Continuation Part 11: Amanda Knox/Raffaele Sollecito

[anglolawyer]

Look at this. Very interesting indeed!

"...the Court of Cassation, since 2005 (the so-called Cat Berro Decision), has adopted a new line of interpretation, under which no conviction can be executed, nor sentence served, if the European Court of Human Rights (ECtHR) had declared that the process violated, in at least one provision, article 6 of the ECHR.(16)

Finally, in 2007, the Italian Constitutional Court declared that the ECHR must be interpreted by Italian judges as a source of the Italian system that is superior to the law, even if inferior to the fundamental principles of the Italian Constitution. Therefore, when a text of a legal provision appears to conflict with one or more provisions of the ECHR, the judges are asked to make every possible effort to interpret and apply the Italian provision in coherence with the ECHR – as interpreted by the ECtHR. If it is not possible to solve the conflict through interpretation, the judges must submit the problem to the Constitutional Court, which may declare the Italian source to be constitutionally illegal."

http://www.legalaidreform.org/crimi...download/153_6ac3f292a1634cefcd0d407bacca0209

Facinating! We see where all this is going, I think.

Where?

 

[Bill Williams]

Look at this. Very interesting indeed!

"...the Court of Cassation, since 2005 (the so-called Cat Berro Decision), has adopted a new line of interpretation, under which no conviction can be executed, nor sentence served, if the European Court of Human Rights (ECtHR) had declared that the process violated, in at least one provision, article 6 of the ECHR.(16)

Finally, in 2007, the Italian Constitutional Court declared that the ECHR must be interpreted by Italian judges as a source of the Italian system that is superior to the law, even if inferior to the fundamental principles of the Italian Constitution. Therefore, when a text of a legal provision appears to conflict with one or more provisions of the ECHR, the judges are asked to make every possible effort to interpret and apply the Italian provision in coherence with the ECHR – as interpreted by the ECtHR. If it is not possible to solve the conflict through interpretation, the judges must submit the problem to the Constitutional Court, which may declare the Italian source to be constitutionally illegal."

http://www.legalaidreform.org/crimi...download/153_6ac3f292a1634cefcd0d407bacca0209

Facinating! We see where all this is going, I think.

I cannot remember who, but someone way, way back said this would end up in the Italian Constitutional Court, which is somewhat sideways to Cassazione.

I take it this is what you are saying, is that the Constitutional Court will eventually need a piece of this - presumably after a sign-off on Nencini's convictions by Cassazione in March 2015?

http://en.wikipedia.org/wiki/Constitutional_Court_of_Italy

IIRC the problem with this line of reasoning is that Consulta rules on the legitimacy of laws, or conflicts within them, not the legitimacy of decisions.

 

[Dan O.]

Could there have been a data match from the computer systems, that they then wanted to confirm manually?

While there have been advances in automated palm print comparisons, these have come after 2007. The prior art on which the existing systems were based used the same friction ridges as a fingerprint. The woven fabric of a pillow case cannot reproduce the fine structure of the friction ridges so the data to enter into a computer search just won't be available.

 

[Numbers]

Look at this. Very interesting indeed!

"...the Court of Cassation, since 2005 (the so-called Cat Berro Decision), has adopted a new line of interpretation, under which no conviction can be executed, nor sentence served, if the European Court of Human Rights (ECtHR) had declared that the process violated, in at least one provision, article 6 of the ECHR.(16)

Finally, in 2007, the Italian Constitutional Court declared that the ECHR must be interpreted by Italian judges as a source of the Italian system that is superior to the law, even if inferior to the fundamental principles of the Italian Constitution. Therefore, when a text of a legal provision appears to conflict with one or more provisions of the ECHR, the judges are asked to make every possible effort to interpret and apply the Italian provision in coherence with the ECHR – as interpreted by the ECtHR. If it is not possible to solve the conflict through interpretation, the judges must submit the problem to the Constitutional Court, which may declare the Italian source to be constitutionally illegal."

http://www.legalaidreform.org/crimi...download/153_6ac3f292a1634cefcd0d407bacca0209

Facinating! We see where all this is going, I think.

Yes, the courts and other domestic authorities in Italy, a signatory to the ECHR as a member State of the Council of Europe, is under a solemn obligation to make the Convention and ECHR case-law the "supreme law of the land" for human rights issues (except for domestic human rights provisions even more humane than those of the ECHR).

But how have the Italian courts and other domestic authorities behaved in reality? There were about 11,000 pending applications from Italy to the ECtHR as of 30 Nov. 2014. Only one State had a higher number of applications as of that date.

