Continuation Part 10: Amanda Knox/Raffaele Sollecito

[Numbers]

No. The defendant in the ECHR proceeding will be the state of Italy. So, Italy will be the embarrassed party at the end of the day. They should have thought of this before the Italian supreme court doubled down on stupid.

It's absolutely true that Italy will be the ECtHR defendant. The state agents (Mignini, Giobbi, Comodi, etc.) may be mentioned, possibly only by their job titles and initials, if necessary. Any state agent actions considered improper or contributing to a violation of rights by the ECtHR may be discussed in the judgment, but the person will not be criticized. The state agents are not defendants before the ECtHR.

 

[Chris_Halkides]

discovery in theory versus in practice

Here is what one Italian lawyer (not one who is friendly to Ms. Knox or Mr. Sollecito) had to say: "There is total discovery in Italian law. If lawyers want them, they can get them." The only thing I can think to add to this discussion right now is that Professor Hampikian's discussing this face-to-face with Carlo calla Vedova (as Charlie Wilkes indicated) does not mean that this was the first time the issue had arisen. It is no better than feckless to assume that it was, given today's discussion, which demonstrates otherwise.

 

[carbonjam72]

No. The defendant in the ECHR proceeding will be the state of Italy. So, Italy will be the embarrassed party at the end of the day. They should have thought of this before the Italian supreme court doubled down on stupid.

I understand Italy is the defendant. But didn't the council of Ministers in the example provided, in trying to insure a general remedy, criticize Italy for not also reprimanding the public ministers in the case?

I'm reading citation below (copied from higher up on this same page), as requiring Italy to insure that these types of goofs are not only generally prohibited in practice, but when mistakes are made, the mistakes are acknowledged. In the below case, it wasn't enough to criticize the judges, it seemed a concern that the public prosecutor had escaped without censure.

I would think the ECHR will request, or continue to advocate, for an investigation of the incident, and an assessment of Mingini's role (well, a guy can dream, right?).

Here's a snippet from above -

In the present case, at the time Angelo Izzo was granted day release it had not been possible to identify Maria Carmela Linciano and Valentina Maiorano as potential targets of a lethal act on his part. The case thus concerned the obligation for the Italian judicial system to afford general protection to society against potential danger from a person who had been convicted for a violent crime.
In this connection, the Court could not find fault in general with the arrangements in Italy for the resettlement of prisoners. The system had a legitimate aim and provided for sufficient safeguards. However, the manner in which that system had been applied in Mr Izzo’s precise case was questionable. Firstly, the Court noted that the positive factors which had led the Palermo sentence execution court to grant day release, in particular the favourable reports by probation officers and psychiatrists, had been counterbalanced by many indications to the contrary. Throughout his imprisonment Angelo Izzo had in fact regularly committed criminal offences and his behaviour had shown that he had a tendency to disrespect the law and authority. In view of the dangerousness of a repeat offender who had been convicted of exceptionally brutal crimes, those circumstances should have led the sentence execution court to be more prudent. Secondly, the Court noted that the public prosecutor of Campobasso had been promptly made aware of the fact that Angelo Izzo, once granted day release, had re-established contacts with the criminal underworld and was actively planning criminal acts. Despite the fact that it had taken this danger seriously, and had even ordered police surveillance, the public prosecutor’s office had not informed the sentence execution judge with a view to the possible withdrawal of the day release scheme.

The Court took the view that the granting by the Palermo sentence execution court of day release to Angelo Izzo, despite his criminal record and behaviour in prison, together with the failure by the public prosecutor’s office of Campobasso to forward information on his criminal activities to the sentence execution judge, had constituted a breach of the duty of care required by Article 2 of the Convention. Accordingly, the Court held unanimously that there had been a violation of Article 2 under its substantive head.

Procedural limb of Article 2

The Court reiterated that the positive obligations laid down in Article 2 of the Convention also required by implication that an efficient and independent judicial system should be set in place by which the cause of a murder could be established and the guilty parties punished, including where State agents or authorities were allegedly responsible.
In the present case, a criminal investigation into the murder of Maria Carmela Linciano and Valentina Maiorano had been opened quickly and had led to the sentencing of Angelo Izzo to life imprisonment. A disciplinary inquiry had also been conducted in order to determine the responsibilities of the judiciary in respect of this double murder.

