positive obligations from article 2 echr - the case giuliani and gaggio v. italy
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An analysis of positive obligations under Article 2 ECHR concerning Giuliani and Gaggio v. Italy.TRANSCRIPT
University of Basel, Faculty of Law
Prof. Dr. Stephan Breitenmoser
Seminar: Menschenrechtsschutz in Europa
Positive obligations from Article 2 ECHR –
the case Giuliani and Gaggio v. Italy
Philippe Lionnet
Bernstrasse 147
3400 Burgdorf
+41 79 202 88 89
06-108-914
MA European Studies, 4th Semester
25.10.2011
II
Table of contents
I. Introduction .............................................................................................................. 1
II. Legal background ................................................................................................... 2
II.1 The definition of positive obligations .................................................................. 2
II.1.1 The theory of positive obligations ................................................................... 2
II.1.2. The concept of positive obligations ............................................................... 4
II.2. The unique character of the ECHR concerning positive obligations ................. 6
II.3. The specific implications of Article 2 ECHR...................................................... 7
II.3.1. Formal argumentation ................................................................................ 8
II.3.2. Material argumentation .............................................................................. 8
II.3.3. Procedural aspect .................................................................................... 11
II.3.4. Substantive aspect ................................................................................... 12
III. Relevant case-law ............................................................................................... 14
III.1. Tier I: Actions of non-state-actors .................................................................. 14
III.2. Tier II: Actions of state-actors ........................................................................ 16
IV. The Case Giuliani vs. Italy ................................................................................... 18
IV.1. The circumstances of the case ..................................................................... 18
IV.2. Court findings and argumentation ................................................................. 21
IV.3. Dissenting opinions ....................................................................................... 26
V. Conclusion ........................................................................................................... 30
VII. Annexes ............................................................................................................. 32
VII.1. Annex I ......................................................................................................... 32
VII.2. Annex II ........................................................................................................ 32
VII.3. Annex III ....................................................................................................... 33
VIII. Declaration of authorship .................................................................................. 35
III
List of abbreviations
ECHR European Convention of Human Rights /
European Court of Human Rights
Ed. Editor
f. And the following page
ff. Following pages
fn. Footnote
I.m.o. In my opinion
Ibid. Ibidem
No. Number
p. Page
para. Paragraph
UN United Nations
Unanim. Unanimously
v. Versus
VCLT Vienna Convention on the law of treaties.
IV
Literature
AKANDJI-KOMBE Positive obligations under the European Convention on
Human Rights, in: Human rights handbooks, No. 7,
Strassburg 2007.
BERNHARDT, RUDOLF Rechtsfortbildung durch den Europäischen Gerichtshof für
Menschenrechte, in: Breitenmoser et al. (Ed.), Human
rights, democracy and the rule of law,
Zürich/St.Gallen/Baden-Baden 2007, p. 90 ff.
BESSON, SAMANTHA Les obligations positives de protection des droits
fondamentaux – Un essai en dogmatique comparative,
ZSR. No.1, 2003, p.49-96.
BLAU, KERSTIN Neuere Entwicklungen in der Schutzpflichtdogmatik des
EGMR am Beispiel des Falles „Vo/Frankreich“ in:
Zeitschrift für Europäisches Strafrecht, No.3 2005, p.397 ff.
BOUSSIAKOU, IRIS,
WHITE, ROBIN
Separate opinions in the European Court of Human
Rights, in: Human Rights Law Review, No.9 (1), 2009,
p.37-60.
BUERGENTHAL, THOMAS,
THÜRER, DANIEL
Menschenrechte, Ideale, Instrumente, Institutionen,
Zürich/St. Gallen 2010.
CLAYTON, RICHARD,
TOMLINSON,HUGH
The Law of Human Rights, 2nd Ed., Oxford 2009.
DIETLEIN JOHANNES Die Lehre von den grundrechtlichen Schutzpflichten, 2nd
Ed., Berlin 2005.
DRÖGE, CORDULA Positive Verpflichtungen der Staaten in der Europäischen
Menschenrechtskonvention, in: Biträge zum ausländischen
öffentlichen Recht und Völkerrecht, No. 159, 2003, p.3 ff.
EPINEY, ASTRID,
MOSTERS, ROBERT,
RIEDER, ANDREAS
Europarecht, Bern 2010.
V
GRABENWARTER
CHRISTOPH
Europäische Menschenrechtskonvention, 4th Ed.,
München 2009.
HERDEGEN, MATTHIAS Völkerrecht, 8th Ed., München 2009.
HOLZINGER ET. AL. Die EU, Theorien und Analysekonzepte, Paderborn 2005.
KÄLIN, WALTER, KIENER,
REGULA
Grundrechte, Bern 2009.
KÄLIN, WALTER, KÜNZLI,
JÖRG
Universeller Menschenrechtsschutz, 2nd Ed., Basel/Baden-
Baden 2008.
KORFF, DOUWE The right to life, a guide to the implementation of Article 2
of the Convention on Human Rights, Human rights
handbooks No.8, Strassbourg 2006.
MARGUÉNAUD, JEAN-
PIERRE
La Cour Européenne des Droits de l’Homme, 5th Ed.
Dalloz-Sirey 2010.
NOWAK, MANFRED Einführung in das internationale Menschenrechtssystem,
Wien 2002.
SUDRE, FRÉDÉRIC Les obligations positives dans la jurisprudence
européenne des droits de l’homme, in: RTDH 1995, p.363
ff.
TSCHENTSCHER, AXEL Grundprinzipien des Rechts, Bern/Stuttgart/Wien 2003.
VI
Case-law and Materials
ECHR, Chamber judgement, Airey v. Ireland, 6289/73, 09 October 1979.
ECHR, Chamber judgement, L.C.B. v. the United Kingdom, 23413/94, 09 June 1998.
ECHR, Chamber judgement, Powell and Rayner v. the United Kingdom, 9310/81, 21
February 1990.
ECHR, Chamber judgement, Sigurdur A. Sigurjonsson v. Iceland, 16130/90, 30 June
1993.
ECHR, First Section judgement, Avsar v. Turkey, 25657/94, 10 July 2002.
ECHR, First Section judgement, Mahmut Kaya v. Turkey, 22535/93, 28 March 2000.
ECHR, First Section judgement, Mamatkulov v. Turkey, 46827/99 and 46951/99, 06
February 2003.
ECHR, First Section judgement, Nachova and others v. Bulgaria, 43577/98 and
43579/98, 26 February 2004.
ECHR, First Section judgement, Yasa v. Turkey, 22495/93, 02 September 1998.
ECHR, Fourth Section judgement, Giuliani and Gaggio v. Italy, 23458/02, 25 August
2009.
ECHR, Fourth Section judgement, Pretty v. the United Kingdom, 2346/02, 29 April
2002.
ECHR, Grand Chamber judgement, Agdas v. Turkey, 34592/97, 27 July 2004.
ECHR, Grand chamber judgement, Andronicou and Constantinou v Cyprus,
25052/94, 9 October 1997.
ECHR, Grand Chamber judgement, Broniowski v. Poland, 31443/96, 22 June 2004.
ECHR, Grand Chamber judgement, Giuliani and Gaggio v. Italy, 23458/02, 24 March
2011.
VII
ECHR, Grand Chamber judgement, Ilascu and others v. Moldova and Russia,
48787/99, 08 July 2004.
ECHR, Grand Chamber judgement, Kurt v. Turkey, 24276/94, 25 May 1998.
ECHR, Grand Chamber judgement, Loizidou v. Turkey, 15318/89, 18 December
1996.
ECHR, Grand Chamber judgement, Makaratzis v. Greece, 50385/99, 20 December
2004.
ECHR, Grand chamber judgement, McCann and others v. the United Kingdom,
18984/91, 5 September 1995.
ECHR, Grand Chamber judgement, McCann v the United Kingdom, 18984/91, 27
September 1995.
ECHR, Grand Chamber judgement, Nachova and others v. Bulgaria, 43577/98 and
43579/98, 6 July 2005.
ECHR, Grand Chamber judgement, Öneryildiz v. Turkey, 48939/99, 30 November
2004.
ECHR, Grand Chamber judgement, Osman v. the United Kingdom, 23452/94, 28
October 1998.
ECHR, Grand Chamber judgement, Scavuzzo-Hager et al. v. Switzerland, 41773/98,
7 February 2006.
ECHR, Grand Chamber judgement, Siliadin v. France, 73316/01, 26 June 2005.
ECHR, Grand Chamber judgement, Tanis and others v. Turkey, 65899/01, 02 August
2005.
ECHR, Grand Chamber judgement, Togcu v. Turkey, 27601/95, 31 May 2005.
ECHR, Grand Chamber judgement, Tyrer v. the United Kingdom, 5856/72, 25 April
1978.
ECHR, Grand Chamber judgement, Vgt Verein gegen Tierfabriken v. Switzerland,
32772/02, 30 June 2009.
