Continuation Part 11: Amanda Knox/Raffaele Sollecito

[Numbers]

The latter statement is simply false under the law.

But besides this, I repeat the concept that this is also basically irrelevant. Fairness of trial is not determined by police procedures.

Mach,
Here is some more information, which I am confident that you, as a person knowledgeable in ECHR law, will find familiar.

Brusco v. France - 1466/07

Judgment 14.10.2010 [Section V]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Criminal conviction based on statement made by defendant in police custody after swearing oath normally reserved for witnesses: violation

Article 6-3

Rights of defence

Failure to inform person in police custody before questioning of right not to incriminate himself and to remain silent: violation

Facts – After being attacked by two hooded individuals in 1998, a man lodged a complaint against the applicant, and one of the presumed aggressors also testified against him. The applicant was arrested and taken into police custody. Before the police questioned him, they made him take the oath witnesses were required to take. He confessed to having hired two men to “scare” the victim, but denied having asked them to use physical violence. He was placed under investigation and remanded in custody. In 2002 he was sentenced to imprisonment, and that judgment was subsequently upheld on appeal. The Court of Cassation dismissed his further appeals.

Law – Article 6 §§ 1 and 3: The applicant had been in police custody when he was made to swear an oath. At the time it was possible to place an individual in police custody even without substantial, consistent evidence or reasonable suspicion that he or she had committed an offence. In this case, however, the victim had lodged a complaint against the applicant and one of the presumed aggressors had identified him as the mastermind behind the operation. So the authorities had had reason to suspect that he had been involved in the offence, and the argument that he had been questioned as a mere witness was unconvincing. Furthermore, the applicant’s arrest and placement in police custody could have had, and indeed did have, serious repercussions on his situation, as he had subsequently been placed under investigation and remanded in custody. So, at the time when the applicant had been required to take an oath while in police custody, criminal charges had already been brought against him and he should accordingly have had the right to remain silent and not to incriminate himself. The statements he had made under oath had been used against him by the courts to establish the facts and to convict him. The obligation to take an oath before giving evidence had amounted to a form of pressure on him, particularly in view of the threat of criminal proceedings were he to be found to have committed perjury. The Court noted that the law had changed in 2004 and that the obligation to swear an oath and answer questions was no longer applicable to people placed in police custody under a warrant issued by an investigating judge.

Furthermore, the applicant does not appear to have been informed at the start of the interview that he had the right to remain silent, not to answer any questions or to answer only those questions he wished to answer. And as he had been allowed the assistance of a lawyer only after twenty hours in police custody, his lawyer had been unable to inform him of his rights or to assist him when he was questioned, as required under Article 6. The result had been an infringement of his right to remain silent and not to incriminate himself.

Conclusion: violation (unanimously).

{emphasis added}

 

[Machiavelli]

I have already posted the ECHR's rebuttal of your contention. Article 6 rights kick in before trial and specifically apply to the failure to provide counsel.

Itally has been caught out doing this sort of thing on so many occasions. The ECHR is clear: you cannot rely on incriminating statements made without benefit of counsel.

There are straw men and mixing up of things in the above statements.
Rely on incriminating statements has nothing to do with the issue of Knox's ECHR submission, and not even with the Kercher murder. The issue is calunnia, and that is the crime for which Knox is convicted. A malicious type of obstruction of justice.
This independent from any status, suspect or informant whatever.

Knox was certainly not a suspect for the charge of calunnia, and thus any procedural objection is cut off.

Aricle 6 is valid from the investigation, this is not a rebuttal. Even if art 6 states that investigation phase is part of the process and has to do with human rights, it does not state that fairness of a trial is determined by the police procedure. On the contrary, art. 6 acknowledges that fairness of proceedings is a concept based on the whole unfolding of the proceedings, it cannot be established in radice based on the property of a single phase or event. There is no rule by which a putative (not proven here) error in police procedure would cause a trial to be unfair.