However, whilst the Minister of Justice had brought disciplinary proceedings against the judges of the Palermo sentence execution court, as a result of which they had been reprimanded, the applicants’ criminal complaint against the public prosecutors of Campobasso had not been acted upon and no disciplinary action had been taken against those prosecutors. Therefore, the State had not entirely fulfilled its positive obligation to ascertain whether any responsibility could be imputed to its agents in respect of the murder of Maria Carmela Linciano and Valentina Maiorano. The Court thus also held, unanimously, that there had been a violation of Article 2 of the Convention under its procedural head.
Under Article 41 (just satisfaction) of the Convention, the Court awarded 10,000 euros to Giovanni Maiorano and 5,000 euros to each of the other applicants in respect of non-pecuniary damage.

 

[Numbers]

It's a fantasy. Italian law doesn't allow possibility of friendly settlement on a criminal trial. No Italian authority could have a mandate to negotiate on this. The only authority with powers in matter of judicial decisions in criminal law is the Supreme Court, and they are not going to negotiate. You may find more flexible negotiators in the ISIS.

Looking at statistics compiled and issued by the ECtHR for the years 1959-2013:

Italy had 2,268 judgments. Of these, 1,721 found at least one violation of the ECHR, while 58 found no violation of the ECHR. There were 353 "Friendly settlements/striking out judgments", and 136 "Other judgments: just satisfaction, revision, preliminary objections and lack of jurisdiction".

From the statistical table information, it is not clear how many of the "friendly settlements/striking out judgments" were related to criminal cases rather than civil cases. But clearly, Italy is not a stranger to friendly settlements.

BTW, here's a summary of the number of some relevant violations for Italy 1959-2013 (I believe "friendly settlemens/striking out judgments are not included in these detailed results:
(Note that the violations occurred several to many years before the ECtHR verdict.)

Right to life, Article 2: 2
Lack of effective investigation, Art. 2: 4
Prohibition of torture, Art. 3: 4
Inhuman or degrading treatment, Art. 3: 20 Lack of effective investigation, Art. 3: 2 Right to liberty and security, Art. 5: 29 Right to fair trial, Art. 6: 256Length of proceedings, Art. 6: 1,187
Non-enforcement, Art. 6: 10
Right to effective remedy, Art. 13: 81

 

[anglolawyer]

According to their report there is no refusal nor failure to fulfill requests on the part of Stefanoni. In their cross questionings they even state the contrary, they praise the complete collaboration and point out they obtained all what they requested.

This is like pushing a little ball of mercury around on a table. You say they never asked, I (and others) point out where they did then you say they did not record a 'refusal'. They recorded the request and they record what they received, which did not include any EDFs. So they recorded non-compliance.

Someone above just posted an exchange between Comodi and Stefanoni which suggests Comodi required demonstration of need for or entitlement to the EDFs. That is not consistent with your position.

 

[Desert Fox]

Looking at statistics compiled and issued by the ECtHR for the years 1959-2013:

Italy had 2,268 judgments. Of these, 1,721 found at least one violation of the ECHR, while 58 found no violation of the ECHR. There were 353 "Friendly settlements/striking out judgments", and 136 "Other judgments: just satisfaction, revision, preliminary objections and lack of jurisdiction".

From the statistical table information, it is not clear how many of the "friendly settlements/striking out judgments" were related to criminal cases rather than civil cases. But clearly, Italy is not a stranger to friendly settlements.

BTW, here's a summary of the number of some relevant violations for Italy 1959-2013 (I believe "friendly settlemens/striking out judgments are not included in these detailed results:
(Note that the violations occurred several to many years before the ECtHR verdict.)

Right to life, Article 2: 2
Lack of effective investigation, Art. 2: 4
Prohibition of torture, Art. 3: 4
Inhuman or degrading treatment, Art. 3: 20 Lack of effective investigation, Art. 3: 2 Right to liberty and security, Art. 5: 29 Right to fair trial, Art. 6: 256Length of proceedings, Art. 6: 1,187
Non-enforcement, Art. 6: 10
Right to effective remedy, Art. 13: 81

Doing a bit of math, that means that 74.9% of Italian cases brought up to the ECHR have one or more case of violating the ECHR
As well, only 2.6% of cases have no violation of the ECHR.

Pretty damning to be.

 

[tsig]

Not in a million years. Mach is not here for truth, he's here for advantage. He is a leading figure in the on-line Pro-guilt PR lobby.

What advantage does he gain by posting here?

 

[Numbers]

I understand Italy is the defendant. But didn't the council of Ministers in the example provided, in trying to insure a general remedy, criticize Italy for not also reprimanding the public ministers in the case?

I'm reading citation below (copied from higher up on this same page), as requiring Italy to insure that these types of goofs are not only generally prohibited in practice, but when mistakes are made, the mistakes are acknowledged. In the below case, it wasn't enough to criticize the judges, it seemed a concern that the public prosecutor had escaped without censure.

