rights arose out of the killing of a demonstrator by Italian armed forces during the G8 summit  Notably, however, there were divergent views regarding the State's obligations (both substantive and procedural) to protect life, including in relation to making specific provisions governing the use of firearms during police operations, issuing non-lethal weapons, and whether there is a higher level of responsibility where large-scale, high risk demonstrations are planned.

Facts

During the G8 anti-globalization demonstrations in Italy in 2001, a jeep carrying members of the Italian armed forces who had been deemed unfit for active duty was surrounded and attacked by demonstrators. One of the demonstrators, Carlo Giuliani, reportedly lifted up a fire extinguisher as if to throw it at the jeep, when one of the officers in the jeep fired two shots.  Carlo was hit and fatally wounded.  After he fell to the ground the driver of the jeep, in an attempt to escape the demonstrators, twice drove over Carlo's body.

Carlo's family brought an application to the Grand Chamber of the European Court alleging Italy had breached the Convention in relation to the right to life (art 2), the right to freedom from inhuman treatment (art 3), the right to a fair hearing (art 6), the right to an effective remedy (art 13), and the obligation on the Italian Government to cooperate (Art 38).

Decision

The Court held that there was no breach of the Convention. However, seven of the seventeen judges dissented, including in relation to many aspects of the decision regarding the right to life.

Substantive obligation of the right to life

Domestic law governing use of force and weapons issued to armed forces

Carlo's family alleged that the State had breached the right to life because there were not adequate provisions governing the use of lethal force during the demonstration. They also argued that the need to minimize the risk to life meant law-enforcement personnel should be equipped with non-lethal weapons during demonstrations.

The majority reiterated that the right to life requires the State to not only refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard life. This entails putting in place an appropriate legal and administrative framework which defines the limited circumstances in which law enforcement officials may use force and firearms, in light of the relevant international standards. In particular:

• the national legal framework must make recourse to firearms dependent on careful assessment of the situation; and
• the national law regulating policing operations must secure a system of adequate and effective safeguards against arbitrariness, abuse of force and avoidable accident.

The majority found that while the Italian Criminal Code was not identical to the Convention requirements of 'absolutely necessary' in terms of wording, in practice the Italian courts interpreted the legislation as authorising the use of lethal force only as a last resort where other, less damaging, responses would not suffice.

In relation to weapons, the majority characterised the circumstances of Carlo's death as having arisen during a sudden and violent attack which posed an imminent and serious threat to the lives of the officers. Given these circumstances, it held there was no basis for concluding that law enforcement officers should not be entitled to have lethal weapons at their disposal to counter such attacks. Notably, the majority did say that if the death had occurred during an operation to disperse demonstrators (as opposed to during an attack), there would be “room for debate” as to whether law-enforcement personnel should be issued with other non life-threatening equipment, such as water cannons and guns with non-lethal ammunition.

Dissenting opinions concluded that the State breached its positive obligation to protect life because it did not take the necessary legislative, administrative and regulatory measures to reduce as far as possible the risks and consequences of the use of force. Some of the judges considered that, in the case of mass demonstrations which are inherently high-risk and involve foreseeable danger, the State's obligation to protect the right to life “necessarily takes on another dimension” compared to its obligation in an isolated, accidental event. They concluded that Italy's legislative framework governing the use of lethal force was deficient as it did not include specific provisions governing the use of firearms during police operations, and the armed forces were not equipped with alternative means of defence other than a lethal weapon. They noted that the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials provides that law enforcement officials should be equipped in a manner which allows for a differentiated use of force and firearms.

Organisation, planning and management of the policing public-order operations

Carlo's family contended there was a breach of the State's positive obligation to protect life arising from the lack of a clear chain of command and proper organisation of operations, the officer's impeded physical and mental state and lack of training, inappropriate criteria for selecting armed forces personnel for the demonstration, and the events immediately following the fatal shooting.

In terms of principles, the majority acknowledged that all the surrounding circumstances of the use of force, including the planning and control of the actions, needed to be examined, and that enforcement officials must be trained to assess whether or not there is an absolute necessity to use firearms, not only on the basis of the relevant regulations but also with due regard to the pre-eminence and respect for human life as a fundamental value.

In applying those principles to the facts, the majority considered that where a large number of officers are required to maintain order over a large area, all officers involved cannot reasonably be expected to be highly specialised in dealing with the task assigned to them. It also considered that in this case there was nothing to indicate that Carlo was, over and above the other demonstrators, the potential target of a lethal act, and accordingly the State was not under an obligation to provide him with personal protection. It also considered that the other planning and operational steps undertaken were not unreasonable in the circumstances and it was not foreseeable they would lead to Carlo's death.

The majority therefore held that the Italian authorities did not fail in their obligations to do all that could reasonably be expected to provide the level of safeguards required during operations potentially involving the use of lethal force.

In a dissenting opinion, four judges found that there was a lack of organisation by the State which breached the right to life. In particular, they were critical of the criteria for selecting the armed forces, noting the limited experience and training of the officials. They were also critical of the lack of support for the officer who ultimately shot Carlo, noting that following the decision he was unfit to remain on active duty, he was left in a vehicle which was not adequately protected with a lethal weapon as his only defence. These judges took the view that the lack of an appropriate legislative framework governing the use of firearms (discussed above), coupled with the shortcomings in the preparation of policing operations and the training of law enforcement personnel, meant the State's actions were in fact linked to Carlo's death.

Procedural aspect of the obligation to protect the right to life

Investigation of the death

Carlo's family alleged a number of shortcomings in the way Carlo's death was investigated.

In relation to the manner in which the investigation was carried out, the majority observed that the right to life imposes procedural obligations on the State to carry out an effective investigation into alleged breaches of the substantive limb. It noted that a failure by the State to conduct an effective investigation can give rise to a finding of 'interference' with the right to life and a separate violation of the Convention.

The majority noted some shortcomings in the manner of investigation, but concluded overall that there was no evidence that the investigation had not been effective.

However, in a dissenting opinion, four judges were critical of the fact that no disciplinary proceedings of any kind were instituted against the armed forces, noting that the failure to do so appeared to have been based on a preconceived idea that no criticism was to be made of the manner in which the officers were deployed or the way in which orders were given throughout the chain of command, even though the dangers linked to the demonstrations and the risks to law enforcement officers were largely foreseeable. They considered this failure to undertake further investigation of the planning and management of the public-order operations was “difficult to reconcile” with the procedural obligations on the State arising out of the right to life.

Relevance to the Victorian Charter

The European Court's decision in relation to the right to life under the Convention is useful for assessing how the right to life in s 9 of the Victorian Charter is to be interpreted and applied.  Importantly, the Victorian Charter expressly provides that international law relevant to a human right may be considered in interpreting a statutory provision (s 32(2)).

The decision, both in terms of the majority judgement and the dissenting opinions, reaffirms the importance of the right to life to democratic societies, and reiterates the established principles governing its interpretation and breadth.

There is also some support for interpreting a State's obligations under the right to life as requiring:

• specific regulation of the use of force for different types of law enforcement operations;
• a greater focus on equipping law enforcement officials with a range of enforcement options, including non-lethal weapons, to enable them to tailor responses more appropriately to the different situations they may confront; and
• an assessment of the State's responsibilities in planning and managing operations which more closely reflects the level of risk and logistical difficulties of the operation which the State ought to have foreseen.

The decision is at http://www.bailii.org/eu/cases/ECHR/2011/513.html.

Verity Quinn is a Senior Associate with Allens Arthur Robinson