 

[Machiavelli]

I know nothing of this case but if what you report is true and she is being interviewed by the police, then it is illegal - without a lawyer.

It is not illegal. It may be inadmissible at a trial, which is not exacly the same thing.

 

[Machiavelli]

LJ quotes most accurately in his post near the top of this page.

You have lost your deniability.

I have lost nothing. Whenever I say "source" in this context I meas sources in the Italian language.
You may know that I don't consider Nadeau an accurate source.

 

[Kaosium]

I have lost nothing. Whenever I say "source" in this context I meas sources in the Italian language.
You may know that I don't consider Nadeau an accurate source.

Barbie Nadeau is not the only source for that quote.

ETA:

There's also differing translations available, one I recall off the top of my head referred to her as 'crumbling' as opposed to 'buckling.' Therefore it was originally in Italian and translations differed, thus it wasn't the case that Nadeau shared a bogus quote with her British colpevolesti comrades.

 

[Kaosium]

The latter statement is simply false under the law.

But besides this, I repeat the concept that this is also basically irrelevant. Fairness of trial is not determined by police procedures.

I suspect you are about to find out just why Italy needs a wholesale department in Strasbourg. What you think Italian authorities can get away with doesn't square with what the CoE thinks on the very same subjects.

 

[Kauffer]

There are straw men and mixing up of things in the above statements.
Rely on incriminating statements has nothing to do with the issue of Knox's ECHR submission, and not even with the Kercher murder. The issue is calunnia, and that is the crime for which Knox is convicted. A malicious type of obstruction of justice.
This independent from any status, suspect or informant whatever.

Knox was certainly not a suspect for the charge of calunnia, and thus any procedural objection is cut off.

Aricle 6 is valid from the investigation, this is not a rebuttal. Even if art 6 states that investigation phase is part of the process and has to do with human rights, it does not state that fairness of a trial is determined by the police procedure. On the contrary, art. 6 acknowledges that fairness of proceedings is a concept based on the whole unfolding of the proceedings, it cannot be established in radice based on the property of a single phase or event. There is no rule by which a putative (not proven here) error in police procedure would cause a trial to be unfair.

No! The "issue" is not calunia. The issue is whether in the course of the calunia trial within a trial and it's preparation, Ms Knox's convention rights were breached.

You do not know, because it has not been made public, any details with regard to Ms Knox's submission so you are not in a position to challenge it. Nevertheless, the circumstances which gave rise to the calunia charge, ie the interrogation of the 5th/6th November, are certainly within the scope of her application.

The court states (once again): "The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction."

In other words - everything is out; the fairness of the trial has been rebutted before any testimony is heard. So yes, in radice, based on the denial of counsel.

As for "police procedure", if by that you mean the routine of calling suspects "witnesses" or "persons informed of the facts" in order to deny them lawyers, then yes, this is covered by Article 6.

 

[Kauffer]

I have lost nothing. Whenever I say "source" in this context I meas sources in the Italian language.
You may know that I don't consider Nadeau an accurate source.

So Nadeau lied in her reporting and translation of de Felice's comments? She's an Italian speaker yes?

 

[Kauffer]

It is not illegal. It may be inadmissible at a trial, which is not exacly the same thing.

Hahaha

 

[Machiavelli]

No! The "issue" is not calunia. The issue is whether in the course of the calunia trial within a trial and it's preparation, Ms Knox's convention rights were breached.

You do not know, because it has not been made public, any details with regard to Ms Knox's submission so you are not in a position to challenge it. Nevertheless, the circumstances which gave rise to the calunia charge, ie the interrogation of the 5th/6th November, are certainly within the scope of her application.

Anyone is in the position to say that the case of using incriminating statements that were made while being a suspect without a lawyer, it's a complaint that cannot be raised with the ECHR against Knox's calunnia conviction, because before her interrogation she was not suspected of calunnia (this crime it had not been committed yet).
It's rather obvious.

