Continuation Part 10: Amanda Knox/Raffaele Sollecito

[Numbers]

Another part of the Incidente Probatorio
Note highlighted section
Same source, google translated

Art. 401.
Audience.

1. The hearing shall be held in closed session with the participation required of the prosecutor and the defense of the person under investigation. He is also entitled to participate in the defense of the victim.

2. In case of non-appearance of the counsel for the person under investigation, the court shall appoint another defense in accordance with Article 97, paragraph 4.

3. The person under investigation and the victim have the right to attend the Special Inquiry when it is necessary to examine a witness or another person. In other cases, they can assist with the authorization of the court.

4. We do not allow discussion and pronunciation of new measures on issues relating to the admissibility and merits of the request.

5. The tests are taken with the manner laid down for trial. The defender of the injured party can ask the court to put questions to the persons examined.

6. Without prejudice to Article 402, it is forbidden to extend the taking of evidence to facts about persons other than those whose defenders involved in recording evidence. And 'in any case may not verbalize statements regarding these subjects.

7. If taking the test does not end in the same hearing, the court shall have the reference to the next working day, unless the activities of the test requires a longer term.

8. The minutes, things and documents acquired in the accident evidence shall be submitted to the public prosecutor. The defendants have the right to examine and take copies of them.

 

[Desert Fox]

Actually, when you think about it, paranoia about what the defence might do with their copy of the EDFs is a predictable corollary of a mindset in which everybody thinks everybody else is cheating, plotting and lying all the time. In fact, it would be stupid not to join in. Maybe Italy is simply passed the tipping point at which it becomes impossible to cling onto altruistic values like honesty, integrity etc without being a fool.

I am wondering if there is a way to get the Italian people to tell the courts that they just will not accept the way the system runs? There are a number of other cases where the courts seem to go just for insane prosecutions.

 

[Diocletus]

Actually, when you think about it, paranoia about what the defence might do with their copy of the EDFs is a predictable corollary of a mindset in which everybody thinks everybody else is cheating, plotting and lying all the time. In fact, it would be stupid not to join in. Maybe Italy is simply passed the tipping point at which it becomes impossible to cling onto altruistic values like honesty, integrity etc without being a fool.

If the US and Russia could administer an arms reduction treaty at the height of the Cold War, I would think the Italians could figure out a way to allow the Prosecution and defense to exchange data. Trust but verify.

 

[Numbers]

A 3rd part. Same source, google translated. There's more parts; it all seems directed toward the prosecutor doing prelim investigation.

Maybe the point is that under Italian CPP, a defendant cannot ask for an examination of anything for exculpatory evidence, despite the wording of the Italian Constitution and the EConHR. A neutral Italian speaker should interpret this collection of CPPs.

Art. 403.
Usability in the trial of the evidence gathered by recording evidence.

1. In the trial the evidence gathered by the taking of evidence can only be used against the defendants whose defenders were involved in their recruitment.

1-bis. The tests referred to in paragraph 1 shall not be used against the accused reached only after recording evidence as evidence of guilt if the defender did not participate in their recruitment, unless these clues have emerged after the repetition of the act has become impossible.

 

[Kaosium]

A 3rd part. Same source, google translated. There's more parts; it all seems directed toward the prosecutor doing prelim investigation.

Maybe the point is that under Italian CPP, a defendant cannot ask for an examination of anything for exculpatory evidence, despite the wording of the Italian Constitution and the EConHR.

Art. 403.
Usability in the trial of the evidence gathered by recording evidence.

1. In the trial the evidence gathered by the taking of evidence can only be used against the defendants whose defenders were involved in their recruitment.

1-bis. The tests referred to in paragraph 1 shall not be used against the accused reached only after recording evidence as evidence of guilt if the defender did not participate in their recruitment, unless these clues have emerged after the repetition of the act has become impossible.

ETA: Why? Because MUSSOLINI wanted it that way. No more questions, OR ELSE.

Thank you for those links, I suspect that particular defense is questionable on the grounds that the edfs are not subject to change and ought to be out of the purview of that article. This is a desperation ploy on the part of the prosecution it appears, the ramifications of this are staggering if applied to all DNA forensic evidence.

 

[Numbers]

Thank you for those links, I suspect that particular defense is questionable on the grounds that the edfs are not subject to change and ought to be out of the purview of that article. This is a desperation ploy on the part of the prosecution it appears, the ramifications of this are staggering if applied to all DNA forensic evidence.