I would think the ECHR will request, or continue to advocate, for an investigation of the incident, and an assessment of Mingini's role (well, a guy can dream, right?).

Here's a snippet from above -

The Council of Ministers may go beyond the written judgment of the ECtHR, IIUC, in carrying out the mission of advancing human rights. The ECtHR is more likely to criticize someone by job title than by name. But that may simply be a kind of diplomatic cover. ECtHR could call for Italy to hold its agents more accountable, for example. It is interested in the individual case and the over-all system in terms of advancing human rights.

 

[Numbers]

What advantage does he gain by posting here?

My belief is that he or she posts here in order to help forum members understand Italian law and legal practice as he or she understands it. It's a selfless motivation, since the understanding provided raises counterargument and discussion.

 

[Machiavelli]

One only needs to read Machiavelli's last 7 to 10 posts here, and the responses to finally "get" that he's here to provide a Pro-guilt spin one everything, even if he has to outright lie - or "forget" that refutation to his regurgitated claim was posted a long time ago.

Why do you accuse me of lying? Can't you resort to anything else now? I never noticed any disproval about my claims. I've never seen anything like someone showing that I am lying (about what, btw?). I have not being seeing a claim that has some touch with the real world fro the pro-Knox crowd over the last times, actually. All what I see is a kind if rabid conspiracy theory, that encompasses in is projection possibly most of a whole country.

No refutation or reasonable counter argument to my opinions was "posted" as far as I know. I am waiting to see some reasonable arguments.
The defence obviously has son arguments, in any case the defence always has son argument, like in any battle any side always has some weapon and always causes some degree of damage to the other army (accusation argument, evidence, in a case) with no exception. Yet there is one side that loses, having an argument doesn't mean that argument is strong and will prevail. The defence has lost because their arguments are weak. Their supporters may go on repeating them and making up new ones, but they'll remain wrong, false, discredited or weak arguments, insufficient to change the outcome.

as one poster said a while ago, all Machiavelli does is re-boot and start again

Sorry, what do you think the Knox supporters have been doing here? As long as they repeat the same wild statements, they can only obtain reminders of the same arguments.

He's accused me of arguing through innuendo and allegation. Good on him.

To be more precise, I accused you about arguing about your re-interpretation of what other posters or other sources said. The innuendo and allegation seems merely one aspect of your method. Your method actually appears to include focusing on side topics, on re-bounce what you interpret what allegedly someone else said about a topic, instead of talking about a topic.

He's now opened the door to this being seen judicially as a differing case against Knox as against Sollecito, with a "0.01% chance the ISC will amend the case against Sollecito.

For me this is virtual acknowledgment of what we have known right from Nov 6, 2007. The PLE, and now the ISC, is out to get Knox at all costs, and Sollecito is collateral damage. If Sollecito plays ball - as per Nencini's own after-trial remarks - it will go easy on him.

Don't you think this interpretation is a bit stretched? How can you equate a 0.01% probability to something "easy"?
And what is the rationale and motive for the SC for going "after Knox"? How does this make any sense?
And what was the motive for the police (by the way who do you mean by 'PLE', is that an entity in your mind? Is it one thing, does it have a head, a thinking and planning unit?) to decide from Nov. 6. 2007.
No reasonable person sees arguments in such a series of visions.

This is not about the evidence, witness the 6 years of rebooting, as if things have not been adequately refuted? []

What, "adequately refuted", when people here are unable to respond to even a minuscule point, such as that TMB is less sensitive and less specific than luminol, or are unable to reasonably back statements such as that Guede was favored at his trial, that the prosecution violated the code by denying legal counsel or that Stefanoni lied on this or that or denied access to data (just to mention few minor claims).

 

[Machiavelli]

My belief is that he or she posts here in order to help forum members understand Italian law and legal practice as he or she understands it. It's a selfless motivation, since the understanding provided raises counterargument and discussion.

In fact, I post because I want to make people privy to my personal beliefs and about my reasoning and views, but also because I am interested in observing the cultural and mental process of the pro-Knoxes and I want to note their arguments, reactions and line of thought.

 

[Numbers]

Doing a bit of math, that means that 74.9% of Italian cases brought up to the ECHR have one or more case of violating the ECHR
As well, only 2.6% of cases have no violation of the ECHR.

Pretty damning to be.

To be fair, there are actually many thousands more cases brought against Italy (and against a number of other countries, especially Russia, Ukraine, Turkey, and some of the nations of the former Communist bloc) than actually are judged.

