Continuation Part 10: Amanda Knox/Raffaele Sollecito

[Diocletus]

I agree the European Court will not strive to work out what happened in the interrogation. It's hardly necessary anyway. The calunnia conviction must be annulled as being fatally and fundamentally tainted by irregularity and once that goes, the significant role played by that conviction on the murder conviction must, at the very least, call the latter into serious question too.

This is another good point. They will be troubled by the Art. 3 issue (degrading treatment) but will take care of it by simply saying that there was a violation of Art. 6.1 (assistance of counsel/right to silence). Much simpler and cleaner, and the Italians won't whine as much afterwards.

 

[Diocletus]

It should be as well clear though, that the ECHR is no court of merits. It does NOT perform fact-finding activity.
It is actually not even a court of instance, I mean it does not even rule about the legitimacy of proceedings in terms of accuracy, consistency or respect of law and jurisprudence.
The ECHR only decides based on the findings of other courts as for all matters of facts.
This means the ECHR will never find out or rule on alleged facts such as that Knox was coerced or that she was slapped, unless such facts are findings already established by some court.

Hey, Machiavelli--why is it that the ECtHR hasn't rejected Knox's application yet? I thought is was obviously inadmissible???

 

[Machiavelli]

There is no requirement under the ECHR that a collateral complaint process be initiated. It is sufficient to raise the abuse claim as a defense to the charges, as Knox's defense in fact did. This happens all the time in ECtHR cases.

But the ECHR works on a matter of fact finding that was already performed by other court. Not based on words said by this or that. In the Italian system the formal complaint is a mechanism that is related to fact finding: the court will not find there was a beating unless there was a complaint. Anyway, no court ever found there was a beating nor an abuse nor a violation of the defendant's right.
Moreover the ECHR has another condition: It only deals with issues that were already submitted to other courts, after legal systems were already petitioned about that matter and after the legal path to attempt a remedy to the violation was already followed, and after the legal course that was available to the victim has been fully accomplished. A formal complaint would have been the first necessary step in order to establish the finding of a fact, and also it was the legal path that was available in order to pursue the person's interest, which the person however did not follow.

 

[Numbers]

It should be as well clear though, that the ECHR is no court of merits. It does NOT perform fact-finding activity.
It is actually not even a court of instance, I mean it does not even rule about the legitimacy of proceedings in terms of accuracy, consistency or respect of law and jurisprudence.
The ECHR only decides based on the findings of other courts as for all matters of facts.
This means the ECHR will never find out or rule on alleged facts such as that Knox was coerced or that she was slapped, unless such facts are findings already established by some court.

Perhaps I am missing something in your meaning, but indeed the ECtHR does judge whether or not a trial or other state action does follow the state's own laws and constitution. It also examines whether or not a trial or other state action is in accordance with the Convention (ECHR) and ECtHR case law.

Regarding the ECtHR relying only on the findings of other courts, this statement is not the complete truth. For example, the ECtHR will admit evidence from third parties (in the US, called "friends of the court"), if ECtHR agrees to accept such evidence for a case. Examination of ECtHR case law shows that the court will make certain judgments based on the failure of a state body to perform an act, such as an effective investigation; in such cases, there is often no domestic (state) court finding at all.

 

[Machiavelli]

Hey, Machiavelli--why is it that the ECtHR hasn't rejected Knox's application yet? I thought is was obviously inadmissible???

Have you read her application?

 

[Machiavelli]

Perhaps I am missing something in your meaning, but indeed the ECtHR does judge whether or not a trial or other state action does follow the state's own laws and constitution. It also examines whether or not a trial or other state action is in accordance with the Convention (ECHR) and ECtHR case law.

Regarding the ECtHR relying only on the findings of other courts, this statement is not the complete truth. For example, the ECtHR will admit evidence from third parties (in the US, called "friends of the court"), if ECtHR agrees to accept such evidence for a case. Examination of ECtHR case law shows that the court will make certain judgments based on the failure of a state body to perform an act, such as an effective investigation; in such cases, there is often no domestic (state) court finding at all.

Well the Court as far ad I know cannot decide on whether a trial follows a particular state's own Constitution. There are legitimacy courts for that. The ECHR rules on whether the decisions are compatible with the Charts of HR. There is a jurisprudence about compatibility between procedure codes and the ECHR standards, the Italian cpp articles employed on this case are solid under this point of view.

