Continuation Part 12: Amanda Knox/Raffaele Sollecito

[Numbers]

Most of the applications to the ECHR from Italy are from Italian citizens (at least their names seem Italian - see HUDOC and look for cases against Italy); I don't believe those relatively few from non-Italians make much difference. There are so many from Italians that Amanda Knox's application will in a sense be hardly noticed.

Similarly, most cases against any of the ECHR CoE States are from their own nationals.


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

Italy
Applications pending before the
court on 04/07/2014

Total pending Applications 23347
Applications pending before a judicial
formation: 15497
Single Judge 480
Committee (3 Judges) 4406
Chamber (7 Judges) 10610
Grand Chamber (17 Judges) 1

If a judge is unaware of this case, I would wonder what planet he is on, or how much LSD he used in the 1960's.

{Emphasis added to quotes.}

Just a clarification: Both quotes have validity. Note the qualifier "in a sense" in the first quote. BTW, some of the ECHR judges are women, so "he" in the second quote should be regarded as not exclusive regarding gender.

 

[Kauffer]

Thanks for directing me to Amanda's account of Napoleone's evidence yesterday. You reminded me of the Guilters' Dilemma (maybe it should be a Paradox, not sure). That is to reconcile the belief that she was not a suspect as of 10.30 p.m. on 5th Nov with all her deeply suspicious behaviour and the clear and obvious pointers to her guilt all of which were fully evident before the 5th.

Oh you're most welcome - discussion helps us all focus on the meaning of the evidence. Every time the colpevolisti point to Ms Knox's "suspicious" behaviour, which the ILE brought up, it cements the nature and the fact of the violation of her convention rights when she was repeatedly interrogated without counsel.

 

[anglolawyer]

Oh you're most welcome - discussion helps us all focus on the meaning of the evidence. Every time the colpevolisti point to Ms Knox's "suspicious" behaviour, which the ILE brought up, it cements the nature and the fact of the violation of her convention rights when she was repeatedly interrogated without counsel.

Quite. And now I think of it, Nappy's evidence will be useful when the case gets in front of the ECHR. I am hoping Mach qualifies as a human rights lawyer by then and appears for Italy when he can run his argument that you aren't a suspect until the PM signs the right paperwork in triplicate (white copy for the file, pink copy to the court and yellow copy to the defence). I can just see the panel of judges falling off their chairs and laughing helplessly.

 

[Kauffer]

Quite. And now I think of it, Nappy's evidence will be useful when the case gets in front of the ECHR. I am hoping Mach qualifies as a human rights lawyer by then and appears for Italy when he can run his argument that you aren't a suspect until the PM signs the right paperwork in triplicate (white copy for the file, pink copy to the court and yellow copy to the defence). I can just see the panel of judges falling off their chairs and laughing helplessly.

Diocletus' musing query yesterday was most pertinent: Will Italy appoint their best lawyer or a 1st year grad to work the case? The unreasonable all guns blazing approach of the judiciary is unlikely to be replicated in the manner of Italy's handling of the ECHR process of considering Ms Knox's application, or any others from the case which may follow.

 

[anglolawyer]

Diocletus' musing query yesterday was most pertinent: Will Italy appoint their best lawyer or a 1st year grad to work the case? The unreasonable all guns blazing approach of the judiciary is unlikely to be replicated in the manner of Italy's handling of the ECHR process of considering Ms Knox's application, or any others from the case which may follow.

Failing Machiavelli himself, I am hoping for Mignini and failing him, Galati. Best of all would be Nencini but he's a judge so tough. It would be a good laugh though.

 

[Numbers]

Well of course it is.

Call it a wild guess on my part, but I think the Italian judiciary as an institution might have a different view of your observations regarding their laws and the Caluunia application to ECHR.

I don’t know their opinion which is why I fail to understand how anyone can present the caluunia application as a slam-dunk ECHR case.


So that Italian government official could be an ex Italian Supreme Court judge for all you know, like Giovanni Galati, remember him?



I know this, but sometimes folks post as though they have read the application, no one here has admitted to that, everything posted here about the caluunia application is educated suppositions.