VIII
ECHR, Grand Chamber judgement, Vo v. France, 53924/00, 08 July 2004.
ECHR, Plenary judgement, Case “Relating to certain aspects of the laws on the use
of languages in education in Belgium v. Belgium, 1474/62 and others, 23 July 1968.
ECHR, Plenary judgement, Johnston and others v. the United Kingdom, 9697/82, 18
December 1986.
ECHR, Plenary judgement, Young, James and Webster v. the United Kingdom,
7601/76 and 7806/77, 13 August 1981.
ECHR, Press Release, Death of a demonstrator at the 2001 G8 summit in Genoa: no
violation, No. 257, 24 March 2011.
ECHR, Press Release, Forthcoming Grand Chamber judgement in the case of
Giuliani and Gaggio v. Italy, No.246, 22 March 2011.
ECHR, Second section judgement, Gongadze v. Ukraine, 34056/02, 8 November
2005.
ECHR, Second section judgement, Halis Akin v. Turkey, 30304/02, 13 January 2009.
ECHR, Second Section judgement, Vgt Verein gegen Tierfabriken v. Switzerland,
24699/94, 28 September 2001.
ECHR, Third Section judgement, McKerr v. the United Kingdom, 28883/95, 04 May
2005.
Statistics on the European Court of Human Rights,
http://www.echr.coe.int/ECHR/EN/Header/Reports+and+Statistics/Statistics/Statistica
l+information+by+year/ (Last access 21 October 2011).
The Guardian, “Genoa officer in ‘suspicious’ car crash, 5. August 2003. Source:
http://www.guardian.co.uk/world/2003/aug/06/globalisation.italy (Last access 24
October 2011).
United Nations Basic Principles on the Use of Force and Firearms by Law
Enforcement Officials of 1990, available through the Office of the United Nations High
Commissioner for Human Rights: http://www2.ohchr.org/english/law/firearms.htm
(Last access 25 October 2011).
1
I. Introduction
In the past years, the ECHR has developed a unique tradition of judgements,
developing the idea of individual basic and human rights protection to a point which
may and should be seen as pioneering this legal area worldwide1. The thesis follows
one of these developments, focusing on the very basic guarantees enshrined in
Article 2 ECHR: the right to life and therein the concept of positive obligations of the
state towards an individual, concerning the protection of this fundamental right.
I.m.o., the concept stands as probably the most remarkable feature of specifically
European basic fundamental rights protection as regional ius cogens, which on the
one hand opens an additional dimension to the standard of protection but on the
other pose up a series of legal and political problems which will be addressed in this
paper and exemplified in the case Giuliani and Gaggio v. Italy.
The thesis begins with a theoretical outline of positive duties stemming from Article 2
ECHR based on respective scientific literature. Their development is illustrated by
structuring the case-law regarded as the most relevant and by giving an overview on
the findings of the court in a selection of leading cases and how they contributed to
the shaping of the existing concept of positive duties. Next, an analysis of the case
Giuliani v. Italy is provided, concentrating on the Court’s argumentation on aspects of
positive duties derived from Article 2 ECHR and the connection to the aspects
provided by previous case-law. Thereafter the concept outlined in the case-law is
connected with the actual findings in the final verdict, lining out the limits of positive
duties set out in the court’s argumentation and the way they fit into the existing
tradition. Also, controversies and differing views on the concept within the court are
shown by taking into account the additional argumentation in the dissenting opinions.
Finally, the findings and argumentation on the significance of the Giuliani case for the
contemporary standard of the concept are presented in a conclusion.
1 See also BUERGENTHAL/THÜRER, p.191 ff.
2
II. Legal background
II.1 The definition of positive obligations
To begin with, the discourse on positive obligations is to be divided into two
sections2: on the one hand, there is the theory of positive obligations, stemming
mainly from the scientific viewpoint, meaning a rather abstract, general
argumentation on the way the relationship between natural and legal persons and the
authorities should be constrained and judged and what role basic fundamental rights
play therein3 – grounded in a specifically European understanding of philosophical
notions on natural law, human dignity and proper and reasonable governance. On
the other hand, I distinguish the concept of positive obligations within the ECHR, as it
has been and is developed by the Court within their legislative power and as it has
been and is applied in the respective case-law. These two areas are interrelated and
may bear more or less similarities and parallels, but have to be strictly separated in
order to successfully end up with concrete and applicable analytical results.
II.1.1 The theory of positive obligations
On an abstract level, positive obligations refer to the relationship of natural persons
and the state, represented by governments which have ratified a binding legal
document, e.g. the ECHR. They exist in addition to the rather traditional
understanding of basic fundamental rights as being provisions guaranteeing
protection to individuals from certain interference by the state in more or less clearly
defined areas of protection – and thereby constituting obligations of non-interference
for states and eventually duties of acceptance for individuals4. This ascertainment
also leads to a certain understanding of the role of courts, judging the legitimation of
interferences based on other concepts, being e.g. the public interest, proportionality,
necessity and so on5, ultimately serving the establishment of a certain standard of
2 See also TSCHENTSCHER for the systematics. 3 See HERDEGEN, p.335 ff. for a historical approach on the subject. 4 See KÄLIN/KÜNZLI. 5 Ibid.
3
lawfulness6 on the way authorities may or may not interfere with the rights of natural
and - to some extent - legal persons under their jurisdiction7. Adding positive
obligations to this constellation is first and foremost an addition of obligations to the
role of governments and an addition of rights to individuals8.
A certain horizontal effect9 of basic fundamental rights may for example be
established by giving the authorities the positive obligation to protect bearers of these
rights from interferences caused by third parties in areas, where this protection has
not been established by other specific legal codes protecting them10. A table in
Annex I gives an overview on those two mechanisms11. A positive obligation to
protect for the government is thereby complementary to a positive right to protection
by the government12. It is important to note that the negative obligation of states not
to interfere enshrined in a basic fundamental rights provision may find its counterpart
in the positive obligation to interfere in other cases – even if both may be derived
from the very same provision13. This already gives a strong indication for the
importance of concrete circumstances14 of the case in question.
6 HERDEGEN, P.349 and First Section judgement, Mamatkulov v. Turkey, 46827/99 and 46951/99,
06 February 2003, §93 f. 7 The ECHR has ruled on cases concerning extraterritorial actions by signatory states by applying
a test of “effective control”. See ECHR, Grand Chamber judgement, Loizidou v. Turkey,
15318/89, 28 July 1998, §62 and HERDEGEN, p.350. 8 BUERGENTHAL/THÜRER, p.236 f. 9 It is important to note that this concerns the nature of the legal issues, not the parties the
Convention addresses. 10 E.g. the direct application of non-discrimination-provisions within business-relations. See also
BESSON and AKANDJI-KOMBE. 11 See Chapter VII for annexes. 12 For the different levels of obligations, see also NOWAK. 13 As the Court itself put it: „The substance of the complaint would be not that the State has acted
but that it has failed to act.” ECHR, Chamber judgement, Airey v. Ireland, 6289/73, 09 October
1979, §32. 14 The Court has frequently referred to the importance of judging events in their “proper context”.
4
II.1.2. The concept of positive obligations
Even if single judgements provide a certain outline of the relevant case-law, there is
no single and conclusive definition of the concept of positive obligations by the court
itself. First applied in the famous Belgian Linguistic-case15, the idea has developed
through a series of argumentations in different cases, making it a concept merely in
retrospect through a synthesis of these partial argumentations on different articles
applied under different circumstances.
Speaking of a “concept”, it has to be stated that the Court has consequently argued
that any positive obligation of a government has to stem from an actual clause setting
out the substantive right – as a consequence of the general principle of attribution,
meaning that the competence of the Court lies only in the assessment of issues
affecting guarantees explicitly based on the Convention16. Therefore, any notion of
an abstract, general concept existing independently of concrete provisions of the
ECHR is per se superstitious; the positive obligations are to be derived from any
single provision itself by using the established means of interpretation17 and only in
the cases where the applicant has referred to the relevant provision. Despite this very
concrete character of a concept applied through single provisions, the importance of
Article 1 ECHR seems to be more and more crucial in the Court’s rulings:
“ARTICLE 1
The High Contracting Parties shall secure to everyone within their jurisdiction the
rights and freedoms defined in Section I of this Convention.”
The Court has frequently based positive obligations of states on a combination of
Article 1 ECHR and the specific provision18. As AKANDJI-KOMBE argues, this
15 ECHR, Plenary judgement, Case “Relating to certain aspects of the laws on the use of
languages in education in Belgium v. Belgium, 1474/62 and others, 23 July 1968. 16 E.g. in: ECHR, Plenary judgement, Johnston and others v. the United Kingdom, 9697/82, 18
December 1986. 17 Following Articles 31-33 of the VCLT of 1969 and the Court’s statements on the importance of
the existing case-law and the “present day conditions” in: ECHR, Grand Chamber judgement,
Tyrer v. the United Kingdom, 5856/72, 25 April 1978, §31. 18 AKANDJI-KOMBE, p.8 f.