For Italy, de jure and de facto are distinct; in this case, the Italian police and courts have not even followed Italian law. For example, the police violated CCP 188 in their coercive interrogation of Amanda Knox Nov.5 and 6, 2007. Another example: the courts are to allow the defense to bring forth all evidence in its favor according to the Italian Constitution Article 111. But the defense was repeatedly denied the opportunity to obtain evidence, including but not limited to the purported semen stain on the pillow and the electronic data files for the DNA profiling.

 

[Bill Williams]

Machiavelli - the only time, apparently, that AK and RS ever turned off their phones was on the night of Nov 1, 2007.

Please explain why this is evidence of their guilt. Careful - it's a trick question.

 

[CoulsdonUK]

Look at this. Very interesting indeed!

"...the Court of Cassation, since 2005 (the so-called Cat Berro Decision), has adopted a new line of interpretation, under which no conviction can be executed, nor sentence served, if the European Court of Human Rights (ECtHR) had declared that the process violated, in at least one provision, article 6 of the ECHR.(16)

Finally, in 2007, the Italian Constitutional Court declared that the ECHR must be interpreted by Italian judges as a source of the Italian system that is superior to the law, even if inferior to the fundamental principles of the Italian Constitution. Therefore, when a text of a legal provision appears to conflict with one or more provisions of the ECHR, the judges are asked to make every possible effort to interpret and apply the Italian provision in coherence with the ECHR – as interpreted by the ECtHR. If it is not possible to solve the conflict through interpretation, the judges must submit the problem to the Constitutional Court, which may declare the Italian source to be constitutionally illegal."

http://www.legalaidreform.org/crimi...download/153_6ac3f292a1634cefcd0d407bacca0209

Facinating! We see where all this is going, I think.

I have been reading comments like this on the net since the first level trial; yep it’s all over bar the shouting.

 

[Numbers]

I cannot remember who, but someone way, way back said this would end up in the Italian Constitutional Court, which is somewhat sideways to Cassazione.

I take it this is what you are saying, is that the Constitutional Court will eventually need a piece of this - presumably after a sign-off on Nencini's convictions by Cassazione in March 2015?

http://en.wikipedia.org/wiki/Constitutional_Court_of_Italy

IIRC the problem with this line of reasoning is that Consulta rules on the legitimacy of laws, or conflicts within them, not the legitimacy of decisions.

If I understand the role of the Italian Constitutional Court, they could only become involved in this case if a lower court or the CSC found a conflict of law that needed to be resolved. Individuals, IIUC, don't have standing (can't get a hearing) in the Constitutional Court.

It is possible that the CSC (or a third second-level trial court) would see an issue for the Constitutional Court.

I'm taking the opportunity of this post to show what I believe are the probabilities of the judgments that the CSC will make in this case in March or later. These probabilities are carefully researched, in the sense that I have made sure that they add up to 100%. Otherwise, I have relied on near-total ignorance, WAGs aka wild guesses, confidence in the ability of people (especially bureaucrats) to not make decisions if they can avoid them, a misplaced sense of optimism, and the repetition of an earlier joke.

1. CSC will send the case to a third second-level trial: 37%
2. CSC will convict based on the Nencini motivation: 35%
3. CSC will acquit outright because they're reasonable: 28%

Note that possibilities 1) and 3) include the potential for a United Sections review.
ETA: Possibility 1) also puts off finalization and thus any ECHR application (theoretically).

 

[Desert Fox]

If I understand the role of the Italian Constitutional Court, they could only become involved in this case if a lower court or the CSC found a conflict of law that needed to be resolved. Individuals, IIUC, don't have standing (can't get a hearing) in the Constitutional Court.

It is possible that the CSC (or a third second-level trial court) would see an issue for the Constitutional Court.

I'm taking the opportunity of this post to show what I believe are the probabilities of the judgments that the CSC will make in this case in March or later. These probabilities are carefully researched, in the sense that I have made sure that they add up to 100%. Otherwise, I have relied on near-total ignorance, WAGs aka wild guesses, confidence in the ability of people (especially bureaucrats) to not make decisions if they can avoid them, a misplaced sense of optimism, and the repetition of an earlier joke.

1. CSC will send the case to a third second-level trial: 37%
2. CSC will convict based on the Nencini motivation: 35%
3. CSC will acquit outright because they're reasonable: 28%

Note that possibilities 1) and 3) include the potential for a United Sections review.

One of my thoughts is that maybe they realize the bugaboo this whole thing is and just want to make it go away. That is also kind of my hope.

 

[Magister]

Look at this. Very interesting indeed!