The ECHR is indeed based on the acts from other courts. I am tot saying that the particular finding of a violation is necessary, but the "failure" to pursue a legal action is also something that consists in trial papers, it's judicial finding; for example if you submit a legal complaint and none of the witnesses that you indicated is summoned, that would be a documental evidence of a court's failure to proceed. Such evidence comes from other courts papers, it's not a finding bt the ECHR.
There is no such evidence, there is no such finding in this trial.

 

[Diocletus]

Have you read her application?

No, but it has been read.

 

[Machiavelli]

Numbers,

Dr. Hampikian and Dr. Krane both made attempts to obtain the EDFs. The defense requests were turned aside no later than 2010. Forensic consulting corporation in the U.S. have standard discovery forms on their websites that include reference to these files. What information do you have about discovery in Italy?

I suggest you should word your statement in a more truthful and complete fashion: Dr Hampikian and Dr Krane did not make personally any attempts, they were never involved in the trial, they had no contact to the judges nor other parties experts.
The possible attempts to obtain documentation were only made by defence lawyers. All their instances are documented. It is documented that the only "attempt" done was a flimsy and unclear oral statement by only one of the defence lawyers, late at the end of the 2009 trial, which Massei did not understand; no instances were done before that nor subsequently to that, for years.

 

[Machiavelli]

No, but it has been read.

It's a bit pointless if we talk about something we can't read, and about claims or hearsay not backed by any document. We should see this submission and have info from any alleged pre- hearing, or we don't know what we are talking about.
A sure fact is that Knox is keeping her submission hidden from the public.

 

[Diocletus]

I suggest you should word your statement in a more truthful and complete fashion: Dr Hampikian and Dr Krane did not make personally any attempts, they were never involved in the trial, they had no contact to the judges nor other parties experts.
The possible attempts to obtain documentation were only made by defence lawyers. All their instances are documented. It is documented that the only "attempt" done was a flimsy and unclear oral statement by only one of the defence lawyers, late at the end of the 2009 trial, which Massei did not understand; no instances were done before that nor subsequently to that, for years.

Actually, Massei ordered Stefanoni to produce everything. The prosecution violated the order.

 

[Diocletus]

It's a bit pointless if we talk about something we can't read, and about claims or hearsay not backed by any document. We should see this submission and have info from any alleged pre- hearing, or we don't know what we are talking about.
A sure fact is that Knox is keeping her submission hidden from the public.

We already know what's in it: she says that Italy violated her procedural rights under Art. 6, and coerced her. She also likely alleges a violation of Art. 3.

Of course she's keeping it secret. I'll bet the Italian supreme court would really like to know how it's going to turn out before they rule next year.

 

[Bill Williams]

It's a bit pointless if we talk about something we can't read, and about claims or hearsay not backed by any document. We should see this submission and have info from any alleged pre- hearing, or we don't know what we are talking about.
A sure fact is that Knox is keeping her submission hidden from the public.

Machiavelli - your postings here represent a virtual catalog of a Pro-guilt PR-lobby, known both by what you do address....

..... but most tellingly by what you don't address. In true PR-fashion you are attempting to control the message.

Case in point. You say that the ECHR is not a fact-finding court, but can only consider facts as ruled on by lower Italian courts.

Yet, Cassazione in Italy, itself in March 2013 ruled on the merits of facts as found by lower courts, and did this (unconstitutionally) to reverse a lower court's decision, by making judgement on facts as found.

For instance, both the Massei court in 2009 in convicting, and the Hellmann court in 2011 in acquitting rejected the notion that this was a crime spurred on by a sex-game gone wrong. Cassazione in 2013, reversed that and ordered the Florence court to assess that motive, even though BOTH prior fact-finding courts had rejected it.

Another case in point - after accusing Wladmir De Nunzio of being a criminal, you now will simply not talk about your knowledge of back-room intrigue in Perugia, which you once claimed perverted justice (from your point of view). You implicated De Nunzio in that perversion, now you will simply not address it.

I take it, then, that this is a part of the PR lobby that you fear you can no longer control. But the telling tale of a PR-effort, is that you continually address some things, and simply not answer the question about other things.

 

[carbonjam72]

Machiavelli - your postings here represent a virtual catalog of a Pro-guilt PR-lobby, known both by what you do address....

..... but most tellingly by what you don't address. In true PR-fashion you are attempting to control the message.