5
represents a new tendency in the Court’s patterns of argumentation19. Although this
may in fact lead to a certain generalization of the concept based on the notion that
positive obligations are a “decisive weapon”20 to effectively secure the rights provided
by the convention, the issue is much more complex and depending on the
circumstances of single cases21. I.m.o., a strong argument for the development and
application of concepts lies in the tension between the need for the assessment of a
certain case under the light of the concrete circumstances and a general preventive
effect of the Court’s decisions, giving the protection of basic fundamental rights not
only a significance ex post, but also influencing future practices of governments ex
ante – also in cases, where the verdict of the Court does not explicitly state the need
for concrete changes in the existing legal framework.22
Scientific articles offer a wide range of distinctions and attempts to structure the
concept of positive obligations and distinguish it from negative. As illustrative they
may be, the urgent need for scheming this subject is mostly of a rather academic
nature which doesn’t offer much analytical value in practice, because both categories
often overlap and interrelate. I.m.o., it is most important to hold that the principle of
“effective implementation” in combination with good faith23 as a general principle for
the responsibilities of governments concerning the implementation24 of the
Convention both towards their citizens and the Council of Europe may create
obligations with different implications, which may be positive, negative or both in the
same case25. Therefore, the “passivity” of the state hasn’t to be absolute to establish
19 AKANDJI-KOMBE, p.8 f. 20 The term refers to judge-made structures, see also MARGUÉNAUD. 21 See e.g. the Court’s approach in: ECHR, Grand Chamber judgement, Broniowski v. Poland,
31443/96, 22 June 2004. 22 In particular: ECHR, Plenary judgement, Young, James and Webster v. the United Kingdom,
7601/76 and 7806/77, 13. August 1981; ECHR, Grand Chamber judgement, Vgt Verein gegen
Tierfabriken v. Switzerland, 32772/02, 30 June 2009; ECHR, Chamber judgement, Sigurdur A.
Sigurjonsson v. Iceland, 16130/90, 30 June 1993. 23 For more a more detailed insight, see BERNHARDT, p.91 ff. 24 The Court has provided very detailed argumentation on this issue in: ECHR, Grand Chamber
judgement, McCann v the United Kingdom, 18984/91, 27 September 1995, where the principles
of positive obligations stemming from Article 2 were pointed out. 25 As the Court noted in: ECHR, Chamber judgement, Powell and Rayner v. the United Kingdom,
9310/81, 21 February 1990, §41: “Whether the present case be analysed in terms of a positive
6
a breach of a provision, either – the taking of insufficient or inappropriate measures
may lead to a “partial failure to act”26, which the Court has deemed enough to
establish a breach of a provision with regard to the guiding principles mentioned
above.
II.2. The unique character of the ECHR concerning p ositive obligations
The existing case-law allows a rough classification, which is found in the literature27
and follows the functional categories which the notion of positive obligations has so
far followed in the legal reality of the ECHR. As mentioned before, the concept began
to develop with the Belgian linguistic-case, which at the same time established the
first category of cases, the social obligations28. It refers to cases, where the effective
“ensurance” of provisions guaranteed by the ECHR would be on stake if the
government would fail to act29. This category has been considered by the Court to be
a function of Article 1 ECHR and the respective provision and necessary to ensure
the function of the Convention per se, as stated in the Airy-judgement:
“The Convention is intended to guarantee not rights that are theoretical or illusory but
rights that are practical and effective”30
A second category is rather controversial, as the convention does as such not
provide any binding effect on private individuals31 for this would circumvent the
system of legal complaint and lead to an erosion of the role of the state in legal
duty on the State to take reasonable and appropriate measures to secure the applicants’ rights
under paragraph 1 of Article 8 or in terms of an “interference by a public authority” to be justified
in accordance with paragraph 2, the applicable principles are broadly similar”. 26 See e.g. ECHR, Grand Chamber judgement, Ilascu and others v. Moldova and Russia,
48787/99, 08 July 2004, §334. 27 KÄLIN/KIENER and DRÖGE, p.191. 28 BLAU, P. 401 ff. und SUDRE, p.363 ff. 29 ECHR, Plenary judgement, Case “Relating to certain aspects of the laws on the use of
languages in education in Belgium v. Belgium, 1474/62 and others, 23 July 1968. 30 ECHR, Chamber judgement, Airey v. Ireland, 6289/73, 09 October 1979, §25. 31 Although, BUERGENTHAL/THÜRER and others see the emerge of a certain transmission towards
obligations for private actors in e.g. the “Caroline-judgement”.
7
“mediation”32 of basic fundamental rights33. It refers to the obligation of states to
interfere with actions of natural persons which are endangering other’s enjoyment of
rights guaranteed by the convention. Or, put differently, the obligation to act if
passivity would lead to a violation of provisions by other actors than the authorities
themselves34.
The third category is the most relevant for vertical constellations in cases such as
Giuliani vs. Italy, because it is primarily related to actions of the authorities towards
individuals and – most important – measures taken before and after the events
leading to the actual violation of a provision in its substantial or procedural aspect. It
is crucial to distinguish these procedural obligations derived from material provisions
of the Convention and the procedural guarantees enshrined in Article 5 para. 3 and
Articles 4, 6 and 13 ECHR. This category is of high importance for the concept
developed in the case-law concerning Article 2 ECHR, as shown in the following
chapter.
II.3. The specific implications of Article 2 ECHR
As the establishment of positive obligations means no less than an expansion of the
protection offered by the Convention and also of the expectations towards
governments who have ratified the convention - and given the fact that the existence
of such obligations is not explicitly stated in the text of the convention - it has to be
legitimized and explained systematically to be justified35. In the following section, two
lines of argumentation are drawn specifically for Article 2 of the Convention, thereby
emphasizing the specific character of any notion of positive obligations for every
provision in contrary to a “general principle”. Furthermore, the procedural aspects
inherent to Article 2 ECHR are separated from the substantial aspects and an outline
32 Which depends on whether the respective state follows a monist or dualist approach. See
KÄLIN/KIENER for the differenciation. 33 KORFF, p. 7 ff. 34 KÄLIN/KIENER. 35 See AKANDJI-KOMBE, p.7 ff.
8
of the implications for the assessment of existing case-law and the significance for
situations appearing within the territorial boundaries of the ECHR is given.
II.3.1. Formal argumentation
Formally, Article 2 ECHR is the first provision in the Convention directly offering rights
to individuals living in a signatory state in the listing, which implies its primary
character. It uses clear, explicit wording as “no one shall be killed by intention”, and
“any mans right to live is protected by law”36 and is thereby established as a guiding
principle of law37, intended to have a signalling effect38 on the in- and outside39 of the
territory the convention has been ratified.
II.3.2. Material argumentation
On the material side, the ensurance of Article 2 ECHR is the indeniable requirement
for any further enjoyment of basic fundamental rights. It is therefore not only formally
set in front of any other provision, but also logically40. The provision - when read in
combination with Article 1 ECHR - implicitly contains an obligation of the state to act41
in addition to the obligation to set up a legal framework providing the explicitly stated
protection of the right. The Court has also held that the right admits no derogation
under Article 15, para. 2 in peacetime42 and that it, together with Article 3 ECHR,
36 While other provisions of the Convention use rather open wordings as “common interest” or
“respected by law” which do not have the same direct implications on the requirements towards
a legal system implementing the Convention. 37 BLAU, p.408. 38 BUERGENTHAL/THÜRER, p.211 f. 39 See fn. 6. 40 KÄLIN/KIENER. 41 „…ensures…“ 42 KORFF, p.6.
9
enshrines one of the basic values of the democratic societies making up the Council
of Europe43.
As the Court basically relies on methods of interpretation provided by articles 31 ff. of
the VCLT, certain boundaries are set on the application of the Convention. Anyhow,
a strict limitation on these instruments would inevitably lead to a rather restrictive and
static interpretation and application of the Convention. To ensure an effective
realization of the provision in the sense of an effet utile, the Court has subsequently
chosen a dynamic and autonomous approach44, defining the Convention as a living
instrument with respect to present day conditions45. I.m.o., therein lies also a
significant political dimension, as the margin of appreciation the Court has to grant
national courts is reversely proportionate to the control it exercises itself – meaning,
the more consensus has been reached about the proper application of a provision,
the less margin is left to national courts to interpret the provisions of the
Convention46. As this margin diminishes, the Court has to present clearer and
narrower guidelines in its rulings to provide an effectively applicable framework to the
member-states47.
