Continuation Part 12: Amanda Knox/Raffaele Sollecito

[Numbers]

Well then it must be acknowledged that Curatolo had a wonderful sense of timing and irony, as the last court to hear him, was so offended as to cut short his appearance.

{1} Does this mean that under ECHR principles, the last court to judge him in person is considered a definitive finding that he is an unreliable witness?
Mignini's go to witness, testified in two other murder trials, at least one of which resulted in a conviction according to Frank's blog.

Wonder if Curatolo's other victims may benefit from the fall out of this case?

{Numbering added to quote.}

Thinking about your question (1). ECHR states it doesn't evaluate the reliability of individual items of evidence; that is the responsibility of the domestic tribunals. ECHR states that its mandate is to evaluate whether a trial overall was fair or unfair (and other claims of violations of the Convention). So it would examine the Curatolo issue in relation to all the other evidence. In doing this, ECHR would look at the practical evaluation of each significant item of evidence, the adversarial contest over the evidence, and whether the judges' evaluations were reasonable rather than arbitrary or conclusory.

 

[Kauffer]

Not everyone thinks so.

Mr Wismayer's argument is tightly made and his citations from the transcripts support his contention. However, Ms Knox's account in WTBH varies. She makes no mention of being shown Lumumba's message on her phone by the police. Nevertheless, nothing she recounts in her book detracts from the possibility that the police deleted the message on the spot.

 

[Numbers]

Would this not, though, need to be part of the appeal from the defendants? Surely this would not automatically apply unless someone who was a party to the case made specific and formal reference to them?

You raise an interesting question. The domestic courts and other authorities are obligated to follow the ECHR case-law.

But perhaps a violation of the Convention or case-law is perceived by the defense but not by the domestic court; then the alleged violation should be raised with court. Here is the ECHR advice to lawyers in such cases:

It is highly advisable for allegations of violations of the Convention to be made in writing, such as in written submissions, written notes to the court, or other written conclusions. In the first place, the appropriateness of pleading human rights violations is no longer disputable, and judges must determine these issues. Moreover, where violations have been pleaded in writing the lawyer will be able to produce those documents at every stage of the national proceedings, and ultimately before the ECHR.

Source:
THE EUROPEAN COURT OF HUMAN RIGHTS: QUESTIONS & ANSWERS FOR LAWYERS 2014

If the violations are not raised as violations of the Convention, but rather as violations of domestic law before the domestic court by the defense, and are not addressed to the defense's satisfaction by the court, they can still be brought before the ECHR.

 

[Kauffer]

Would this not, though, need to be part of the appeal from the defendants? Surely this would not automatically apply unless someone who was a party to the case made specific and formal reference to them?

I think the appeals have referenced convention case law, but in any case I'm not at all sure that Cassation is bound in the way you suggest.

 

[The Central Scrutinizer]

You have a choice. . . .You can plead guilty and get out of jail today or fight it and spend at least the next few years in jail. Might even get another tainted jury that convicts you. Very tempted even if innocent to take the deal.

Not my problem. Guilty.

 

[Bill Williams]

Would this not, though, need to be part of the appeal from the defendants? Surely this would not automatically apply unless someone who was a party to the case made specific and formal reference to them?

I think the appeals have referenced convention case law, but in any case I'm not at all sure that Cassation is bound in the way you suggest.

I'm not aware of suggesting anything.... just that how does Cassazione formally become aware of its ECHR obligations unless raised by a party to the case?

 

[Kauffer]

Not my problem. Guilty.

Are you aware that if a new poster posted here today for the first time and then once a day thereafter, it would take him or her until the year 2147 to reach the same number as you! And that's only if you stop now! More than 132 years! This trial cannot possibly go in that long, can it?

 

[Kauffer]

I'm not aware of suggesting anything.... just that how does Cassazione formally become aware of its ECHR obligations unless raised by a party to the case?

Cassation operates within a constitutional framework. It's obligations with regard to the convention are defined by the Constitutional Court not defendants. It is required to confirm that the law is correctly applied by the court underneath it.

 

[Bill Williams]

Cassation operates within a constitutional framework. It's obligations with regard to the convention are defined by the Constitutional Court not defendants.

Truly, I need schooling on this.

Cassazione has already demonstrated that it perhaps does not really care about constitutional frameworks, but operates within the confines of the "parties" within the large Italian judicial world.

As demonstrated here in these threads by Machiavelli, the party of the PMs will put up a spirited defence of their point of view - and claim that their point of view satisfies all constitutional requirements.

The other side of this, is that the courts seem able to simply invent things on their own - make reference to factoids or interpretation NOT brought forth by either side. For instance (perhaps a minor example) no one except for Rudy Guede said that the crime was a fight over money - not Mignini, not Massei, not Crini. Yet Nencini is not shy to reach back and simply take Rudy at his word, where Rudy had not even been questioned/cross examined on ANY points in relation to AK and RS.