The court states (once again): "The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction."

In other words - everything is out; the fairness of the trial has been rebutted before any testimony is heard. So yes, in radice, based on the denial of counsel.

Well first, this entails a potentially false reasoning: the ECHR principle does not mean that a police inaccuracy would automatically invalidate a trial. It all depends in fact on how the the courts use the defendant's statements.

But above all this can't have anything to do with Knox's submission to the ECHR, because her complaint can be about a final conviction for calunnia and nothing else.
The calunnia is a crime that was committed subsequently to all the police activities we talk about, it would have been impossible for them to "suspect" her of that crime either formally or informally.
This in fact cuts off the case example from the possible topics of the ECHR calunnia submission: it has nothing to do with it. We are not talking about the use of incriminating statements. Here we have a series of statements, from Knox, a repeated behaviour which is a crime itself, so we have a new criminal event, it's something of a totally different nature.

As for "police procedure", if by that you mean the routine of calling suspects "witnesses" or "persons informed of the facts" in order to deny them lawyers, then yes, this is covered by Article 6.

But it's not an issue per se. The matter of interest for the ECHR is about how the courts may use the statements from the persons in this status, not the fact that the police calls them.

 

[Numbers]

It is not illegal. It may be inadmissible at a trial, which is not exacly the same thing.

In terms of the ECHR, as you undoubtedly are aware, it is a Violation of Article 6.3c and thus Article 6.1 of the Convention for ITALY. It is ITALY which will be held as the violator by the European Court of Human Rights.

The legal accountability of the police in this matter is the responsibility of Italy and Italian law.

As has been discussed in posts upstream, if the ECtHR judges that there has been a failure of the Italian authorities to effectively investigate inhuman or degrading treatment that was part of an effort to coerce someone (Amanda Knox, for example) to make an incriminating statement, that is a violation of Article 3 of the ECHR by ITALY.

The European Court of Human Rights judges only the countries of the Council of Europe with regard to the ECHR. The countries must hold their agents, such as the police, accountable.

 

[Machiavelli]

So Nadeau lied in her reporting and translation of de Felice's comments? She's an Italian speaker yes?

It's ridiculous to use the word "lie". I don't believe she "lies".
I've already said I found she is just not so accurate, this goes in general about information about the Kercher case, and thus I don't consider her an accurate source. The only accurate sources actually are direct sources.
That should be sufficient, and I think your talking again about Nadeau is a change of topic: the topic is that you don't have direct sources. Italian language quotes of what De Felice said.
Again: I want to be clear so I repeat it: I am saying that you can't quote De Felice. I am not saying that Nadeau reported badly neither that she reported falsely: but rather than what she reports is of no interest (moreover even if she were correct she would be incomplete) and - just focus just on this - that you can't find a quote yourself.

My observation was just a side-topic.

De Felice comments, in fact, were absolutely non-suspicious as for what concerns Patrick Lumumba, while they do reveal that the police thought that Knox was lying since the very beginning. But this is not something that implies any police wrongdoing, or any unfairness Knox's calunnia conviction.

 

[Machiavelli]

In terms of the ECHR, as you undoubtedly are aware, it is a Violation of Article 6.3c and thus Article 6.1 of the Convention for ITALY. It is ITALY which will be held as the violator by the European Court of Human Rights.

So "will be held"..., well I would cool down if I were you. You have high expectations.

Your comment anyway has little to do with the point. The point is that it is the proceedings as a whole - investigation included - what determines the fairness of a trial.
It is not the investigation alone that determines the fairness of the proceedings as a whole.

As for the difference between wrongdoing and inadmissibility in a trial, this is actually of capital difference. Admissibility is a decision ex post, while the following of a procedure is something the effect of which can't be known in real time, thus you often can't know for sure whether the person will actually become suspected of what. You can't say in advance that the police (and prosecutors) were wrong questioning the lady as a witness, as long as maybe she could still offer exculpatory and explanatory information.