"...the Court of Cassation, since 2005 (the so-called Cat Berro Decision), has adopted a new line of interpretation, under which no conviction can be executed, nor sentence served, if the European Court of Human Rights (ECtHR) had declared that the process violated, in at least one provision, article 6 of the ECHR.(16)

Finally, in 2007, the Italian Constitutional Court declared that the ECHR must be interpreted by Italian judges as a source of the Italian system that is superior to the law, even if inferior to the fundamental principles of the Italian Constitution. Therefore, when a text of a legal provision appears to conflict with one or more provisions of the ECHR, the judges are asked to make every possible effort to interpret and apply the Italian provision in coherence with the ECHR – as interpreted by the ECtHR. If it is not possible to solve the conflict through interpretation, the judges must submit the problem to the Constitutional Court, which may declare the Italian source to be constitutionally illegal."

http://www.legalaidreform.org/crimi...download/153_6ac3f292a1634cefcd0d407bacca0209

Facinating! We see where all this is going, I think.

re the link above.....

Section 2.1.2 Arrest and questioning before the police, the prosecutor and the judges.

Art. 104 CCP is discussed , and also the problems relating to spontaneous statements.

 

[Kauffer]

Where?

Where's it all going?

Reform of the Italian legal system, in short, by consent from within if possible, but from without if necessary, whether the judiciary likes it or not.

Did you know that there is an extant instruction from the Constitutional Court to trial judges to interpret Italian CCP in a convention compliant manner as interpreted by the European Court, and that if they cannot, the Constitutional Court is prepared to strike down offending provisions? I didn't know that! That's huge.

Also, it's now clear that a solitary violation of Article 6 will result in the setting aside of conviction and sentence from the trial to which it refers, but actually, in this case, it would do much more than that.

 

[anglolawyer]

Where's it all going?

Reform of the Italian legal system, in short, by consent from within if possible, but from without if necessary, whether the judiciary likes it or not.

Did you know that there is an extant instruction from the Constitutional Court to trial judges to interpret Italian CCP in a convention compliant manner as interpreted by the European Court, and that if they cannot, the Constitutional Court is prepared to strike down offending provisions? I didn't know that! That's huge.
Also, it's now clear that a solitary violation of Article 6 will result in the setting aside of conviction and sentence from the trial to which it refers, but actually, in this case, it would do much more than that.

Judging from the spate of appeals from Italy to the ECHR is doesn't seem that huge.

 

[Kauffer]

Judging from the spate of appeals from Italy to the ECHR is doesn't seem that huge.

Well, the gross number of appeals isn't particularly important; Britain has a lot too. What's important on the ground is to what extent trial judges are in fact following the instructions they have been given (the way it seems to have been worded is that they were asked nicely this time). The judges in our case, it is argued, to a greater or lesser extent, did not. But the principle itself has been recognised within the judiciary - the ECHR stands above Italian statute law. And that means the consistent application of human rights case law, which is at odds with the prior interpretive freedom of judges, must follow.

This has not been long in the making. If you see elsewhere in the chapter, Italy rewrote the article pertaining to trials in absentia, codified the reasonable doubt principle, and now this - all within ten years. Additionally, as you will have seen in the response to the draft directive (access to a lawyer), the authors, cleverly go to great pains to demonstrate the compatibility of the Salduz judgement with civil law systems - they point out that there really are no objections to the principle of inadmissability of incriminating statements made without benefit of counsel.

 

[Diocletus]

Take a look at this latest communicated case to Italy:

It appears that the applicant previously went to the ECHR, won, and then the case went back to Italy, where Cassation tried to gin up the facts (at least that's my reading of the google translate), and a subsequent application to the ECHR ensued, and that application has now been accepted and transmitted to Italy.

Here are the final paragraphs:

30. Relying on Article 6 §§ 1 and 3), b), c) and d) of the Convention, the applicant complained that the domestic courts did not comply with the indications coming from the judgment Drassich c. Italy, No. 25575/04, December 11, 2007. In the national proceedings that followed, his defense rights were violated again, particularly the right to be promptly informed of the nature and causes of the charge against him and the right to an effective defense. In this regard, he claims to have once again been the victim of a requalification in peius facts from the Court of Cassation, without the opportunity to defend themselves before a trial court.

QUESTION TO THE PARTIES

The procedure is being held in the national courts after the judgment of the Court in Was Application No. 25575/04 comply with the requirements of Article 6 § 1 and 6 § 3 a) and b) of the Convention I need regular.

If anyone speaks French, let us know what you think.

