Continuation Part 11: Amanda Knox/Raffaele Sollecito

[Numbers]

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.

A definition of burglary from Wikipedia:
Burglary (also called breaking and entering[1] and sometimes housebreaking)[2] is a crime, the essence of which is illegal entry into a building for the purposes of committing an offence. Usually that offence will be theft, but most jurisdictions specify others which fall within the ambit of burglary. To engage in the act of burglary is to burgle (in British English) or to burglarize (in American English).

The point is that there are burglars who merely aim to steal. But there are others who enter a residence or other building with the intent to harm the people inside (this crime is sometimes called "home invasion"). An American view, probably borrowed from the English, is expressed in the maxim "A man's home is his castle." In the US, the police need a court-issued warrant to enter a house, unless the safety of a person clearly requires immediate intervention. And generally, no person intent on committing a crime against property or persons inside a house may lawfully enter that house by breaking-in, unauthorized entry, or deception.

ETA: Thus, Rudy Guede's crimes in the upstairs flat of the cottage could be described (in US terms) as including burglary or home invasion, theft, murder, and rape (or sexual assault).

 

[Desert Fox]

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?

I am fairly sure he alone is guilty of the rape and murder of Meredeth Ketcher but we are talking about police where I would prefer the Keystone Cops

 

[Kauffer]

{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

Yes I really didn't express myself well in my opening sentence. The point I wanted to stress was that the convention now has a very strong foothold in Italian constitutional law. Even though Italy lags quite some way behind it's European neighbours, changes have occurred and will continue to do so. I don't wish to minimise the size of the task however. It would seem that a great many applications continue to be received because the courts, all the way up to cassation are not following constitutional guidelines.

 

[Machiavelli]

(...)

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.

The s.c. Salduz principle is enshrined in the Italian procedure code already. The principle of non usability of incriminating statements released to investigators is even more protective in Italian law than in ECHR case law, and has been so for much longer. What you fail to realize, is that the Salduz principle has nothing to do with the case.

 

[Machiavelli]

A definition of burglary from Wikipedia:
Burglary (also called breaking and entering[1] and sometimes housebreaking)[2] is a crime, the essence of which is illegal entry into a building for the purposes of committing an offence. Usually that offence will be theft, but most jurisdictions specify others which fall within the ambit of burglary. To engage in the act of burglary is to burgle (in British English) or to burglarize (in American English).

The point is that there are burglars who merely aim to steal. But there are others who enter a residence or other building with the intent to harm the people inside (this crime is sometimes called "home invasion"). An American view, probably borrowed from the English, is expressed in the maxim "A man's home is his castle." In the US, the police need a court-issued warrant to enter a house, unless the safety of a person clearly requires immediate intervention. And generally, no person intent on committing a crime against property or persons inside a house may lawfully enter that house by breaking-in, unauthorized entry, or deception.

ETA: Thus, Rudy Guede's crimes in the upstairs flat of the cottage could be described (in US terms) as including burglary or home invasion, theft, murder, and rape (or sexual assault).

Rudy Guede was in Milan, not in the US.
I guess in some neighborhoods of the US he would be dead.

 

[Machiavelli]

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

Rinaldi didn't mistake a shoeprint for another.

 

[Diocletus]

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.

Really. My grandmother used to say "sticks and stones may break my bones, but names shall never hurt me." My grandmother was clearly tougher than yours.

Anyway, accusing innocent people is bad here, too. Unless the cops are abusing the person at the time, and them we generally understand that it's the police who have broken the law.

 

[Kauffer]

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:



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

I don't well, but found a reference to the case so we can understand what it's about. It seems the Supreme Court pulled a fast one on his appeal and changed his indictment from corruption to judicial corruption after his trial court had ruled. Everything flowed from that.

"In the “Drassich case”, Mr. Drassich was sentenced to eight years and three months in prison for corruption. Seeking review by the Supreme Court, he said that the crime has lapsed, but the Court rejected his claim giving a different qualification of the fact committed: instead of “simple” corruption, the conduct was considered corruption of the judiciary. This has a more severe punishment which results in a longer prescription time and in the final conviction of MrDrassich. Therefore, Mr. Drassich presented his appeal to the ECHR. It sentenced Italy because the change in the indictment after the trial in factual instance had been completed was not respectful of art. 6 of the European Convention: neither the defendant nor the Public prosecutor had the possibility to discuss the new qualification.