Case in point. You say that the ECHR is not a fact-finding court, but can only consider facts as ruled on by lower Italian courts.

Yet, Cassazione in Italy, itself in March 2013 ruled on the merits of facts as found by lower courts, and did this (unconstitutionally) to reverse a lower court's decision, by making judgement on facts as found.

For instance, both the Massei court in 2009 in convicting, and the Hellmann court in 2011 in acquitting rejected the notion that this was a crime spurred on by a sex-game gone wrong. Cassazione in 2013, reversed that and ordered the Florence court to assess that motive, even though BOTH prior fact-finding courts had rejected it.

Another case in point - after accusing Wladmir De Nunzio of being a criminal, you now will simply not talk about your knowledge of back-room intrigue in Perugia, which you once claimed perverted justice (from your point of view). You implicated De Nunzio in that perversion, now you will simply not address it.

I take it, then, that this is a part of the PR lobby that you fear you can no longer control. But the telling tale of a PR-effort, is that you continually address some things, and simply not answer the question about other things.

Great post Bill, thanks for pointing out that ISC rejected facts found at both lower courts to basically invent the result they wanted.

Mach, please do talk about De Nunzio, and your theories in that regard. I actually probably agree with you that strings were pulled, and that they pulled in Hellman, precisely because they needed to get their "A" team on this, after the fiasco of incompetence and corruption on international display at the first trial. But I know you'll put it more elegantly than I.

 

[sept79]

Mignini was the Public Minister not the investigating judge. The investigating judge (GIP) was Claudia Matteini.

Ah yes, Judge Claudia Matteini, the judge who's pronouncements against Knox/Sollecito on Nov. 8, 2007 proved to be all wrong--100% incorrect. This was the hearing that Knox/Sollecto were ushered into after having spent 3 days in solitary confinement subsequent to their arrest on Nov. 6. Yes, Knox/Sollecito languished in solitary without access to lawyers prior to the hearing with Judge Matteini.

 

[Planigale]

Ok..... tea leaves-reading time.....

Is not Nencini saying that to request some statements about the screams made by Capezzali, Dramis and Monacchia, that one must **first** question their veracity?

Don't get me wrong, I am not sure why one needs to explicitly question their veracity, before the court will order audiometric testing..... isn't the request for testing an implicit doubting of their veracity?

C'mon, A.L., there is at least the thinnest sliver of a shadow of "an argument" Nencini is making there!!!! Somewhere in Italian law, acc. to Nencini, he's implying that the defence has to accuse them explicitly of being liars before ordering the testing.....

Ok, ok, I'm reaching here. But reading Nencini does that.

No they can be absolutely accurate with their statements about hearing a scream. The question is was the scream related to the murder - the prosecutions assumption but not the witnesses claim. Defence can argue the scream could not have originated from the murder and wish to prove that with acoustic studies without questioning the veracity to the witness. Another logical error and failure in reasoning by Nencini.

 

[Numbers]

Well the Court as far ad I know cannot decide on whether a trial follows a particular state's own Constitution. There are legitimacy courts for that. The ECHR rules on whether the decisions are compatible with the Charts of HR. There is a jurisprudence about compatibility between procedure codes and the ECHR standards, the Italian cpp articles employed on this case are solid under this point of view.

The ECHR is indeed based on the acts from other courts. I am tot saying that the particular finding of a violation is necessary, but the "failure" to pursue a legal action is also something that consists in trial papers, it's judicial finding; for example if you submit a legal complaint and none of the witnesses that you indicated is summoned, that would be a documental evidence of a court's failure to proceed. Such evidence comes from other courts papers, it's not a finding bt the ECHR.
There is no such evidence, there is no such finding in this trial.

The result of Luca v. Italy was that Italy was compelled to change its constitution. It changed Article 111 to prevent use of testimony from a witness that would not be cross-examined in another person's trial except with permission of the defendant or under other very special circumstances. The point is that Italy's constitution did not conform to the EConHR and Italy changed it as a result of Luca v. Italy.

Perhaps you are neglecting the role of the Committee of Ministers of the Council of Europe in your consideration. The ECtHR does not enforce its rulings directly or conduct investigations by itself; it does, in accordance with the EConHR, use the CoM of the CoE to enforce and extend its rulings.