Article 2 ECHR being the primary provision protecting the highest legal good in the
Convention therefore has to be treated by the Court in a way clear and narrow
enough to have a signalling effect and provide a yardstick in the sense of a minimal
standard48. Under these assumptions, the development of positive obligations can be
seen as logical, as the Court has to cover areas outside the “classic” negative
43 ECHR, Grand chamber judgement, McCann and others v. the United Kingdom, 18984/91, 27
September 1995, §147. 44 BLAU, p.404. 45 As stated in the case: ECHR, Grand Chamber judgement, Loizidou v. Turkey, 15318/89, 18
December 1996, §71: “That the Convention is a living instrument which must be interpreted in
the light of present day conditions is firmly rooted in the Court’s case-law [...]. It follows that
these provisions cannot be interpreted solely in accordance with the intentions of their authors
as expressed more than forty years ago. “ 46 As the Court stated in: ECHR, Grand Chamber judgement, Siliadin v. France, 73316/01, 26
June 2005, §148: “…the increasingly high standard being required in the area of the protection
of human rights and fundamental liberties correspondingly and inevitably requires greater
firmness in assessing breaches of the fundamental values of democratic societies”. 47 See BUERGENTHAL/THÜRER, p.234 f. 48 KORFF, p.7.
10
obligation-rulings to ensure this minimal standard for states which may have been
less reluctant to act - or let their administrative bodies act - in a way which does not
meet the standards set by the Court and the Council of Europe49. The obvious
concentration of relevant case law on signatory-states as Russia or Turkey50 may
illustrate this fact, even if this does in no way mean - as the case-law also reflects -
that the “older” members act in total respect of the provision. The main point here is
that the development of positive obligations is to a certain extent inherent in the task
and character of the ECHR as an institution51 and also in the tensions caused by the
different legal traditions of several signatory states.
49 Although the Council’s decisions as such are not binding. 50 Current statistics may be accessed under: The European Court of Human Rights,
http://www.echr.coe.int/ECHR/EN/Header/Reports+and+Statistics/Statistics/Statistical+informati
on+by+year/ (Last access 21 October 2011). 51 See also BESSON and AKANDJI-KOMBE.
11
II.3.3. Procedural aspect
The procedural aspect of positive obligations52 of the state is insofar very remarkable,
as it contains obligations clearly exceeding the assessment of an action leading to
the substantive violation of Article 2 ECHR - the life of a natural person - itself. The
Court’s decision on the first case dealing with a direct violation of Article 2 ECHR at
all, being McCann et al. vs. Great Britain53 in 1995, emphasizes the positive
obligation of the authorities to actively take measures in order to ensure an effective
planning and organization of law-enforcement operations which may prevent a
violation of the provision in the first place. A breach of Article 2 ECHR may thereby
be established, even if the killing of the natural persons itself under the concrete
circumstances is considered being absolutely necessary54 and therefore not per se
illegitimate. A multiplicity of cases concerning procedural aspects of Article 2 ECHR
concern Turkey, especially the so-called disappearance-cases55 are of some
importance here. The Court stated repeatedly that the question whether a
disappeared person can be proved to be still alive or not is not relevant concerning a
possible breach of Article 2 ECHR by the authorities - but rather whether the state
has fulfilled its positive obligations to ensure an effective investigation of the cases by
independent bodies and to provide the possibility of an effective remedy. The
consequence is the setting of the minimum yardstick to a point where a government
is taken the possibility to avoid a breach of Article 2 ECHR by simply preventing the
proof of a person’s death56.
It is remarkable that the Court’s recent argumentations based on Article 2 in
combination with Article 1 ECHR did clearly move beyond the mere assessment of
52 The category was explicitly mentioned in: ECHR, Grand Chamber judgement, Öneryildiz v.
Turkey, 48939/99, 30 November 2004 in distinction to a substantive aspect as discussed in the
next section. 53 ECHR, Grand Chamber judgement, McCann v. the United Kingdom, 18984/91, 5 September
1995. 54 See KORFF, p.25. 55 E.g. ECHR Grand Chamber judgements, Tanis and others v. Turkey, 65899/01, 2 August 2005
and Kurt v. Turkey, 24276/94, 25 May 1998 for the connection to “inhuman treatment” of family
members of a disappeared person under Article 3 ECHR. 56 See e.g. ECHR, First Section judgement, Mahmut Kaya v. Turkey, 22535/93, 28 March 2000.
12
the circumstances of the case, applying the concept of positive obligations in the
sense of a dynamic interpretation to very profoundly ensure the effective
implementation of the Convention57. The procedural obligations give a protection
moving beyond the obligation of non-interference and clearly express the will to
influence signatory states through the Convention as a legal instrument. The
independence of this investigative obligation from the actual actions by state actors
leading to a person’s death was probably most clearly held in the Court’s judgement
Scavuzzo-Hager et al. v. Switzerland, were the failure of an effective investigation
even under the circumstance that the causality of the action and the death of a
person could not be proved was found to establish a breach of Article 2 ECHR58.
II.3.4. Substantive aspect
“ARTICLE 2 – Right to life
1 Everyone's right to life shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court following his conviction of
a crime for which this penalty is provided by law.
2 Deprivation of life shall not be regarded as inflicted in contravention of this article
when it results from the use of force which is no more than absolutely necessary:
a in defence of any person from unlawful violence;
b in order to effect a lawful arrest or to prevent the escape of a person lawfully
detained;
c in action lawfully taken for the purpose of quelling a riot or insurrection.”
Article 2 is insofar remarkable59, as it directly imposes a positive obligation on
governments in its paragraph 1: “Everyone’s right to life shall be protected by law”.
57 AKANDJI-KOMBE, p.9. 58 ECHR, Grand Chamber judgement, Scavuzzo-Hager et al. v. Switzerland, 41773/98, 7 February
2006. 59 The Court has among others interpreted the formulation “respect for private life” in Article 8
ECHR as imposing a direct positive obligation as well. See AKANDJI-KOMBE, p.21.
13
This means that the positive dimension of not only to refrain from actions in breach
with the provision but of additionally taking appropriate steps to ensure the safety of
the lives of those within the signatory-states jurisdiction60 is explicitly stated as a
substantive aspect. The possibility of death sentences enshrined in national martial
law is still contained in the main text of the Convention, but is abolished for most
signatory states through the ECHR facultative protocol No. 13 or the second
facultative protocol to the UN-pact II.
It is very important to note that the provision cannot and is not intended to provide an
absolute protection of human life under any circumstances – it merely grants
protection from certain forms of lethal actions. Furthermore, it also guarantees
protection from indirect threat in the form of the so-called non-refoulement principle61.
Because the authorities may in the pursuit of their duties be obliged to use force in
different forms, the Convention contains explicit grounds of justification in para. 2 lit.
a-c of Article 2, to be read in combination with the condition of “absolute necessity”.
Those do not imply that the killing of a natural person by state actors is as such
legitimate, but that actions with lethal consequences must not necessarily result in a
violation of the right to life62. The categories are structured in Annex II.
The aim of the provision lies in the prevention of arbitrary killing, meaning the
violation of the provision without any or sufficient legitimation63. Generally, the
substantial obligations of the Convention are those requiring the basic measures
needed for full enjoyment of the rights guaranteed, for example laying down proper
rules governing interventions by the police for such cases as listed above and –
obviously – the negative obligation of the state not to act in a way which establishes
a breach of a provision. The importance lies in the independence of the two aspects.
The acts of authorities may create a violation of a provision, even if not in its
substantial aspect, if the procedural standards are not sufficient to provide an
effective protection of the right et vice versa.
60 As stated in: ECHR, Chamber judgement, L.C.B. v. the United Kingdom, 23413/94, 9 June
1998, §36. 61 See AKANDJI-KOMBE, p.122 f. 62 KORFF, p.23 ff. 63 KÄLIN, KIENER.
14
III. Relevant case-law
My overview on the existing case-law is divided into two sub-sections, chosen with
regard to the kind of positive obligation derived for the respective state. The first tier
contains cases, where the Court has held the existence of positive obligations
concerning the violation of rights of natural persons by natural persons64 both not
acting as representatives of the authorities65. As stated before, this does not imply an
immediate effect of the Convention for natural persons, which the Court does
explicitly not state for the Convention itself66, but the obligations of the authorities to
take measures to prevent violations of Article 2 ECHR through non-government-
actors under certain circumstances.
The second tier refers to the more common constellation, where the violation of the
right to life is related to actions by the authorities – which will be of main importance
for the following analysis of the Giuliani case. In both categories, I will concentrate on
cases, where the Court’s findings contributed to the extension of the “minimum
yardstick” and which illustrate the formulation of concrete positive obligations from
Article 2 ECHR. A more extensive list of cases is provided in Annex III.
III.1. Tier I: Actions of non-state-actors
A main analogy adopted in later judgements as well is the line of argumentation in
the case Osman v. the United Kingdom in 199867 on the murder of two British
citizens by another. A school teacher of the younger victim had developed a
pathological attachment to one of his pupils and expressed his state of mind through
several actions – ending up killing the pupil and his father. Although the Court held
that the failure of the state to ensure effective protection was not in breach of Article 2
64 Including cases concerning the suicide of persons, see also KORFF, p.15 ff.. 65 Based on the so-called “Osman-obligation” as held in: ECHR, Grand Chamber judgement,
Osman v. the United Kingdom, 23452/94, 28 October 1998, §115. 66 As in: ECHR, Second Section judgement, Vgt Verein gegen Tierfabriken v. Switzerland,
24699/94, 28 September 2001, §46. 67 As quoted in fn. 63.