Note that I re-edited to eliminate the ETA on Mussolini as too true to be funny. The question really is, as I inserted in bold on my revised edited post, whether there are practical laws and regulations (the CPPs) that allow a defendant to request and OBTAIN examination of evidence. The particular CPPs (which are hard to understand in places due to the limitations of Google translate) seem entirely directed to the prosecution and prelim investigation. There may be other CPPs dealing with trials and defendant requests for examination of evidence. Hard for those who are not Italian lawyers to know.

If there are no such CPPs, and if in Italy the legal system is bound only by CPPs in a practical sense (civil law systems supposedly does not allow for any initiative), then there is a very serious gap that must be addressed by the ECtHR and the Italian Parliament.

 

[Desert Fox]

Note that I re-edited to eliminate the ETA on Mussolini as too true to be funny. The question really is, as I inserted in bold on my revised edited post, whether there are practical laws and regulations (the CPPs) that allow a defendant to request and OBTAIN examination of evidence. The particular CPPs (which are hard to understand in places due to the limitations of Google translate) seem entirely directed to the prosecution and prelim investigation. There may be other CPPs dealing with trials and defendant requests for examination of evidence. Hard for those who are not Italian lawyers to know.

If there are no such CPPs, and if in Italy the legal system is bound only by CPPs in a practical sense (civil law systems supposedly does not allow for any initiative), then there is a very serious gap that must be addressed by the ECtHR and the Italian Parliament.

If what you posted is correct, yet another argument which can be used against extradition.

Edit: Notice nobody commented that it has been exactly seven years since this whole tragedy started with Rudy Guede murdering Meredeth Ketcher. Even worse is that he is poise to get out of prison. I tend to be forgiving but several years is just too little.

 

[Diocletus]

I think you have to add one here. Apparently they didn't say "please" when they asked.

I also forgot the "they didn't ask for it enough times" argument. Not sure what the right number of times is, though--I think maybe one more time than however many times they asked for it.

 

[Ampulla of Vater]

I also forgot the "they didn't ask for it enough times" argument. Not sure what the right number of times is, though--I think maybe one more time than however many times they asked for it.

"What I do want is for you to stand there in that faggoty white uniform and with your Harvard mouth extend me some *********** courtesy. You gotta ask me nicely."

 

[Numbers]

EDFs and Prosecutor File

Thank you for those links, I suspect that particular defense is questionable on the grounds that the edfs are not subject to change and ought to be out of the purview of that article. This is a desperation ploy on the part of the prosecution it appears, the ramifications of this are staggering if applied to all DNA forensic evidence.

I would think that the EDFs are covered by this statement:

8. The minutes, things and documents acquired in the accident evidence shall be submitted to the public prosecutor. The defendants have the right to examine and take copies of them.

Perhaps the dodge here is that the prosecutor didn't put the EDFs in his/her file?

 

[Kaosium]

I would think that the EDFs are covered by this statement:

8. The minutes, things and documents acquired in the accident evidence shall be submitted to the public prosecutor. The defendants have the right to examine and take copies of them.

Perhaps the dodge here is that the prosecutor didn't put the EDFs in his/her file?

Yes, I think that's one of them. I recall Machiavelli saying something to the effect that data comes from the lab, not the prosecution.

 

[anglolawyer]

Not the prosecution

Yes, I think that's one of them. I recall Machiavelli saying something to the effect that data comes from the lab, not the prosecution.

Is this even the right name? Whenever I use it it feels wrong in the Italian context. No doubt LJ's theory about how Italy has not fully traversed from inquisitorial to adversarial is the right one here.

 

[Numbers]

Arbitrary proceedings mean application is admissible

From: Practical Guide on Admissibility Criteria,
Council of Europe, European Court of Human Rights (c) 2011; p 71

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

{Emphasis added}

(a) No appearance of arbitrariness or unfairness

363. In accordance with the principle of subsidiarity, it is in the first place for the domestic authorities to ensure observance of the fundamental rights enshrined in the Convention. As a general rule, therefore, the establishment of the facts of the case and the interpretation of the domestic law are a matter solely for the domestic courts and other authrities, whose findings
and conclusions in this regard are binding on the Court. However, the principle of the effectiveness of rights, inherent in the entire Convention system, means that the Court can and should satisfy itself that the decision-making process resulting in the act complained of by the applicant was fair and was not arbitrary (the process in question may be administrative or judicial, or both, depending on the case).

