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ECHR delimits the scope of 'Excessive Use of Force' in demonstrations

The European Court of Human Rights (ECHR) has recently rendered its judgment in Gaggio v Italy (Application No 23458/02) concerning the death of the applicants’ son and brother while he was taking part in clashes  as part of demonstrations during the G8 summit in Genoa, Italy in July 2001. Relying on Article 2, the applicants alleged that Giuliani’s death had been caused by excessive use of force, and that the organisation of the operations to maintain and restore public order had been inadequate. In addition, they argued that the failure to provide immediate assistance amounted to a violation of Articles 2 and 3 (prohibition of inhuman treatment).

In this regard it noted that the Italian police officer, who had fired the shots, had been confronted with a group of demonstrators carrying out a violent attack on the vehicle he was in, that he had issued warnings, holding his weapon in such a way that it was clearly visible, and that he had fired only when the attack had continued. The Court agreed with the investigating judge that the use of lethal force had not exceeded the limits of what was absolutely necessary in order to avert what the officer had honestly perceived to be a real and imminent danger to his life and the lives of his colleagues.

The question arises, what is the evidence required to substantiate the existence of “a real and imminent danger to his life”? In so doing, the Court’s rationale takes into account a number of factual and normative considerations. The Court had to consider whether in planning and directing the public-order operation the Italian authorities had minimised the risk of lethal force being used. It concluded that although there had been a number of shortcomings in the organisation of the operation, the Court was unable to establish the existence of a ‘direct and immediate link’ between any shortcomings in the planning of the operation and the death of the demonstrator.

In holding that the circumstantial threshold for the justification of the use of force in the context of the demonstration had been fulfill, the Court stated,

“As to the use of the weapon, the [Italian] judge considered that it had been absolutely essential, given that the detailed reconstruction of the events suggested that M.P. had been in a situation of extreme violence disturbing public order and directly threatening the physical integrity of the carabinieri… In assessing the danger the judge took into account the number of demonstrators and the overall methods of action such as the acts of violence against M.P. and the other occupants of the jeep… This situation of persistent danger undeniably amounted, in the judge’s view, to a real and unjust threat to the personal integrity of M.P. and his colleagues and called for a defensive reaction that had been bound to culminate in M.P.’s using the only means at his disposal: his weapon.” (para. 220)

The Court then concluded that the officer had “honestly believed that his life was in danger, and considers that he used his weapon as a means of defence against the attack targeting the jeep’s occupants, including himself, perceiving a direct threat to his own person” (para. 224). Therefore, the use of force was seen to be proportionate, meaning that there was no violation of Article 2 (the right to life). It follows that the use of force in such situations could only be justified if absolutely no other means are available to avoid a threat to life. So that if the police forces were not sitting in a closed car encircled by demonstrators, unable to escape to a safe haven, arguably, the use of a powerful weapon would not have been legitimised.

On the whole, the judgment presents a significant instance for the definition of the legal limits on the use of force in demonstrations. Not only is the amount of force applied an important criterion in determining the limits, the decision to use fore in itself, regardless of its extent, should be scrutinized in light of the position of the specific officer, coupled with the nature of the demonstration or the general intention to restore public order. In essence, this is where the rules pertaining to self-defense come into play,  requiring the existence of a “real and immediate threat” of a very demanding evidential threshold.

Although this particular conclusion is no novelty, the case law of the ECHR, once again represents an important source of international human rights law, this time in the field of the use of force in demonstrations being that there are no other authoritative guidelines in this regard on the international level. These international norms should be of particular consequence for countries where the violation of the right to life of demonstrators is omnipresent. In such countries, in the case of both violent and even peaceful demonstrations (including, inter alia, the peaceful demonstrations conducted by international and Palestinians activists against the Separation Wall in the occupied Palestinian territories), the killings of demonstrators often constitute arbitrary deprivations of life.

The 104-page judgment, including extensive factual accounts of the demonstration, consisting of witness statements and expert opinions, is in itself an indicator of a remarkably efficient and thorough judicial analysis. It should be noted, for those less familiar with the Court’s jurisprudential practice, that although the Court did not conduct its own fact-finding, still in-depth judicial examinations of this kind are remarkable. It is therefore unquestionably an important case from a formalistic perspective on the Court’s judicial practice, but also a contradictory one taking into account the dissenting opinions in the case.

It is these indicators, evident from the kind of judicial practice that Gaggio reflects, amongst others, both procedural and substantive, that should pave the way in universalising the jurisprudence of the ECHR  and making its jurisprudence a normative source to be relied on by every national jurisdiction as well as  international court (namely, the ICJ who has yet to rely on judgments of the ECHR, although arguably it is not prevented from doing so by any substantial legal or political factor) in their assessments of human rights violations.

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