15
ECHR due to the lack of evidence for the existence of an imminent threat, it defined a
set of criteria for the establishment of a positive obligation of the authorities to take
preventive measures in comparable situations, which apply in a cumulative fashion:
“Was the victim threatened in a real and immediate way? Did the authorities know
this, or ought they to have known it? Did they take reasonable measures to counter
that risk?”68
In several cases, the Court referred to this so-called “Osman-obligation”, finding e.g.
the Turkish state responsible for the lack of protection offered to persons regarded as
PKK-supporters or activists in south-eastern Turkey, which paved the way for
murders of these persons by anti-PKK-forces. It is interesting to note that the Court
referred to the threat of being “common knowledge”69, giving a base for a breach of
Article 2 ECHR by the mechanism established through the “Osman-obligation”70 This
shows the rather wide interpretation of the responsibilities of authorities. A rather
procedural approach was also based on the “Osman-obligation” in the judgement on
Gongadze v. Ukraine71, where a lack of investigation on the murder of an
oppositional exponent was found to be in breach with Article 2 ECHR because of the
obligations derived from the Osman-case.
The “Osman-obligation” shows, that substantive and procedural aspects are not
heterogeneous in application at all, as it covers the obligation “to take measures to
prevent” with both72. This illustrates the normative standard-setting function of the
Court, well visible in the Nachova73-judgement:
68 ECHR, Grand Chamber judgement, Osman v. the United Kingdom, 23452/94, 28 October 1998,
§115 69 See AKANDJI-KOMBE, p.26. 70 As in: ECHR, First section judgements, Mahmut Kaya v. Turkey, 22535/93, 28 March 2000 and
Yasa v. Turkey, 22495/93, 02. September 1998 among others. 71 ECHR, Second section judgement, Gongadze v. Ukraine, 34056/02, 8 November 2005. 72 KORFF, p.25. 73 As also explicitly held in: ECHR, Grand Chamber judgement, Nachova and others v. Bulgaria,
43577/98 and 43579/98, 6 July 2005, §100: “Such a legal framework is fundamentally deficient
and falls well short of the level of protection “by law” of the right to life that is required by the
Convention in present-day democratic societies in Europe”.
16
“There must be a sufficient element of public scrutiny in the investigation or its results
to secure accountability in practice as well as in theory maintain public confidence in
the authorities’ adherence to the rule of law and prevent any appearance of collusion
in or tolerance of unlawful acts.”74
Another set of cases can be identified concerning the issue of assisted suicide which
was treated in the judgement on Pretty v. United Kingdom75, where a possible
obligation of a state to provide active assistance for the wilful ending of a person’s
own life was clearly denied by the Court, arguing that Article 2 ECHR can in no way
be interpreted to bear a negative aspect in the sense of a right to die. Finally,
especially the case Vo v. France76 has brought up the issue of unborn life and its
protection under Article 2 ECHR, which due to the diversity of existing legal cultures
held a considerable margin of appreciation for states but generally denied a general
protection of the life of the foetus through the provision. Therefore, the existing
rulings by the Court do not have the consistency77 to establish a clear line of
argumentation concerning the interpretation of Article 2 ECHR in those cases – I will
leave it aside as it lacks relevancy for my analysis.
III.2. Tier II: Actions of state-actors
The vertical effect of Article 2 ECHR meaning the protection of life from the actions of
the authorities and their executive bodies has many similarities with a negative-rights
approach on basic fundamental rights. As mentioned, any killing of a person by state-
agents is a breach of the negative obligation of non-interference with the legal good
of human life requiring grounds of justification. Positive obligations have been
established throughout the case-law of the ECHR, mainly concerning the
organization, supervision and investigation of events and actions leading to such a
74 ECHR, First section judgement, Nachova and others v. Bulgaria, 43577/98 and 43579/98, 26.
February 2004, §119 with reference to ECHR, Third section judgement, McKerr v. the United
Kingdom, 28883/95, 04 May 2005, § 111-115. 75 ECHR, Fourth section judgement, Pretty v. the United Kingdom, 2346/02, 29 April 2002. 76 ECHR, Grand Chamber judgement, Vo v. France, 53924/00, 08 July 2004. 77 For more details on the issue, see BLAU and KORFF, p.9 ff.
17
breach – the main relevance of positive duties in this constellation therefore lies
within the procedural aspect.
It is important to note, that the legal base for these notions is to be found through the
principle of proportionality explicitly stated in Article 2 ECHR as the criterion of
absolute necessity. This means - referring to a police operation as an example - the
main question is whether the positive obligation to provide effective and reasonable
preparation, supervision and control of operations to keep the probability of having to
refer to potentially lethal force as low as possible was met by the authorities. As the
Court held in the judgement Güleç v. Turkey78, this obligation contains also aspects
as the appropriate equipment issued to law enforcement bodies. McCann and others
v. the United Kingdom79, established this strict interpretation of the principle of
proportionality and thereby shifted a lot of responsibility from the executing forces to
the planning and preparation of the operation leading to the use of lethal force80. The
case bears similar significance for this group of cases as the Osman-case for the
other.
The investigative component on the other hand considers not primarily the event
leading to the substantive breach and its procedural aspect, but rather the measures
taken and provided by the state to ensure the rule of law and thereby contribute to a
prevention of similar breaches in the future.81 As mentioned before, the Court has
repeatedly stated that insufficient investigative effort may itself constitute a breach of
Article 2 ECHR, even if there has been none in its substantive aspect82 – another
confirmation of the normative function the Court has in ensuring the “effective
implementation” of the Convention.
78 ECHR, Chamber judgement, Güleç v. Turkey, 21593/93, 27 July 1998. 79 As cited above in fn. 51. 80 See AKANDJI-KOMBE and KORFF. 81 BUERGENTHAL/THÜRER, p.234 ff. 82 See Annex III for examples.
18
IV. The Case Giuliani vs. Italy
IV.1. The circumstances of the case 83
On July 19th, 20th and 21st 2001, various protests took place in Genoa surrounding
the G8 summit, which was accompanied by substantial security measures by the
Italian authorities. Thereby, the historic centre where the summit took place was
declared a red zone and cordoned off by means of a metal fence – allowing only
residents and persons working within the area to pass. The red zone was contained
within a yellow zone, which in turn was surrounded by a white zone without any
extraordinary securitization taking place at all. The task of the law-enforcement
agencies was set mainly in preventing demonstrators to enter the red zone and
repelling any possible attempts to break through. Within the yellow zone, mobile
intervention forces were supposed to deal with any incidents and holding up “public
order”. As reported by independent observers, the Italian authorities used methods
and equipment indicating ill-treatment of demonstrators during the events84.
On July 19th, the law-enforcement agencies were prepared for an authorized
demonstration by the Tute Bianche, a group explicitly renouncing violent forms of
protest by contrasting the so-called black bloc-groups. It had announced a series of
strategic objectives, namely to penetrate the red zone. To counter this intention, a
detachment of carabinieri which had previously been planned to remain in one
location was given a dynamic role. A radio communications system was put in place,
which allowed police officers to communicate with the control room located in the
Genoa questura, but not among themselves. The march was blocked at strategic
positions, which forced it to choose a route apart the positions where violent clashes
83 Following the circumstances as described in the Giuliani-judgement of 24. March 2011. The
Court did not take any fact-finding-action itself, which it usually doesn’t. As stated in ECHR, First
section judgement, Avsar v. Turkey, 25657/94, 10 July 2002, §182: “The Court is sensitive to
the subsidiary nature of its role and must be cautious in taking on the role of a first instance
tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular
case.”. 84 For example irregular batons and methods of interrogation. See Amnesty International, Public
Statement, EUR 30/013/2011. Available at:
http://www.amnesty.org/en/library/asset/EUR30/013/2011/en/5bced5d6-96f6-4458-b41f-
981150162fe2/eur300132011en.html (Last access: 24 October 2011).
19
occurred later on. The march of the Tute Bianche, led by a group of journalists
carrying cameras and video-equipment and a contact-group of politicians was
unannouncedly and suddenly85 attacked by tear-gas and police-officers using their
batons, pushing the group back to a junction. There, the demonstrators split into two
groups, one heading to the seafront and the other towards the Piazza Alimonda.
Some demonstrators responded to the attack by throwing objects as glass-bottles
and thrash-bins towards the officers, lateron an armoured carabinieri-van was set
alight.