364. Consequently, the Court may declare manifestly ill-founded a complaint which was examined in substance by the competent national courts in the course of proceedings which fulfilled, a priori, the following conditions (in the absence of evidence to the contrary):

the proceedings were conducted before bodies empowered for that purpose by the provisions of domestic law;

the proceedings were conducted in accordance with the procedural requirements of domestic law; the interested party had the opportunity of adducing his or her arguments and evidence, which were duly heard by the authority in question;
the competent bodies examined and took into consideration all the factual and legal elements which, viewed objectively, were relevant to the fair resolution of the case;
the proceedings resulted in a decision for which sufficient reasons were given._________
In the above excerpt, I emphasized the areas of the proceedings in this case that IMO the ECtHR would find arbitrary and thus render AK's application admissible. These would also be areas that the ECtHR would examine due to their arbitrariness, contrary to views of our favorite guilter (Mach).

 

[LondonJohn]

Ah it's that time of year again where a certain group of individuals try once more to claim some sort of "ownership" of "poor Mez" (or, even more presumptuously, "M"....), with cloying appeals to bow heads in reverence and mourn her passing.

Now, let it be clear that I am not seeking to minimise the horrible death that befell Meredith Kercher, nor the obvious pain and suffering her family and close friends have gone through in the intervening years (suffering made considerably worse, in my opinion, by the incompetent and arrogant Italian judiciary and police, but that's perhaps a different matter). But let it equally be clear that for anyone who did not have a relationship with Kercher before her death, any claims to be deeply emotionally affected by her death are (in my view) either a) mawkish and bogus, or b) the product of a disturbed mental state.

Again, to be perfectly clear on my position: I feel it's a tragedy that she died, especially in such an horrific manner, and I feel deeply sorry for her family and real friends. And certainly the anniversary of her murder gives a small pause for thought. But anything much more than that - particularly when it appears to involve some sort of "claiming" of Kercher's memory - smacks to me of opportunism at best.

 

[Machiavelli]

From: Practical Guide on Admissibility Criteria,
Council of Europe, European Court of Human Rights (c) 2011; p 71

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

{Emphasis added}

(a) No appearance of arbitrariness or unfairness

363. In accordance with the principle of subsidiarity, it is in the first place for the domestic authorities to ensure observance of the fundamental rights enshrined in the Convention. As a general rule, therefore, the establishment of the facts of the case and the interpretation of the domestic law are a matter solely for the domestic courts and other authrities, whose findings
and conclusions in this regard are binding on the Court. However, the principle of the effectiveness of rights, inherent in the entire Convention system, means that the Court can and should satisfy itself that the decision-making process resulting in the act complained of by the applicant was fair and was not arbitrary (the process in question may be administrative or judicial, or both, depending on the case).

364. Consequently, the Court may declare manifestly ill-founded a complaint which was examined in substance by the competent national courts in the course of proceedings which fulfilled, a priori, the following conditions (in the absence of evidence to the contrary):

the proceedings were conducted before bodies empowered for that purpose by the provisions of domestic law;

the proceedings were conducted in accordance with the procedural requirements of domestic law; the interested party had the opportunity of adducing his or her arguments and evidence, which were duly heard by the authority in question;
the competent bodies examined and took into consideration all the factual and legal elements which, viewed objectively, were relevant to the fair resolution of the case;
the proceedings resulted in a decision for which sufficient reasons were given._________
In the above excerpt, I emphasized the areas of the proceedings in this case that IMO the ECtHR would find arbitrary and thus render AK's application admissible. These would also be areas that the ECtHR would examine due to their arbitrariness, contrary to views of our favorite guilter (Mach).

If our intent is to build a discussion that could make some sense on this point, as I said, the necessary basis we should have is that we could read the actual content of complaint.
As long as we don't have the text, all those themes are pure speculation. Basically all complaints related to trials refer to art. 6., therefore we don't know anything about the actual claims.

As for the procedural requirements, any chance of a claim at the ECHR it's clearly out of question; there was no breach of those.

As for the opportunity of adducing his or her arguments and evidence it is also out of question, since no obstacle prevented Knox's defence from adducing their defensive arguments in the calunnia case, and there is no claim of obstacles to this. (we actually even have Knox's own decision to refuse to answer on Nov. 8 2007, and then a second refusal to answer questions about the calunnia case on her part again, on Dec. 17 2007).

As for factual and legal arguments, those arguments that the judges weighted were those presented by the defence; the pro-Knox supporters will maybe keep their subjective opinion on this. I think such opinion about judge unfariness will not be shared by the ECHR, respect of law and factual fairness were respected.
I also think the same supporters will keep on maintaining their opinions about the adequate written explanations given by judges. These fields are largely influenced by the subjective judgement of supporters.

 

[LondonJohn]

And another thing.....

Let's stop pretending (by either lying or ignorance) that in 2007 there would possibly have been hordes of young people milling around in Perugia on the night of Thursday 1st November in Halloween costumes. There would in fact have been either none whatsoever, or (at most) a few isolated stragglers. Very different from Curatolo's claims.