ETA: There is a good flow chart showing how an application moves through ECtHR at:

http://www.echr.coe.int/Documents/Case_processing_ENG.pdf

 

[Numbers]

It's a bit pointless if we talk about something we can't read, and about claims or hearsay not backed by any document. We should see this submission and have info from any alleged pre- hearing, or we don't know what we are talking about.
A sure fact is that Knox is keeping her submission hidden from the public.

It's possible that Italy will wish to have a "friendly settlement" because its legal position in respect to the EConHR may be difficult. To accommodate friendly settlements, court information is kept confidential. It's a rule in an article of the EConHR.


ARTICLE 39
Friendly settlements

1.
At any stage of the proceedings, the Court may place itself
at the disposal of the parties concerned with a view to securing a
friendly settlement of the matter on the basis of respect for human
rights as defined in the Convention and the Protocols thereto.
2.
Proceedings conducted under paragraph 1 shall be
confidential.
3.
If a friendly settlement is effected, the Court shall strike the
case out of its list by means of a decision which shall be confined
to a brief statement of the facts and of the solution reached.
4.
This decision shall be transmitted to the Committee of
Ministers, which shall supervise the execution of the terms of the
friendly settlement as set out in the decision.

 

[Numbers]

We already know what's in it: she says that Italy violated her procedural rights under Art. 6, and coerced her. She also likely alleges a violation of Art. 3.

Of course she's keeping it secret. I'll bet the Italian supreme court would really like to know how it's going to turn out before they rule next year.

IMO, the application would rely on Articles 3, 5, and 6 at a minimum.
#3) Inhuman or degrading treatment; failure to effectively investigate same; for police conduct at the interrogation
#5) Deprivation of the right to liberty: Hellmann sentenced her to time served for the calunnia conviction he imposed, and IIUC this was finalized by CSC
#6) Violation of right to a fair hearing: denial of right to be silent; denial of lawyer to suspect at first interrogation; denial of neutral, fair interpreter; unfair trial by admission of coerced and incited false statements from interrogation and period afterward with no lawyer

 

[Chris_Halkides]

still waiting for the EDFs

I suggest you should word your statement in a more truthful and complete fashion: Dr Hampikian and Dr Krane did not make personally any attempts, they were never involved in the trial, they had no contact to the judges nor other parties experts.

Machiavelli,

My statement was carefully worded; your disingenuous attempt to muddy the waters is noted. The nature of the relationship between the Idaho Innocence Project and Ms. Knox was disclosed in a couple of news articles that appeared in Ireland in the spring of 2010. The point that everyone else should take note of is that there is no way for any DNA expert to perform a complete case review without all of the records. Why should Dr. Krane get involved if he cannot get everything he needs? A better question is why can't the prosecution cough them up.

 

[Diocletus]

It's possible that Italy will wish to have a "friendly settlement" because its legal position in respect to the EConHR may be difficult. To accommodate friendly settlements, court information is kept confidential. It's a rule in an article of the EConHR.


ARTICLE 39
Friendly settlements

1.
At any stage of the proceedings, the Court may place itself
at the disposal of the parties concerned with a view to securing a
friendly settlement of the matter on the basis of respect for human
rights as defined in the Convention and the Protocols thereto.
2.
Proceedings conducted under paragraph 1 shall be
confidential.
3.
If a friendly settlement is effected, the Court shall strike the
case out of its list by means of a decision which shall be confined
to a brief statement of the facts and of the solution reached.
4.
This decision shall be transmitted to the Committee of
Ministers, which shall supervise the execution of the terms of the
friendly settlement as set out in the decision.

This is an interesting point, Numbers.

I had always assumed that any ECHR proceedings would be handled by a person equally as stupid and corrupt as all of the other judges and magistrates that have been involved in this case.

But, let's imagine for a moment that Italy has an actual human rights professional-type lawyer who reviews applications as they come in. And, let's say that person reviews the matter and says "well, we violated this girl's human rights and we're going to lose, so we have two options: i) we go down with the ship and look like fools and jerks to the world, or ii) we cut a deal and run." Also, let's assume that the decision-maker is someone smart who knows that you have choose door no. 2.

What does a friendly settlement look like? It can't just be "aw shucks let's forget about that little old callunnia" because you can't fish the turd out of the punchbowl and still have a party. They have to somehow agree to a new trial on the murder charges.

One thing that makes me doubt all of this is that this whole monstrosity is a creation of the Italian supreme court.