 

[LondonJohn]

Actually, nobody among the innoocentisti is able to sort out the ludicrous contradictions of their lone wolf scenario (take just the failure to explain latest simple points such as how did Guede manage to step on pillow, or deal with evidence contrary to post mortem sexual abuse theory). Let alone prove the maybe 15-20 unsupported postulates they require to make their conspiracy theory work (all of them have a burden of proof on the claimant, besides being foolish, like for examole LJ's suggestion that the "police" placed the pillow in that position under Meredith's body). We won't go so far as how they would deal with the autopsy report, or with the alterative substance and dynamic for the luminol prints, or with the measurements of the bathmat print, or with the repeated calunnia by Knox... etc..)

Ah, nothing like a good old bit of misrepresentation! The refuge of the dissembler.....

What I actually wrote regarding this issue was that it is eminently possible that the police (or other first responders) may have moved Kercher's body or the pillow, such that the relative position of the body and the pillow as seen in certain police photographs may well not have been the position in which Guede left the body/pillow.

To state that I had suggested that the police had "placed" the pillow in that position is a gross distortion of what I actually wrote.

(And, for the record, I also wrote that it was perhaps more likely that Guede himself shifted the relative position of Kercher's body and the pillow subsequent to him having stepped on the left side of the pillow - possibly when he was pulling the duvet more from under the body in order to free up enough of the duvet to cover the body fully.)

 

[Numbers]

Anyone is in the position to say that the case of using incriminating statements that were made while being a suspect without a lawyer, it's a complaint that cannot be raised with the ECHR against Knox's calunnia conviction, because before her interrogation she was not suspected of calunnia (this crime it had not been committed yet).
It's rather obvious.



Well first, this entails a potentially false reasoning: the ECHR principle does not mean that a police inaccuracy would automatically invalidate a trial. It all depends in fact on how the the courts use the defendant's statements.

But above all this can't have anything to do with Knox's submission to the ECHR, because her complaint can be about a final conviction for calunnia and nothing else.
The calunnia is a crime that was committed subsequently to all the police activities we talk about, it would have been impossible for them to "suspect" her of that crime either formally or informally.
This in fact cuts off the case example from the possible topics of the ECHR calunnia submission: it has nothing to do with it. We are not talking about the use of incriminating statements. Here we have a series of statements, from Knox, a repeated behaviour which is a crime itself, so we have a new criminal event, it's something of a totally different nature.



But it's not an issue per se. The matter of interest for the ECHR is about how the courts may use the statements from the persons in this status, not the fact that the police calls them.

Mach,
With you vast knowledge of law you are raising an interesting issue here.

However, the point is not what one is suspected of by the police when they coerce a false statement. Rather, it is that there is an interrogation to derive an incriminating statement - of any kind, and one is produced by the individual under interrogation - even if it is not one of the kind originally desired by the police. And during the interrogation no lawyer is present. Then the statement made by the person who was interrogated is used at trial, and a conviction results. This process by the police and domestic court is a violation of Convention Article 6.3c in conjunction with Article 6.1.

Mach, I thank you for raising this issue so that the true information may be brought out. A small search of HUDOC or the Guide on Article 6 (criminal limb) will provide confirming information to anyone who wishes it. The first case is Salduz v Turkey, but there have been many examples since that one.

 

[Diocletus]

So "will be held"..., well I would cool down if I were you. You have high expectations.

Your comment anyway has little to do with the point. The point is that it is the proceedings as a whole - investigation included - what determines the fairness of a trial.
It is not the investigation alone that determines the fairness of the proceedings as a whole.

As for the difference between wrongdoing and inadmissibility in a trial, this is actually of capital difference. Admissibility is a decision ex post, while the following of a procedure is something the effect of which can't be known in real time, thus you often can't know for sure whether the person will actually become suspected of what. You can't say in advance that the police (and prosecutors) were wrong questioning the lady as a witness, as long as maybe she could still offer exculpatory and explanatory information.