Why can one be utterly certain on this point? Well firstly, Italy is a catholic country, with certain traditions linked to family that are still rigorously observed, even among the young. One such tradition is the commemoration of All Saints' Day and All Souls' Day on 1st November. Families meet up to have a meal and remember family members who have died. Young people living away from their parents often travel to their parents' house for this purpose - indeed, all the boys in the downstairs cottage had gone away. The evening of the 1st November is a somewhat solemn, quiet affair in large parts of Italy, including Perugia.

And this leads into the second point: Perugia was in semi-shutdown on the evening of Thursday 1st November 2007. Ever since the new (to Italy) tradition of Halloween has hit Italy, the clubs and bars throw huge parties on the evening/night of October 31st. This is exactly what happened in 2007. And one of the reasons they can throw these huge parties is that the following day, 1st November, is always a public holiday, so they know that people can stay out late on the 31st even if it falls on a weekday.

In 2007, Halloween - October 31st - fell on a Wednesday. And, as it customary, all the clubs and bars in and around Perugia threw large Halloween parties on that evening. These - and ONLY these - are the parties for which it has become customary to dress up. There are no parties on 1st November. And while some of the city centre bars and clubs were open on the evening of Thursday 1st November 2007, none was having a Halloween-themed event; those had all taken place on the previous evening/night.

Furthermore, since Halloween in 2007 fell on a Wednesday with the All Souls holiday on a Thursday, the big out-of-town clubs near Perugia opted (naturally) to throw their big Halloween parties on the Wednesday night and then to close on the Thursday night - even though Thursdays are usually a big night for those clubs. The reasoning is obvious: firstly, most people would be unlikely to want to party very hard two nights in a row at any time of the year, and secondly, Thursday 1st November 2007 would obviously be a quiet night, since most young people would have been involved in All Saints/All Souls commemorations.

This leads to the final point: there were no "party buses" taking punters to the out-of-town clubs on the evening/night of Thursday 1st November 2007, since these clubs were not open on that night. The buses were in full operation the previous evening/night - Wednesday 31st October 2007 - ferry people to the Halloween parties.

So when Curatolo claimed to have correlated the night of the murder with hordes of young people in costumes waiting for (and then boarding) the special buses to the out-of-town discos, it can be shown beyond all doubt that this cannot be consistent with Thursday 1st November 2007. Instead, what Curatolo is recalling actually took place on Wednesday 31st October 2007 - the night BEFORE the murder. And this at a stroke raises an enormous red flag of unreliability to Curatolo's testimony (to add to the numerous other red flags related to his testimony......).

 

[Machiavelli]

Actually, when you think about it, paranoia about what the defence might do with their copy of the EDFs is a predictable corollary of a mindset in which everybody thinks everybody else is cheating, plotting and lying all the time. In fact, it would be stupid not to join in. Maybe Italy is simply passed the tipping point at which it becomes impossible to cling onto altruistic values like honesty, integrity etc without being a fool.

It's just my own speculation, but what I think, my personal opinion about raw data files (note: I wrote 'raw data', not EDFs) in the incidente probatorio, is that those would be considered "sources" and not "documents". I mean that it is not an issue of altruistic values but of parity of arms in an adversarial scheme.
As for my understanding, the raw data in question are a type of vectorial image files, with an array of numeric data values attached. That means: if there are data sources, from which you may produce a document, for example an image file about a magnified detail, a picture, that a machine with diferent settings may render as a chart with a different form that was not looked at at the incidente probatorio, like say a magnified image with more stretched peaks or so, this means the defence party may be able to produe in court some 'evidence' documents which the prosecution and the other parties don't have, didn't have a chance to examine, or didn't agree would be examined. This would be obviously something against the spirit of the incidente probatorio.

I am not saying that it should be impossible to hand over raw data files. But if this happens, this should at best happen within the same incidente probatorio procedure, on explicit request and with all experts and investigating judge taking note of it. The principle is that the steps defining what is evidence and documents is something that the parties need to decide together, meaning within taking part to the same decision-making process (the incidente probatorio). The nature of evidence examination is somehow decided in that venue.

The incidente probatorio is basically like a court hearing where a witness is cross-examined, the resulting evidence is the documentation that the parties produced together at the presence of the investigating judge.
You may not bring witnesses home and question them on yowr own, then bring into court some result from your solitary questioning, and to this two years later only when you realize your trial is going bad.