At around 5 p.m., an unit of about 50 carabinieri, the Sicilia battalion, observed the
presence of demonstrators who appeared aggressive to them. As most of the other
forces, the unit was equipped with riot shields, tear-gas grenades, standard batons
and their standard-issued Beretta 9mm-parabellum semi-automatic. The
commanding officer ordered the unit to charge the group on foot, followed by two
jeeps. The demonstrators succeeded in pushing back the unit by using violent means
like the throwing of hard objects and the use of sticks and planks as batons, why the
battalion was forced to draw back in a disorderly fashion. Pictures taken from a
nearby helicopter showed demonstrators running in pursuit of the police-officers86.
Both jeeps attempted to reverse hastily, as they were confronted with the withdrawal
of the officers and the approaching demonstrators wearing masks and balaclavas.
One of them found its way blocked by an overturned refuse container.
There were three carabinieri on board of the Jeep: The driver, Filipo Cavataio, Mario
Placanica and Dario Raffone. Mr. Placanica, a 20-year-old carabinieri conscript was
suffering from the effects of tear-gas he had thrown during the day, why he was given
permission by his commanding officer to get into the back of the jeep to rest. His
commanding officer had considered Mr. Placanica and Mr. Raffone to be “mentally
exhausted and no longer physically fit for duty”87. Mr. Placanica had been in the
forces for ten months by the time of the incident and admitted to fire his Beretta-pistol
twice in combat training. He had also suffered injuries to the head and his leg for
causes and at a point of the operation the investigations could not exactly define. The
three carabinieri found themselves surrounded by demonstrators wielding stones,
85 Giuliani and Gaggio v. Italy, 24 March 2011, §18. 86 Ibid, §21. 87 “A terra”, Ibid, §29.
20
sticks and iron bars, shouting insults and threats at the jeep’s occupants and
throwing stones and a fire extinguisher at the vehicle. Subsequently, the two side
windows at the rear and the rear window of the jeep were smashed within seconds.
Crouched down in the back of the jeep, Mr. Placanica protected himself on one side
with a riot shield, drawing his Beretta pistol and shouting at the demonstrators to
“leave, or he would kill them”. According to his own assessment given during the
investigations by the Italian authorities, he was panicking by the time and particularly
afraid, that the demonstrators would throw burning devices - “Molotov Cocktails” - on
the vehicle and grown even more afraid after having been injured in the leg by a
metal object and in the head by a stone.88 Mr. Placanica pointed his weapon towards
the smashed rear window and fired two shots. One of the bullets hit Carlo Giuliani
through the balaclava he was wearing, entering his skull under the left eye. He had
been close to the jeep, holding a fire extinguisher in his hands. He fell to the ground
immediately. Mr.Cavataio managed it to restart the engine which had been shut down
before and reverse in an attempt to move off. Thereby, he drove the vehicle over the
body of Mr. Giuliani twice. Subsequently, an intervention by police forces stationed
on the other side of the Piazza Alimonda intervened and dispersed the
demonstrators, a police officer present at the scene called the control room to
request an ambulance at 5.27 p.m. A doctor who arrived at the scene subsequently
pronounced Carlo Giuliani dead.
An investigation was opened immediately after the incident by the Italian authorities.
Mr. Placanica and Mr. Cavataio became subject of criminal proceedings on charges
of intentional homicide. An Autopsy performed within 24 hours on the body of Mr.
Giuliani revealed that his death was caused by the shot and not the vehicle
overrunning him and that the angle of the shot had been downwards. Three expert
reports on request of the public prosecutor were prepared. The third thereof, written
by a panel of four ballistic and forensic experts89 concluded, that the shot had indeed
been fired upwards as a warning, but that the bullet had been deflected by an
“intermediate object”90 causing the hit on Mr. Giuliani’s head. Nevertheless, a further
88 Giuliani and Gaggio v. Italy, 24 March 2011, §36. 89 As it has been remarked in the findings of the Court and especially by critical media, one of the
experts had written an article in a specialist journal before the report was concluded, explicitly
arguing that the shot had been fired in self-defence. See Giuliani v. Italy, 24 March 2011, §56. 90 Ibid., §62.
21
examination was deplored impossible, because the body of Mr. Giuliani had been
cremated in the meantime by the family on authorization by the public prosecutor91.
IV.2. Court findings and argumentation
After the Italian federal court of justice closed the case in May 2003 mainly based on
the ballistic report heavily debated in court as in public92, the parents of Carlo Giuliani
and one of his sisters appealed to the ECHR, alleging breaches of Articles 2, 3, 6, 13
and 38 of the Convention. The argumentation involved the use of excessive force,
the organizational aspect of the police operations surrounding the G8-summit and the
positive duties of the Italian state to support an effective and exhaustive investigation
and several procedural aspects of Article 2 ECHR93. The application was declared
admissible on 6 February 2007.
The Chamber of the 4th section based its rulings in the chamber judgement of 25
August 2009 mainly on Article 2 ECHR, following the division into a procedural and a
substantive aspect as drawn out earlier in this text. Firstly, in its substantive aspect,
whether the use of force had been excessive and whether there was a sufficient
justification for the use of potentially lethal force finally leading to the death of Carlo
Giuliani and whether the Italian authorities had missed to fulfil their positive duties in
terms of setting up an effective legal framework appropriately defining and limiting the
circumstances in which law enforcement agencies may use such force and providing
adequate and effective safeguards against arbitrariness, abuse of force and
91 Ibid., §49. 92 See e.g. The Guardian, “Genoa officer in ‘suspicious’ car crash, 5 August 2003. Source:
http://www.guardian.co.uk/world/2003/aug/06/globalisation.italy (Last access 24 October 2011). 93 As in ECHR, Press release, Forthcoming Grand Chamber judgement in the case of Giuliani and
Gaggio v. Italy, No.246, 22 March 2011: “…that their relative’s death was caused by excessive
use of force; that the adverse consequences were not reduced as far as possible owing to
shortcomings in the Italian legislative framework; that the organization of the operations to
maintain and restore public order was defective; and, finally, that the authorities did not conduct
an effective investigation into Carlo Giuliani’s death.”
22
avoidable accident94. Secondly, in its procedural aspect, whether there had been an
appropriate and effective investigation of the case.95 I.m.o., it is interesting to note
that the question of “sufficient preparation” of the operation in analogy to the
McCann-decision was combined with substantive aspects of a “sufficient legal
framework” in the general question of a breach of “positive obligations” from Article 2
ECHR being breached and not properly separated as different aspects.
The relevancy of Articles 3, 6, 13 and 38 ECHR was dismissed unanimously - which
gives an indication of the extent the development of positive obligations out of Article
2 ECHR has a complementary if not substitutive effect on the “traditional” rights
concerning legal investigations96. The applicant’s argumentation that the failure to
provide immediate assistance to Carlo Giuliani after he fell to the ground and the fact
that the jeep drove over his body twice amounted to “inhuman treatment” under
Article 3 ECHR was also dismissed by the Chamber due to the circumstances.97
Finding Votes Argumentation
No excessive use of force by
the authorities
Unanim.
No breaches with positive
obligations to protect life
stemming from Article 2
5 to 2
Breach with Article 2 in
regard to the positive
obligation to guarantee an
4 to 3 The cremation of Carlo Giulianis body
shortly after his death prevented the
extraction of a fragment detected in his
skull earlier, making it impossible to
94 Here, the Court followed its criteria set out in: ECHR, Grand Chamber judgement, Makaratzis v.
Greece, 50385/99, 20. December 2004; where the substantive aspect of Article 2 concerning
the existing framework of rules for law enforcement agencies were drawn out in detail. 95 ECHR, First section judgement, Giuliani and Gaggio v. Italy, 25 August 2009. 96 The applicants had based their argument on the” “ineffective investigation” also on Articles 6
(right to a fair hearing) and 13 (right to an effective remedy), which was deemed “unnecessary”
by the Chamber. 97 ECHR, press release, Death of a demonstrator at the 2001 G8 summit in Genoa: no violation,
no. 257, 24 March 2011, p.2.
23
effective investigation. define the angle the bullet entered.
No breach of Article 38. Unanim.
Unnecessary to examine
under Articles 3, 6 and 13.
Unanim.
On request by both parties, the case was submitted to the Grand Chamber, which
accepted on 1 March 2010 after an assessment by a panel of five judges. As
mentioned above, the differences between the approach of the Grand Chamber
regarding the positive duties stemming from Article 2 of the Convention are
remarkable insofar, as the latter is much more differentiated and therefore nearer to
the concept of positive obligations as lined out in earlier judgements and this paper.
On the substantive aspect, the Grand Chamber concentrated on the criterium of
“absolute necessity” set forth by the Convention, assessing the situation of Mr.