Right, and if they interrogated her in violation of her rights, and then used the ensuing statement to convict her, then the entire Calunnia proceeding is unfair. This is obvious.

 

[Machiavelli]

I suspect you are about to find out just why Italy needs a wholesale department in Strasbourg. What you think Italian authorities can get away with doesn't square with what the CoE thinks on the very same subjects.

This comment is not serious. You may know by now that only a very small number of violations is found among the thousands of applications against Italy.

 

[LondonJohn]

Barbie Nadeau is not the only source for that quote.

ETA:

There's also differing translations available, one I recall off the top of my head referred to her as 'crumbling' as opposed to 'buckling.' Therefore it was originally in Italian and translations differed, thus it wasn't the case that Nadeau shared a bogus quote with her British colpevolesti comrades.

Exactly. The English translation of the quote is repeated (with those minor translation variables that you note) in several reputable media reports.

For a start, it's virtually inconceivable that Nadeau or any other reporter - regardless of what one may think of their reporting skills or bias - would make up (or even embellish) direct and attributed quotes from a senior public official. Secondly, it's virtually inconceivable that Newsweek and all the other reputable publications that ran with the quote would not have satisfied themselves that the quote was accurate and reliable.

It's abundantly clear that de Felice was rather enjoying the Perugia police being the centre of attention, and that he was basking in the self-adulatory glow of "solving the crime" in the presence of the world's media. It's therefore totally clear to me that he said these words - probably in the presence of a throng of English-language-media reporters, and possibly after the press conference formalities had finished. He simply couldn't help himself from embellishing the story to show just how "ahead of the game" his magnificent police department had been: "Ah well, my men (and, ahem, women) were so good that they had it all figured out already, and it was only a question of waiting for Knox and Sollecito to confess".

And, as I said before, I find it very hard to believe that de Felice was flat-out lying - or even falsely embellishing - when he spoke these words. Rather, he knew with certainty that the police had "figured out" the crime before they brought Sollecito, then Knox, in for interrogation that night, and that the entire purpose of the interrogations was to get first Sollecito, then Knox, to "buckle" and "admit the truth".

 

[Kaosium]

This comment is not serious. You may know by now that only a very small number of violations is found among the thousands of applications against Italy.

Yet that 'very small number' is still the highest in their history and Italy is still the most common violator amongst Western European nations.

 

[Diocletus]

Anyone is in the position to say that the case of using incriminating statements that were made while being a suspect without a lawyer, it's a complaint that cannot be raised with the ECHR against Knox's calunnia conviction, because before her interrogation she was not suspected of calunnia (this crime it had not been committed yet).
It's rather obvious.



Well first, this entails a potentially false reasoning: the ECHR principle does not mean that a police inaccuracy would automatically invalidate a trial. It all depends in fact on how the the courts use the defendant's statements.

But above all this can't have anything to do with Knox's submission to the ECHR, because her complaint can be about a final conviction for calunnia and nothing else.
The calunnia is a crime that was committed subsequently to all the police activities we talk about, it would have been impossible for them to "suspect" her of that crime either formally or informally.
This in fact cuts off the case example from the possible topics of the ECHR calunnia submission: it has nothing to do with it. We are not talking about the use of incriminating statements. Here we have a series of statements, from Knox, a repeated behaviour which is a crime itself, so we have a new criminal event, it's something of a totally different nature.



But it's not an issue per se. The matter of interest for the ECHR is about how the courts may use the statements from the persons in this status, not the fact that the police calls them.

This is garbage. There's not a single case that says that the police can interrogate a suspect sans counsel and then use the ensuing statements as the basis for a conviction. In fact some countries have been censured for the practice of arresting suspects for minor crimes and then using illegally-extracted confessions to prosecute more serious crimes.