Taking advantage of the ECHR decision, Mr. Drassich asked to the competent judge to stop the execution on the basis of art. 670 of the Italian Criminal Procedure Code, as the Supreme Court stated in the “Dorigo case”. Nevertheless, in this case the Supreme Court, though stating that the final decision couldn’t be executed, didn’t apply art. 670 of the Criminal Procedure Code. As a matter of fact, its decision was based on art. 625-bis: however, art. 625-bis provides an extraordinary remedy useful only in case of mistake on (sic) fact.
22)."

http://www.internationallawreview.eu/fisiere/pdf/LR_007RomitoandTracogna_1.pdf (p21/22)

 

[Numbers]

Yes I really didn't express myself well in my opening sentence. The point I wanted to stress was that the convention now has a very strong foothold in Italian constitutional law. Even though Italy lags quite some way behind it's European neighbours, changes have occurred and will continue to do so. I don't wish to minimise the size of the task however. It would seem that a great many applications continue to be received because the courts, all the way up to cassation are not following constitutional guidelines.

Also, the gross (total) applications include a backlog. This is large for Italy and several other countries. Generally, Italy, Russia, Ukraine, and Turkey have been the "Big Four" in terms of total applications, new applications, and application backlog. Some of the other Eastern European countries may actually have higher per capita total application figures. Some of these applications involve violations relating to property (right to hold private property is a human right in the ECHR) but others may relate to old abusive traditions from the communist period or earlier.

 

[Diocletus]

The s.c. Salduz principle is enshrined in the Italian procedure code already. The principle of non usability of incriminating statements released to investigators is even more protective in Italian law than in ECHR case law, and has been so for much longer.

Salduz is not properly applied by Italian courts, because Italian courts don't recognize the rights of suspects prior to be declared indagata by the magistrate, and also, Italian courts apply the wrong standard of voluntary waiver.

 

[Machiavelli]

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.

Turning off a phone is not evidence of guilt, however:
1) it is evidence of lying, since Sollecito declared his phone was on.
2) it is to be noted if it is an unusual action. Knox used to never do it.
3) it was a topic of inconsistency, since Knox presented unconvincing explanations for that.

It can be suspicious if coupled to other evidence. However it is obviously not a point itself.

 

[Kauffer]

The s.c. Salduz principle is enshrined in the Italian procedure code already. The principle of non usability of incriminating statements released to investigators is even more protective in Italian law than in ECHR case law, and has been so for much longer. What you fail to realize, is that the Salduz principle has nothing to do with the case.

It's "enshrined " where?

It's central to this case.

 

[Diocletus]

Taking advantage of the ECHR decision, Mr. Drassich asked to the competent judge to stop the execution on the basis of art. 670 of the Italian Criminal Procedure Code, as the Supreme Court stated in the “Dorigo case”. Nevertheless, in this case the Supreme Court, though stating that the final decision couldn’t be executed, didn’t apply art. 670 of the Criminal Procedure Code. As a matter of fact, its decision was based on art. 625-bis: however, art. 625-bis provides an extraordinary remedy useful only in case of mistake on (sic) fact.
22)."22)

Isn't 625bis the same law that those scumbags used to reverse Hellman? 625b seems to be the prime tool of judicial corruption.

 

[Diocletus]

It's "enshrined " where?

It's central to this case.

It's enshrined in the Italian constitution the way Pete Rose is enshrined in Cooperstown.

 

[Machiavelli]

Salduz is not properly applied by Italian courts, because Italian courts don't recognize the rights of suspects prior to be declared indagata by the magistrate, and also, Italian courts apply the wrong standard of voluntary waiver.

The Italian courts do recognize the rights of suspects before being declared indagato/indagata. The code prevents from using their declarations too.
There is also no problem with the standards of voluntary waiver.
However there is a more general principle working in the Italian system, that differs from the common law systems in general: provisions and adjustments are normally applied subsequently, not preemptively. The final assessment matters, not the initial one. Whether the suspect was a suspect or an informant, the decision on this will be taken subsequently and not in real time. If a statement is admissible or not is decided subsequently. All evidence in general is always not subjected to preliminary assessment. It is the late assessment that matters, not the real time procedure steps.