Placanica in terms of a justification of potentially lethal force by self-defence and -
now contrary to the Chambers argumentation - the substantive positive obligation to
provide a sufficient and efficient legal and regulatory framework as a distinct
category. The Grand Chamber explicitly separated the procedural aspects of Article 2
ECHR from the substantive and also in more detail the investigative obligations from
the ones concerning planning and organization of the operation, which is much more
coherent with the yardsticks set in former case-law. At the same time, it considerably
narrowed the focus of the argumentation compared to the Chamber in treating the
events on the Piazza Alimonda as an “isolated incident”98 and thereby refusing to
take all events and possible shortcomings into account which may have influenced
the situation in a way leading in consequence to the death of Carlo Giuliani. It noted
that:
“…that the present application does not concern the organization of the public-order
operations during the G8 as a whole. It is confined to examining, among other things,
whether in the organization and planning of that event, failings occurred which can be
linked directly to the death of Carlo Giuliani. In that connection it should be noted that
98 As in: ECHR, Joint partly dissenting opinions of judges Tulkens, Zupancic, Gyulumyan and
Karakas on Grand Chamber judgement Giuliani and Gaggio v. Italy, §15.
24
violent incidents had been observed well before the tragic events on Piazza
Alimonda. In any event, there are no objective grounds for believing that, had those
violent incidents not occurred, and had the Tute Bianche march not been charged by
the carabinieri, M.P. would not have fired shots to defend himself against the unlawful
violence to which he was being subjected. The same conclusion must be reached as
regards the changes to the instructions issued to the carabinieri on the eve of the
events and the choice of the communications system.”99
The Grand Chamber thereby highlighted the subsidiary nature of the Convention and
Article 2 ECHR serving primarily the goal of preventing unregulated and arbitrary
taking and endangering of human life by state agents by pointing out the necessity of
not imposing an impossible or disproportionate burden on the authorities by deriving
a positive obligation to prevent every possibility of violence from the provision100.
Concerning the investigative obligation, where the Chamber had found a breach in
the fact that the early cremation prevented any further forensic examination on the
question whether the bullet was fired not as a warning-shot in the air - which through
a unfortunate chain of events was deflected to hit Mr. Giuliani - but as an aimed shot
to the head or at least in a trajectory resulting in a higher occurrence of a deadly hit,
the Grand Chamber did not follow the argumentation. As it concentrated on the
substantive aspect in diminishing the procedural by the logic of isolated incident, it
argued that the application had not contained an allegation of impartiality towards the
investigators101 and therefore the already executed investigations could be regarded
as sufficient, as more investigations could not have been regarded as leading to
substantial new findings. Furthermore, as the cremation took place with the explicit
consent of the family, the Grand Chamber found the authorities’ responsibilities to be
further diminished. It is although remarkable that seven of seventeen judges voted
99 ECHR, Grand Chamber judgement, Giuliani and Gaggio v. Italy, 23458/02, 24 March 2011,
§253. 100 As the Court argued in §245 and 246 of the Giuliani judgement of 24 March 2011: „…bearing in
mind the difficulties involved in policing modern societies, the unpredictability of priorities and
the operational choices which must be made in terms of priorities and resources. […]
Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement
to take operational measures to prevent that risk from materializing”. 101 Giuliani and Gaggio v. Italy, 24 March 2011, §324.
25
against this decision, which shows a divergence in opinion concerning the extent of
positive obligations of the Italian authorities.
The technical details concerning the trajectory of the bullet fired were deemed
irrelevant by the Court, as it concentrated on the situation of Mr. Placanica in the
back of the Jeep surrounded by demonstrators “conducting an unlawful and very
violent attack”102. The fact that Mr. Placanica had given an unmistakable warning
before he fired his weapon as a reaction to the non-ceasing of the attack and that he
could in order to defend himself only fire into the narrow space between the spare
wheel and the roof of the jeep gave in the Grand Chamber’s view sufficient grounds
to find that the defensive action been in itself absolutely necessary103.
Finding Votes Argumentation
No excessive use of force. 13 to 4 Mr. Placanica found himself in a
situation where he could rightly assume
that his life and the life of his colleagues
was in immediate danger, why it was
legitimate to use his personal firearm as
a means of self-defence as it is
intended.
No breach with positive
obligations through
insufficient legislative,
administrative and regulatory
measures concerning the
use of potentially lethal force
and inadequate equipment
for the carabiniere.
10 to 7 Semantic differences between
international and Italian regulations
aren’t sufficient to establish a breach.
Regarding the circumstances of the
case as an isolated incident, the lack of
non-lethal means is irrelevant.
No breach with positive
obligations concerning the
planning and organisation of
10 to 7 Clear separation of the events on the
Piazza Alimonda from other events in
the surrounding area and the operation
102 Ibid., §253 and 254. 103 Ibid., §307.
26
the operation. at large as an isolated incident.
No breach of positive
obligations concerning the
investigations in the case.
10 to 7 The applicants did not allege an
impartiality of the investigating bodies,
the cremation of Carlo Giuliani’s body
had taken place after a consultation of
the parents and with their expressed
consent.
No assessment under
Articles 3 and 6 of the
Convention necessary.
Unanim.
No breach with Article 13 of
the Convention.
13 to 4
No breach of Article 38 of the
Convention.
Unanim.
IV.3. Dissenting opinions
In addition to the judgement, three dissenting opinions were issued. One concerned
the decision of the Court, that no breach of Article 13 ECHR had occurred: The
judges Tulkens, Zupancic, Ziemele and Kalaydjieva found that the applicants’
exclusion from the criminal proceedings as civil parties because of the
discontinuation of the case through the investigating judge rendered them unable to
contribute to the establishment of the facts and the obtainment of evidence. As this is
not primarily relevant for my topic, I will concentrate on the others concerning the
positive obligations of the Italian authorities.
In the second dissenting opinion, the judges Tulkens, Zupancic, Gyulumyan and
Karakas found that there had been a violation of Article 2 ECHR in its substantive
aspect by referring to the Courts former rulings. First, they stressed that the detail
concerning the exact trajectory of the bullet hitting Mr. Giuliani was not to be
dismissed as rather irrelevant as the Grand Chamber did in its final judgement, but in
27
fact was of decisive importance to assess the proportionality of the use of potentially
lethal force in the sense of the test of “absolute necessity” emphasized by the Court
in various judgements104. They built their argumentation on the statement made by
Placanica himself that he had “not been aiming at anyone105” and that no one was in
his field of vision as he fired the shots. The judges claimed that therefore he was not
confronted with a “real and immediate danger” which would have eventually justified
possibly lethal shots on chest height, but rather with an “overall danger”. Or put
differently, the aim of the potentially lethal force facing an overall danger by a crowd
of people would rather lie in the dispersion of said crowd than in the elimination of
individuals106. Therefore, the firing of shots in chest-height without aiming at a person
posing an immediate danger to one’s life or the life of others would lack necessity
and establish a breach of Article 2 ECHR while the firing of warning-shots would not.
The statistically low probability of the “intermediate-object-theory”107 on which the
Italian federal court had based its decision to discontinue the case and which implied
that such a warning-shot fired in the air lead to the death of Mr. Giuliani through an
unforeseeable and uncontrollable factor would therefore not be negligible.
Claiming a breach of the substantial aspect of Article 2 ECHR, the judges also added
a number of procedural arguments. As the “intermediate-object-theory” was highly
disputed and not regarded as definitely proven even by the investigating judge
deciding the discontinuation at domestic level and finding that the applicants had
produced prima facie evidence on the excessive use of force, the judges argued that
the onus to prove the theory would have been on the Italian government108. Also, the
duties and shortcomings of the Italian governments should have been examined
much closer under the view whether the use of force was lastly unavoidable “in action
104 See e.g. ECHR, Grand chamber judgement, Andronicou and Constantinou v Cyprus, 25052/94,
9 October 1997, §171. 105 Joint partly dissenting opinion of judges Tulkens, Zupancic, Gyulumyan and Karakas in: ECHR,
Grand Chamber judgement, Giuliani and Gaggio v. Italy, 23458/02, 24 March 2011, §3. 106 Ibid., §4 ff. 107 Joint partly dissenting opinions of judges Tulkens, Zupancic, Gyulumyan and Karakas, §14. It is
important to note that the Court did not request any other expertise as provided by the Italian
authorities. 108 Ibid. The judges draw an analogy to cases, where the burden of proof was handled exactly
according to this pattern. See also ECHR, Grand Chamber judgement, Togcu v. Turkey,
27601/95, 31 May 2005, §95 among others.
28
lawfully taken for the purpose of quelling a riot or insurrection” as set out in sub-
paragraph c of the second paragraph of Article 2 ECHR.
In the third dissenting opinion, the judges Rozakis, Tulkens, Zupancic, Gyulumyan,
Ziemele, Kalaydijeva and Karakas went one step further. First, based on the 1990
UN-Principles109, they concentrated on the lack of alternatives to the use of lethal
force for Mr. Placanica due to his equipment and the imperative to develop the
protection by Article 2 ECHR in situations of mass-demonstration due to the changes
in the social and political circumstances110. Second, they assessed the Court’s
“isolated incident”-approach as misguiding, as the responsibility of the Italian
authorities on the existing risks was implied through its acceptance to organise a
“high-risk international event” as the G8-summit. Therefore, the positive obligation to
protect life would extend to the development of a “range of means as broad as
possible”111 and the equipment of law enforcement agencies. Following this
argumentation, the failure of the Italian state to do so lead to the situation Mr.