Many thousands of cases are declared inadmissible by the ECtHR after a quick review. While some are inadmissible for technical issues - such as missing the 6 month post-finalization deadline for the submission - many cases that obviously do not include any violation are excluded from the ECtHR judging system. As of 30 September 2014, there were a total of 85,000 cases pending at ECtHR, and only 47 judges, so reducing the number to those that are somehow the most important is critical. There is a priority policy:

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

ETA: Because ECtHR has a policy to reject inadmissible applications as quickly as possible, we can be confident that Amanda Knox's application is at this time still at some stage, being considered, within the system. Note that the defendant (respondent) state named in any application gets the opportunity to argue that the application is inadmissible.

 

[Machiavelli]

Doing a bit of math, that means that 74.9% of Italian cases brought up to the ECHR have one or more case of violating the ECHR
As well, only 2.6% of cases have no violation of the ECHR.

Pretty damning to be.

Judgments, not cases "brought up to".
By contrast, 100% judgments at the ECHR against Norway had a violation. It's an example, not to confuse judgments with cases brought up.

 

[Diocletus]

What, "adequately refuted", when people here are unable to respond to even a minuscule point, such as that TMB is less sensitive and less specific than luminol, or are unable to reasonably back statements such as that Guede was favored at his trial, that the prosecution violated the code by denying legal counsel or that Stefanoni lied on this or that or denied access to data (just to mention few minor claims).

Still waiting for you to show us that case from anywhere in the world where luminol blobs that are negative to TMB have been used in trial against a defendant. It might be out there, but show it to us.

 

[Diocletus]

Judgments, not cases "brought up to".
By contrast, 100% judgments at the ECHR against Norway had a violation. It's an example, not to confuse judgments with cases brought up.

In fairness to Italy, they have about a gazillion length of proceedings cases due to the abysmal and systematically deficient administration of their justice system. These aren't as bad as your standard Art. 6 violation cases, unless you are the poor slob who had to litigate for 27 years to collect a $2,000 debt.

 

[Machiavelli]

This is like pushing a little ball of mercury around on a table. You say they never asked, I (and others) point out where they did then you say they did not record a 'refusal'. They recorded the request and they record what they received, which did not include any EDFs. So they recorded non-compliance.

Someone above just posted an exchange between Comodi and Stefanoni which suggests Comodi required demonstration of need for or entitlement to the EDFs. That is not consistent with your position.

They stated compliance, this is what they recorded. The point can be interpreted differently depending on your personal bias. But my interpretation is the relevant one under the law. And btw, my position is completely consistent.
My position does not consider relevant whether raw data files were handed over to C&V or not. This is not relevant at all. What they received is not relevant. It is not proven from the papers that Stefanoni refused to comply to their requests at the end or whether they changed their own requests themselves. This is not shown by the paper, the exchange posted is incomplete, and the factual details of the final settlement are irrelevant in order to make a point.

Comodi herself never spoke about raw data. Indeed, I believe accessing raw data would require a special entitlement and only those images extracted from raw data during an incidente probatorio procedure should be allowed in the hands of the defence, but this is my personal opinion.

 

[Diocletus]

Indeed, I believe accessing raw data would require a special entitlement

Oh, you mean like a judge's order to turn over the raw data?

 

[Diocletus]

I believe accessing raw data would require a special entitlement and only those images extracted from raw data during an incidente probatorio procedure should be allowed in the hands of the defence, but this is my personal opinion.

Indeed, that is your opinion and not the law. But, tell us why you have such a strange and unethical opinion?

 

[carbonjam72]

The Council of Ministers may go beyond the written judgment of the ECtHR, IIUC, in carrying out the mission of advancing human rights. The ECtHR is more likely to criticize someone by job title than by name. But that may simply be a kind of diplomatic cover. ECtHR could call for Italy to hold its agents more accountable, for example. It is interested in the individual case and the over-all system in terms of advancing human rights.

Yes, fair enough. But can you imagine the 'Public Minister of Perugia' being specifically pointed out for 'manifest illogicality', and all the others for the gems of stupidity and corruption they have provided along the way?

 

[Numbers]

Judgments, not cases "brought up to".
By contrast, 100% judgments at the ECHR against Norway had a violation. It's an example, not to confuse judgments with cases brought up.

Norway had only 35 ECtHR judgments in the period 1959-2013: 25 had at least one violation; 10 had no violation. Norway has approximately 10% the population of Italy, but over 1959 - 2013 it had far fewer than 10% of the number of ECtHR judgments than Italy had: Italy, 2,268; Norway, 35. The number of ECtHR applications and judgments varies considerably among the CoE states; the northern European ones (Denmark, Norway, Sweden, etc.) and some others tend to be among those on the low end, even when population size is considered.