 

[Planigale]

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.



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.

This reflects a very different philosophy from English common law. Essentially burglary is illegal entry (without permission) with intent to commit a criminal act (or having done so). Burglary with intent to commit rape is a specific crime. The penalty is severe. You do not have to have stolen anything to have committed burglary. The penalty is up to 14 years in prison. Under English common-law Guede would have likely been guilty of a serious offence with a possible prison sentence.

In contrast as I understand civil law systems such as Italy has, have a concept of honour crimes which Callunia is one. Common law does not have a similar concept. Slander and libel do not really deal with honour, but material loss secondary to libel / slander. Common law systems are very material.

As an aside, the philosophy behind common law is partly that the King delivers devine justice on earth. Bit the authority of the King is only valid whilst in line with the concept of justice. This is why common law systems are interested in delivering justice. Even mediaevalEnglish Kings were limited by what was regarded as just. Thus torture had to be authorised by the court of star chamber. Mediaeval English Kings were more restricted in carrying out torture than apparently twenty first century US presidents are.

 

[Machiavelli]

It's "enshrined " where?

It's central to this case.

It's a pillar of the procedure code. It's not an article, it's a structure feature. In this case it is applied for example to Sollecito's statements to the police and to judge Matteini, where he states that Knox probably went out, where he admits he lied, etc. These are incriminating statement that are not admissible, because of the principle.
But Knox's calunnia is not admitted as an incriminating statement. Instead it is evidence of the commission of a new crime. It has nothing to do with the principle.

 

[Chris_Halkides]

One couldn't count; the other couldn't use a ruler

Rinaldi didn't mistake a shoeprint for another.

Ippolito misidentifed the shoe prints. Rinaldi's mistakes are apparent from Dr. Vinci's presentation.

 

[Planigale]

A definition of burglary from Wikipedia:
Burglary (also called breaking and entering[1] and sometimes housebreaking)[2] is a crime, the essence of which is illegal entry into a building for the purposes of committing an offence. Usually that offence will be theft, but most jurisdictions specify others which fall within the ambit of burglary. To engage in the act of burglary is to burgle (in British English) or to burglarize (in American English).

The point is that there are burglars who merely aim to steal. But there are others who enter a residence or other building with the intent to harm the people inside (this crime is sometimes called "home invasion"). An American view, probably borrowed from the English, is expressed in the maxim "A man's home is his castle." In the US, the police need a court-issued warrant to enter a house, unless the safety of a person clearly requires immediate intervention. And generally, no person intent on committing a crime against property or persons inside a house may lawfully enter that house by breaking-in, unauthorized entry, or deception.

ETA: Thus, Rudy Guede's crimes in the upstairs flat of the cottage could be described (in US terms) as including burglary or home invasion, theft, murder, and rape (or sexual assault).

A propos I early referenced that England is repealing some 747 year old laws. Partly these prevent a landlord entering the property occupied by a tenant to take belongings of a tenant in lieu of rent. So there are even long standing legal restrictions on entering property you own if it is occupied as a domicile by someone else. (This right has not been removed just restated so the older versions are unnecessary.)

 

[Kauffer]

It's a pillar of the procedure code. It's not an article, it's a structure feature. In this case it is applied for example to Sollecito's statements to the police and to judge Matteini, where he states that Knox probably went out, where he admits he lied, etc. These are incriminating statement that are not admissible, because of the principle.
But Knox's calunnia is not admitted as an incriminating statement. Instead it is evidence of the commission of a new crime. It has nothing to do with the principle.

That's a different procedure albeit you have misrepresented the facts. The separate character of the investigative and trial phases of a case, as far as I can see. The trial judge hears aknew and Mr Sollecito elected not to testify. Salduz is a relatively new judgement. I doubt one magistrate in ten would have the faintest idea what I was talking about if I asked them to explain it to me. I don't think you'd ever heard of it until Numbers started researching the case law and we started talking about it.