Placanica found himself in the first place. Third, referring to the judgement Halis Akin
v. Turkey112, they cited the obligation derived from McCann, emphasising the
authorities’ responsibilities concerning the planning and management of the
operation, combining it with para. 18 of the UN-Principles which concerns the proper
selection and screening of law enforcement officers to ensure their “appropriate
moral, psychological and physical qualities” – highlighting the fact that Mr. Placanica
was unexperienced, insufficiently trained and left without support from his superior
officers with a loaded gun as “hard to accept”:
“The lack of an appropriate legislative framework governing the use of firearms,
coupled with the shortcomings in the preparation of the policing operations and in the
training of the law-enforcement personnel, disclose real and serious problems in the
109 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials
of 1990, available through the Office of the United Nations High Commissioner for Human
Rights: http://www2.ohchr.org/english/law/firearms.htm (Last access 25 October 2011). 110 As in §2 of the dissenting opinion: „In the case of 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.” 111 As in para. 2 of the UN-Principles. 112 ECHR, Second section judgement, Halis Akin v. Turkey, 30304/02, 13 January 2009.
29
maintenance of public order during the G8 summit. In our opinion, these
shortcomings should be regarded as linked to the death of Carlo Giuliani.”113
Concerning the procedural aspect, the judges mainly criticized the failing to extract
the bullet fragment from Mr. Giulianis body before his cremation. As the Crand
Chamber argued mainly on the ground that Mr. Placanica had acted in legitimate and
proportionate self-defence, the fragment could have been “vital to establish whether
he had fired upwards with the aim of frightening of his assailants or at chest height
with the aim of hitting them or accepting the risk of killing them”.114
I.m.o., the dissenting opinions and also the foregoing Chamber judgement illustrate
not only, that there seems to be no clear consensus within the court concerning the
assessment of aspects of a case as procedural or substantial, but also the different
understandings of the range of positive obligations. As the majority of the judges
concentrated on Mr. Placanica as a state-actor and his individual situation and
reactions, the dissenting opinions emphasize much more the “proper context”115 and
the positive obligations of the government concerning the investigation and the
providing of proof116 for a theory with “low statistical probability” to actually match the
truth. This point of view is emphasized by the fact brought forward in the Chamber’s
argumentation that the decision of the authorities’ experts not to extract a fragment
from Mr. Giuliani’s skull which could have been for major importance for the
assessment of the “intermediate object-theory” by considering it as “a minor detail”117
is obviously questionable.
113 Joint partly dissenting opinion of judges Rozakis, Tulkens, Zupancic, Gyulumyan, Ziemele,
Kalaydjieva and Karakas in: ECHR, Grand Chamber judgement, Giuliani and Gaggio v. Italy,
23458/02, 24 March 2011, §12. 114 Joint partly dissenting opinion of judges Rozakis, Tulkens, Zupancic, Gyulumyan, Ziemele,
Kalaydjieva and Karakas, §14. 115 Ibid., §15. 116 As judge Bratza held in his partly dissenting opinion on ECHR, Grand Chamber judgement,
Agdas v. Turkey, 27 July 2004, §6: “…the test to be applied is not whether there is a sufficient
evidence to satisfy the Court that the use of force was more than absolutely necessary; rather, it
is whether the evidence is such as to satisfy the Court that the use of force was no more than
absolutely necessary in self defence.”. Quoted from: Korff, p.28. 117 „Un particolare irrelevante”, Giuliani and Gaggio v. Italy, 24 March 2011, §130.
30
V. Conclusion
The main insight from an analysis of the case Giuliani v. Italy with regard to the
concept of positive obligations of states concerning Article 2 of the Convention is the
divergence of opinions about its extent and effects. It becomes not only visible within
the Court’s judges itself, which is nothing extraordinary118 regarding earlier dissenting
opinions, but also in the debate around the case and the expectations on the
standards of protection offered by the Convention. The Court itself has emphasized
the guiding principle of subsidiarity in keeping the focus of its findings as narrow as
possible and at the same time i.m.o. demonstrated a certain unwillingness to extend
the reach of positive obligations – explicitly in such a politically sensitive area as
national security. The existence of a tendency to shape the Court’s rulings in a more
activist manner in future may although be seen in the Chamber’s judgement, the 10
to 7-votings on the thereby relevant questions as in the dissenting opinions. The
case-law shows that the “dynamic approach” allows a further progressive
development, which the dissenting opinions i.m.o. already reflect.
The differences in the application of positive obligations between the Chamber and
the Grand Chamber show another tension within the Court’s structures. As the
Chamber used a much less differentiated approach on positive obligations, it was to
be expected that the case would be transmitted to the Grand Chamber. This has
probably economic reasons: As the number of cases reaching the Court grows119, the
Chambers find themselves under high pressure to rule “efficiently” as a selective
instrument – which bears the risk of dogmatically incomplete argumentations lacking
the implementation of the full, complex bandwidth of the case-law.
The tendency to consolidate the concept of positive obligations from the Court’s
rulings in scientific publications will hopefully contribute to a clearer and more
homogenous application of these unique and strong features of European basic
fundamental rights protection in the near future and also provide a more effective
118 For more details on the significance of dissenting opinions in the Court’s judgements, see
BOUSSIAKOU/WHITE. 119 As there had been only 94 judgements before 1984, the Court has decided in 1800 cases
during the year of 2008 alone. There are several reasons for this development, see also
BUERGENTHAL/THÜRER, p.199 ff. and fn. 48 for statistics.
31
minimum yardstick for governments and domestic courts applying the Convention
within their jurisdiction and – probably more important – shaping the rules,
regulations and practices of the agents of the states acting towards citizens to
eventually enhance the overall level of protection.
32
VII. Annexes
VII.1. Annex I
VII.2. Annex II
Constellation Ground of justification
Use of potentially lethal force. Legitimate aim
Absolute necessity
Proportionality
Self-defence, lawful arrest or prevention
of escape, quelling of riots or
insurrections (Art. 2 Sect. 2 Numbers a,
b, c ECHR)
Aimed use of lethal force. Legitimate aim
(self-defence)
Absolute necessity
33
Final and only means possible
Use of not potentially lethal force with
lethal consequences (because of
“extraordinary dispositions”).
Legitimate aim
Absolute necessity
Proportionate
VII.3. Annex III
Year Case Main aspects
1974 X v. Belgium Use of lethal force by a police officer without
authorization. Breach of Art. 2 ECHR.
1995 McCann v. UK Stricter interpretation of proportionality, when
state actions lead to killings. Responsibility
not only with executing, but also with planning
bodies of the authorities.
1998 Gulec v. Turkey Non-appropriate equipment for the
containment of insurrection and mass-protest
leading to killing may result in breach of
Article 2 ECHR.
2000 Pretty v. UK No right to suicide from Article 2 ECHR.
2001 Kenaan v. UK OSMAN-OBLIGATION: Surveillance of
prisoners with suicide-risk.
2001 Cyprus v. Turkey Discriminatory withholding of medical
treatment results in breach of Article 2 ECHR.
2001 Cyprus v. Turkey The Court did not accept the assumption of
death for 1700 cypriotic citizens who
disappeared during the Turkish invasion of
northern Cyprus.
2002 Calvelli and Giglio v. Italy Standard-setting on reasonable efficiency in
investigations and legal processes / sufficient
34
investigation.
2002 Yasa v. Turkey The state of national emergency does not
derogate the investigative obligations on
governments.
2002 Oneryildiz v. Turkey Punishment of state agents for non-justifiable
killings has to be proportionate.
2003 Jordan v. UK The investigating bodies have to be
independent and impartial, the investigation
hast o be adequate and sufficiently efficient.
2004 Vo v. France Non-voluntary, non-intentional abortion in
week 21 of the pregnancy does not result in a
breach of Article 2 ECHR.
2004 Makaratzis v. Greece Insufficient planning and regulation leading to
potentially dangerous actions of police-
officers during the pursuit of a vehicle may
establish a breach of Article 2, even if not
resulting in killing.
2005 Gongadez v. Ukraine OSMAN-OBLIGATION: Lack of investigation
on the murder of an oppositional exponent is
in breach with Article 2 ECHR.
2005 Nachova v. Bulgaria Lethal force used when arresting a person is
disproportionate, if there occurs no violent
resistance. Positive duties to initiate
investigation, as soon as the authorities
become aware of a killing.
2007 Ramsahai v. Netherlands Evidence provided only by colleagues of the
official involved in the lethal use of force is not
sufficient for an effective investigation.
2007 Estimarov v. Russia Lethal use of force must be justified.
35
VIII. Declaration of authorship
I hereby declare that I have written this document without support and only with
legitimate means, exclusively with the sources and the literature indicated.
Pittsburgh, 25 October 2011
Philippe Lionnet