It is not impossible, though, to re-examine parts of the evidence even on a later stage, if the judge deems there are reasons to do so. And it is not impossible, by the law, even to go back and request to access or obtain parts of information from the previous evidence examination process that had been previously discarded. However, this is not granted. There must be a request and a convincing reason. And there was not a clear enough request from the defence in this case, in my opinion. There is no such instance in the trial papers.

 

[Machiavelli]

And another thing.....

Let's stop pretending (by either lying or ignorance) that in 2007 there would possibly have been hordes of young people milling around in Perugia on the night of Thursday 1st November in Halloween costumes. There would in fact have been either none whatsoever, or (at most) a few isolated stragglers. Very different from Curatolo's claims.

Why can one be utterly certain on this point? Well firstly, Italy is a catholic country, with certain traditions linked to family that are still rigorously observed, even among the young. One such tradition is the commemoration of All Saints' Day and All Souls' Day on 1st November. Families meet up to have a meal and remember family members who have died. Young people living away from their parents often travel to their parents' house for this purpose - indeed, all the boys in the downstairs cottage had gone away. The evening of the 1st November is a somewhat solemn, quiet affair in large parts of Italy, including Perugia. (...)

The Fair of the Deads is a very lively city fest & market day in Perugia. It's a typical thing of Perugia. It's basically a market day in Perugia, since the middle age, with games costumes and competitions. There are Perugian cakes typical for that occasion such as the "stinchetti" and "fave dei morti". It's definitely a lively week in that city.

 

[Desert Fox]

And another thing.....

Let's stop pretending (by either lying or ignorance) that in 2007 there would possibly have been hordes of young people milling around in Perugia on the night of Thursday 1st November in Halloween costumes. There would in fact have been either none whatsoever, or (at most) a few isolated stragglers. Very different from Curatolo's claims.

Why can one be utterly certain on this point? Well firstly, Italy is a catholic country, with certain traditions linked to family that are still rigorously observed, even among the young. One such tradition is the commemoration of All Saints' Day and All Souls' Day on 1st November. Families meet up to have a meal and remember family members who have died. Young people living away from their parents often travel to their parents' house for this purpose - indeed, all the boys in the downstairs cottage had gone away. The evening of the 1st November is a somewhat solemn, quiet affair in large parts of Italy, including Perugia.

And this leads into the second point: Perugia was in semi-shutdown on the evening of Thursday 1st November 2007. Ever since the new (to Italy) tradition of Halloween has hit Italy, the clubs and bars throw huge parties on the evening/night of October 31st. This is exactly what happened in 2007. And one of the reasons they can throw these huge parties is that the following day, 1st November, is always a public holiday, so they know that people can stay out late on the 31st even if it falls on a weekday.

In 2007, Halloween - October 31st - fell on a Wednesday. And, as it customary, all the clubs and bars in and around Perugia threw large Halloween parties on that evening. These - and ONLY these - are the parties for which it has become customary to dress up. There are no parties on 1st November. And while some of the city centre bars and clubs were open on the evening of Thursday 1st November 2007, none was having a Halloween-themed event; those had all taken place on the previous evening/night.

Furthermore, since Halloween in 2007 fell on a Wednesday with the All Souls holiday on a Thursday, the big out-of-town clubs near Perugia opted (naturally) to throw their big Halloween parties on the Wednesday night and then to close on the Thursday night - even though Thursdays are usually a big night for those clubs. The reasoning is obvious: firstly, most people would be unlikely to want to party very hard two nights in a row at any time of the year, and secondly, Thursday 1st November 2007 would obviously be a quiet night, since most young people would have been involved in All Saints/All Souls commemorations.

This leads to the final point: there were no "party buses" taking punters to the out-of-town clubs on the evening/night of Thursday 1st November 2007, since these clubs were not open on that night. The buses were in full operation the previous evening/night - Wednesday 31st October 2007 - ferry people to the Halloween parties.

So when Curatolo claimed to have correlated the night of the murder with hordes of young people in costumes waiting for (and then boarding) the special buses to the out-of-town discos, it can be shown beyond all doubt that this cannot be consistent with Thursday 1st November 2007. Instead, what Curatolo is recalling actually took place on Wednesday 31st October 2007 - the night BEFORE the murder. And this at a stroke raises an enormous red flag of unreliability to Curatolo's testimony (to add to the numerous other red flags related to his testimony......).

Even if most of us have not put in as much detail as you just did, as soon as you hear "Day after Halloween" and "costumes" together, you kind of realize there is a problem. This is in addition to the fact that testimony months after anything is already unreliable and being on heroine makes it even worse.

 

[Machiavelli]

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.

Sorry, I should have mentioned that when I look at records-by-country at the ECHR I only consider the most recent 4-5 years, I assume it makes no sense to consider figures including a 50-year period.