I believe Numbers (upthread) suggested that even if not part of an appeal to Cassazione, the defendants can still make reference to violations in an application to ECHR. Perhaps that's the answer.

I've just assumed that the court could only rule on the stuff put before it at trial.

 

[Numbers]

But do you now accept that the European Convention on Human Rights stands above the Italian Criminal Code, that it is part of the constitution of Italy and that judges in all courts including Cassation are under an extant obligation as per Decisions 348 and 349 of the Constitutional Court to interpret Italian law in compliance with the convention? Do you accept that the meaning of the convention, as per Decision no. 348 is, in fact, to be derived from the case law of the European Court of Human Rights? Do you accept that Cassation is under a constitutional obligation to examine the trials of Amanda Knox and Rafaelle Sollecitio together with the Nencini motivations for breaches of their convention rights and that if breaches are found, that the court is constitutionally compelled either to acquit them or to send the case back to the appellate level?

Would this not, though, need to be part of the appeal from the defendants? Surely this would not automatically apply unless someone who was a party to the case made specific and formal reference to them?

I'm not aware of suggesting anything.... just that how does Cassazione formally become aware of its ECHR obligations unless raised by a party to the case?

Does my post, #83, answer you question?

The judges are supposedly aware of the Convention and Case-law. There are Guides to the Case-law and yearly references with updates on judgments.

If the domestic court doesn't perceive a violation that the defense alleges, the defense should raise that issue in a writing to court, citing specific issues of violation and case-law.

 

[Numbers]

Truly, I need schooling on this.

Cassazione has already demonstrated that it perhaps does not really care about constitutional frameworks, but operates within the confines of the "parties" within the large Italian judicial world.

As demonstrated here in these threads by Machiavelli, the party of the PMs will put up a spirited defence of their point of view - and claim that their point of view satisfies all constitutional requirements.

The other side of this, is that the courts seem able to simply invent things on their own - make reference to factoids or interpretation NOT brought forth by either side. For instance (perhaps a minor example) no one except for Rudy Guede said that the crime was a fight over money - not Mignini, not Massei, not Crini. Yet Nencini is not shy to reach back and simply take Rudy at his word, where Rudy had not even been questioned/cross examined on ANY points in relation to AK and RS.

I believe Numbers (upthread) suggested that even if not part of an appeal to Cassazione, the defendants can still make reference to violations in an application to ECHR. Perhaps that's the answer.

I've just assumed that the court could only rule on the stuff put before it at trial.

You are pointing out the difference between what is and what is supposed to be. Or de facto compared to de jure.

The police and courts are supposed to operate according to law. That is not always true. IMO, it is very obviously not true in the Knox-Sollecito case. It is amazing to me as an American that upper courts in particular clearly disregard Constitutional safeguards in Italy, as demonstrated in this case. I hope that the next CSC hearing will conform to Italian and Convention law.

 

[Bill Williams]

Does my post, #83, answer you question?

The judges are supposedly aware of the Convention and Case-law. There are Guides to the Case-law and yearly references with updates on judgments.

If the domestic court doesn't perceive a violation that the defense alleges, the defense should raise that issue in a writing to court, citing specific issues of violation and case-law.

THE EUROPEAN COURT OF HUMAN RIGHTS: QUESTIONS & ANSWERS FOR LAWYERS 2014

If the violations are not raised as violations of the Convention, but rather as violations of domestic law before the domestic court by the defense, and are not addressed to the defense's satisfaction by the court, they can still be brought before the ECHR.

So I guess the only remaining question is: if the defence doesn't raise it (on appeal to Cassazione) as either a violation of domestic law or a violation of ECHR conventions, can they still make application to ECHR claiming it is a violation of convention?

 

[Numbers]

So I guess the only remaining question is: if the defence doesn't raise it (on appeal to Cassazione) as either a violation of domestic law or a violation of ECHR conventions, can they still make application to ECHR claiming it is a violation of convention?

Good question. Unless the applicant seeks a domestic remedy for the alleged violation, and exhausts the reasonable practical domestic remedies, by the Convention rules the applicant's claims would be inadmissible.

A reasonable practical remedy would be, for example, the highest court that would by law or practice hear the case. One wouldn't need to seek a pardon, for example.

Since the ECtHR states that it is the master of the facts and of the Law, it sometimes (rarely) finds that an applicant has suffered a violation other than the one explicitly claimed.

 

[Numbers]

Good question. Unless the applicant seeks a domestic remedy for the alleged violation, and exhausts the reasonable practical domestic remedies, by the Convention rules the applicant's claims would be inadmissible.

A reasonable practical remedy would be, for example, the highest court that would by law or practice hear the case. One wouldn't need to seek a pardon, for example.