 

[Machiavelli]

1. The difference between burglary and unauthorized entry is often a narrow one. The concern in the US is that a person committing a burglary or an unauthorized entry has some probability of harming by sexual assault or other violence the residents of the place entered. Perhaps Italy does not see this danger, which came to a criminal reality when Rudy Guede broke into the flat occupied by Meredith Kercher and her flat-mates.

Burglary and unauthorized entry are AFAIK serious crimes, felonies, in the US. That they, on the basis of your statement, are not such in Italy is shocking.

Unauthorized entry is a very petty and insignificant offence. There is a slight increase in seriousness of fine if the building is public or military. It has not even a remote relation with burglary (which by the way, is not a charge itself but a kind of theft, or may resemble instead "violation of home" which is a category of damage of property or an offence to the person).
This in fact sets a dramatic difference between Italy and the US systems. Italy does not protect physical boundaries of private living in any way remotely resembling the US legislation.
Let me make an example: if you own a gun, someone sneaks in your house and steals the gun, than kills someone, you would be held responsible for not keeping it locked and not reachable.

2. Apparently, in Italy stealing is not really a crime, or is a minor misdemeanor, again, according to your statement. I think that Italian law must differ from that in many other places if I have understood your statement correctly

Stealing is a crime, but only prosecutable on formal complaint by a party, like most offences in Italy. It is not a particularly serious crime if compared to most others, even compared to trading stolen goods. However stealing becomes particularly petty if the value of the items is negligible. Stealing means actual attempt to carry away the object from the owner, not just taking possession of it.
We don't have the elements of theft in the Milan school incident.

3. Again, based on your statement, possession of stolen goods is a crime, but not too serious of a crime, in Italy. Depending on circumstances, in the US, possession of stolen goods may be taken to indicate that one has committed burglary, an extremely serious felony. Possession of stolen goods (generally depending on the total value) is likewise a serious crime.

Possession of stolen goods is a crime more serious than theft. It becomes serious if the amount of stolen goods has a very high value. Yet nobody goes in prison for that if the amount of stolen good is not industrial. Guede was convicted for tho offence.

4. In the US, police actually (ideally) investigate statements or accusations that they receive. While intentional false statements or accusations may be illegal in the US, my impression from your statements and some other information is that this crime is a major focus of police effort in Italy, and that people there are obsessed with either criminally defaming others or being defamed.

Calunnia can be regarded as a very serious crime instead. It can have many degrees, not always it is extremely serious, depends on the type of calunnia. It can be regarded as a crime morally close to killing. This is not only in law, but also in Italian culture. There is something abhorrent in accusing an innocent. Italian culture probably also places a lot of weigh on words. My grandmother used to tell me "words are stones", word can kill, be careful how you use them. This may be also very different from the US national rhetoric about idealization of free speech.

 

[carbonjam72]

The story about the Perugian police calling the Milan police regarding Guede and they then released him and even put him on a train back to Perugia is crap. I've never seen any evidence of that at all. I don't even know where it originates.

Another one that pops up occasionally is he even got to keep the stolen computer and phone.

Wish I had better quotes for you, but I'm pretty sure I saw this account in both Dempsey and Burleigh's books. Also, Steve Moore in his chapter in the "Guede, the Forgotten killer".

In one of these accounts that I've seen, they quote a policeman by name from Milan who describes the phone call from Perugia, obtaining Guede's release, and saying something like 'these things happen'.

Maybe someone else has the name of the cop handy, and where it came from.

I don't se it as necessary this incident would appear in trial, as towards what end would it be entered? That the Italian police freed Rudy Guede before he killed Meredith?

But I don't know if its in the trial record, or Italian media.

It's hard to imagine Dempsey, Burleigh and Moore, perhaps others would all get such an important incident wrong - if it never happened. Much less that a Milan police who received the call would be identified by name.

I'll try to search when I get a cahcen if you doubt this incident, but hoping someone else can help sooner.

 

[carbonjam72]

While there have been advances in automated palm print comparisons, these have come after 2007. The prior art on which the existing systems were based used the same friction ridges as a fingerprint. The woven fabric of a pillow case cannot reproduce the fine structure of the friction ridges so the data to enter into a computer search just won't be available.

Not sure I'm following your technical argument, about the thread count preventing an analysis. Doesn't mean it's wrong, just saying I don't follow it.

The fingerprint (or palm print) was in blood I thought?

At any rate, the palm print being identified by the immigration authorities is the story I believe Dempsey and Burleigh reported in their books.

But suppose they're wrong and you're correct, and that is not how Rudy was identified. Then how was Rudy identified in your reckoning?