Since the ECtHR states that it is the master of the facts and of the Law, it sometimes (rarely) finds that an applicant has suffered a violation other than the one explicitly claimed.

Adding a thought: the term "practical" includes the concept of what the domestic system truly allows. For example, if the domestic system threatens someone with a legal (or extralegal) penalty for trying to pursue a claim in the domestic courts that his/her rights were violated, then the ECtHR will take that into consideration in terms of exhaustion of domestic remedies.

The above could apply to Amanda Knox's claim of mistreatment during her interrogation, if it were argued that the slander lawsuits brought against her and then against her parents inhibited or limited certain legal or formal complaint avenues for potential remediation.

 

[Planigale]

It is arguable that according to ECHR, the CSC labeling of second-level court findings as "illogical" and then substituting CSC's own finding of fact is arbitrary, since the CSC has not conducted a full trial and heard testimony and reviewed evidence. And according to the ECHR, an arbitrary court judgment is an unfair one and thus a violation of the ECHR.

Certainly the CSC said that all the evidence ('uniform and global') should be evaluated in the re-do second level trial, and a conclusion drawn from re-evaluating all the evidence, and particularly asked for additional examination of the knife. Reading the cited cases from ECHR, they do suggest that in this case all the testimony should be re-heard as if de novo including an opportunity to question witnesses (including expert testimony). Nencini probably made a procedural error in not running the case as if it was a second level trial de novo on the murder etc. charges. (This may have been acceptable in Italian jurisprudence, but probably not according to ECHR rulings). Given that the callunia charge had been finalised, the evidence on this should probably not have been represented, the civil party to this excluded. This really did seem to be double jeopardy in an inappropriate fashion. Knox had been tried and convicted of callunia by Hellman, and the conviction confirmed, then gets retried and the penalty increased. I wonder if the ECHR will consider this? Alternatively since this case actually seems on-going and presumably the ISC will have to confirm the penalty from Nencini this may mean Italy could claim that the case is on-going so not eligible for ECHR. I think that if a claim is made to ECHR in due course on murder the failure to re hear the case including opportunity to re-question all witneesses will be one of the grounds.

 

[Planigale]

You have a choice. . . .You can plead guilty and get out of jail today or fight it and spend at least the next few years in jail. Might even get another tainted jury that convicts you. Very tempted even if innocent to take the deal.

You should also note that Baldwin did not want to at first take the plea and was willing to fight it out in court but he did not want to roll the dice (even with low odds) that his friend might be executed. Damien was also suffering much more in prison because Arkansas has very limited medical care from those on death row.

This does seem an unpleasantly commercial aspect to wrongful convictions in the US. Many evident innocent people are given the choice of remaining in prison and having a re -trial with no guarantee of a finding of innocence, or accepting a guilty verdict and immediate release or a pardon (which means you were guilty but are forgiven). The consequence is that the state avoids having to pay compensation for wrongful conviction. It also improves the statistics of the prosecution since it never gets formally registered as a lost case. It seems as if the legal system loses sight of justice.

 

[Planigale]

Would this not, though, need to be part of the appeal from the defendants? Surely this would not automatically apply unless someone who was a party to the case made specific and formal reference to them?

No. This is supposed to be incorporated in to how the law is interpreted by the judge. It is a bit like saying that unless the defence explicitly references the US constitution then the defendant loses constitutional rights.

 

[anglolawyer]

Hey Anglo, this was great reading.

I was wondering if the police could have 'fudged' the translation of 'stay home because we're slow', to become, 'stay home because we;re closed' - because the police were intentionally trying to implicate Patrick?

Very possible.

 

[anglolawyer]

Mr Wismayer's argument is tightly made and his citations from the transcripts support his contention. However, Ms Knox's account in WTBH varies. She makes no mention of being shown Lumumba's message on her phone by the police. Nevertheless, nothing she recounts in her book detracts from the possibility that the police deleted the message on the spot.

Her own failure to endorse the theory wholeheartedly is the main problem. It's just that, tantalisingly, she has said several times that she was shown his message. Another such instance cropped up in the recording of her 18 Dec interrogation (IIRC).

 

[Bill Williams]

No. This is supposed to be incorporated in to how the law is interpreted by the judge. It is a bit like saying that unless the defence explicitly references the US constitution then the defendant loses constitutional rights.

"Supposed to be", is the operative term here. There isn't a judge who brings down a judgement who doesn't fully believe that he/she has fully complied with the constitution or the ECHR convention.

The point is that unless some sort of appeals' level above that judge is informed of which item of the convention is violated, one cannot assume that that upper level has investigated.

Isn't it that unless informed by one party or another of a specific constitutional/convention transgression, that the higher level simply assumes all is well on all points? Does the ECHR, for instance, have an independent investigative arm apart from the parties to the dispute? I do not believe so.