 

[carbonjam72]

Unauthorized entry is a very petty and insignificant offence. There is a slight increase in seriousness of fine if the building is public or military. It has not even a remote relation with burglary (which by the way, is not a charge itself but a kind of theft, or may resemble instead "violation of home" which is a category of damage of property or an offence to the person).
This in fact sets a dramatic difference between Italy and the US systems. Italy does not protect physical boundaries of private living in any way remotely resembling the US legislation.
Let me make an example: if you own a gun, someone sneaks in your house and steals the gun, than kills someone, you would be held responsible for not keeping it locked and not reachable.

2. Apparently, in Italy stealing is not really a crime, or is a minor misdemeanor, again, according to your statement. I think that Italian law must differ from that in many other places if I have understood your statement correctly

Stealing is a crime, but only prosecutable on formal complaint by a party, like most offences in Italy. It is not a particularly serious crime if compared to most others, even compared to trading stolen goods. However stealing becomes particularly petty if the value of the items is negligible. Stealing means actual attempt to carry away the object from the owner, not just taking possession of it.
We don't have the elements of theft in the Milan school incident.



Possession of stolen goods is a crime more serious than theft. It becomes serious if the amount of stolen goods has a very high value. Yet nobody goes in prison for that if the amount of stolen good is not industrial. Guede was convicted for tho offence.



Calunnia can be regarded as a very serious crime instead. It can have many degrees, not always it is extremely serious, depends on the type of calunnia. It can be regarded as a crime morally close to killing. This is not only in law, but also in Italian culture. There is something abhorrent in accusing an innocent. Italian culture probably also places a lot of weigh on words. My grandmother used to tell me "words are stones", word can kill, be careful how you use them. This may be also very different from the US national rhetoric about idealization of free speech.

Does anyone else find this to be an amazing statement?

Houston, we have a problem.

 

[Numbers]

Gross number of applications

Well, the gross number of appeals isn't particularly important; Britain has a lot too. What's important on the ground is to what extent trial judges are in fact following the instructions they have been given (the way it seems to have been worded is that they were asked nicely this time). The judges in our case, it is argued, to a greater or lesser extent, did not. But the principle itself has been recognised within the judiciary - the ECHR stands above Italian statute law. And that means the consistent application of human rights case law, which is at odds with the prior interpretive freedom of judges, must follow.

This has not been long in the making. If you see elsewhere in the chapter, Italy rewrote the article pertaining to trials in absentia, codified the reasonable doubt principle, and now this - all within ten years. Additionally, as you will have seen in the response to the draft directive (access to a lawyer), the authors, cleverly go to great pains to demonstrate the compatibility of the Salduz judgement with civil law systems - they point out that there really are no objections to the principle of inadmissability of incriminating statements made without benefit of counsel.

{Highlighting added to quote.}

Kauffer,

Here are figures for the gross number of applications to the ECtHR for a few of the major European countries as of 31 Dec 2013:

France.......645
Germany....502
Italy......14,379
UK..........2,519

The sizes of the populations of France, Germany, Italy, and the UK are about 66, 81, 62, and 64 million, respectively.

So people in the UK either complain more than those in France and Germany, or the UK needs to shape up a bit (and we are very far from perfect in the US) or some of both. But Italy does have substantially more applications pending than many other Council of Europe countries.

Sources:
http://www.echr.coe.int/Pages/home.aspx?p=reports&c=
Analysis of Statistics 2013

https://www.cia.gov/library/publications/the-world-factbook/index.html

 

[Desert Fox]

While there have been advances in automated palm print comparisons, these have come after 2007. The prior art on which the existing systems were based used the same friction ridges as a fingerprint. The woven fabric of a pillow case cannot reproduce the fine structure of the friction ridges so the data to enter into a computer search just won't be available.

Not sure I'm following your technical argument, about the thread count preventing an analysis. Doesn't mean it's wrong, just saying I don't follow it.

The fingerprint (or palm print) was in blood I thought?

At any rate, the palm print being identified by the immigration authorities is the story I believe Dempsey and Burleigh reported in their books.

But suppose they're wrong and you're correct, and that is not how Rudy was identified. Then how was Rudy identified in your reckoning?

My only problem is that the Italian forensics people cannot tell shoe prints apart, do we trust them on palm prints?

 

[carbonjam72]

My only problem is that the Italian forensics people cannot tell shoe prints apart, do we trust them on palm prints?

Ok, fine. Not exactly best in show. But Rudy was identified at some point, by some means. If not by the palm print at the immigration office, then how was Rudy identified as a suspect in the case?

Was Rudy identified before or after his friend approached the police to say he thought Rudy might be involved, after which they did a skype? Was Rudy's name published before his friend came forward, or did his friend come forward first?