I do not believe the application of the law is binary and like everyone posting here you cannot predict or consider every possible legal argument. I have followed this case via the web going back to SeattlePI blog in 2009 and I am yet to see a slam-dunk.

{Highlighting added to quotes.}

A clarification: The ECHR is not an Italian court. One judge from Italy is a member of the ECHR group of 47 judges. The current judge from Italy is Guido Raimondi, who has been a Vice-President of the Court and President of Section since 1 November 2012. He has served on the Italian Court of Cassation and on several international legal organizations.

The ECHR states {Highlighting added}:

The judges are elected by the Parliamentary Assembly of the Council of Europe from lists of three candidates proposed by each State. They are elected for a non-renewable term of nine years.
Although judges are elected in respect of a State, they hear cases as individuals and do not represent that State. They are totally independent and cannot engage in any activity that would be incompatible with their duty of independence and impartiality.

Source: http://www.echr.coe.int/Pages/home.aspx?p=court/judges&c=#n1368718271710_pointer

Information on the election of judges by the Parliament of the Council of Europe is provided at:

http://website-pace.net/en_GB/web/as-jur/echr-judges-election

A CoE State nominates 3 candidate judges (all must be of "high moral character and posses the qualifications required for appointment to high judicial office").
____
In a Chamber (court of 7 judges), which is the usual initial court for cases of some uniqueness, one judge is, by the Court rules, from the respondent State, unless he/she seeks not to participate. If case of a decision of a judge to not participate, a judge from another State will be chosen as a replacement to assure a 7-judge panel.

While Italy is entitled to respond to claims from an applicant, its claims will judged by the Court, and not merely accepted.

The basis of judgment will be:

1) the facts of the case as decided by the ECHR (Court), based on information from both sides (adversarial trial, but conducted by correspondence) as well as information from 1.1) outside experts and/or organizations or 1.2) investigations the Court may consult or undertake, respectively;

2) the codified laws and constitution of Italy, consulted by the Court for reference and to search for possible contradiction with the Convention, ECHR case-law, and present ECHR interpretation of the Convention and case-law;

3) the Convention and ECHR case-law ("the Law") and present ECHR interpretation of the Convention and case-law.

Thus, the opinion of the Italian judiciary in any case in which Italy is the respondent is not a determining factor. Italy has been a respondent State at least 2,252 times, and Court decisions have frequently been that Italy has been in violation of the Convention. (The figure 2,252 is found through HUDOC as the number of Chamber and Grand Chamber cases in which Italy was the respondent State. The total including Committee judgments is 2,312; the total including inadmissible or struck-out cases would be much higher.) Only Turkey has been a respondent State more often in Committee, Chamber, and Grand Chamber cases (3,096 cases).

The representative from Italy to the ECHR is a lawyer from or representing the Ministry of Justice. As expected for any competent lawyer, that individual appropriately represents a client, the government of Italy, which is not the Italian judiciary. The connection between the ECHR and the CoE States is, in terms of execution of ECHR judgments, indirect: ECHR to the Committee of Ministers of the Council of Europe to the Government of the CoE State. The Government of the CoE State decides, generally, on the way it will execute the terms of an ECHR judgment. It may involve a change in administrative practice, a Parliamentary act, or a judicial action. But there is no direct connection from the ECHR to the judicial branch of any CoE country.

 

[Numbers]

{Emphasis added to quotes.}

Just a clarification: Both quotes have validity. Note the qualifier "in a sense" in the first quote. BTW, some of the ECHR judges are women, so "he" in the second quote should be regarded as not exclusive regarding gender.

From:

http://website-pace.net/en_GB/web/as-jur/echr-judges-election

To ensure gender-balance on the Court, states are also asked to put forward at least one candidate from "the under-represented sex" unless exceptional circumstances exist which permit them not to do so. As a result, about 40 per cent of the judges on today's Court are women, a record unrivalled among international courts.

 

[Numbers]

Diocletus' musing query yesterday was most pertinent: Will Italy appoint their best lawyer or a 1st year grad to work the case? The unreasonable all guns blazing approach of the judiciary is unlikely to be replicated in the manner of Italy's handling of the ECHR process of considering Ms Knox's application, or any others from the case which may follow.

This is a good question. But the "superiority" of some of the "best" lawyers, prosecutors, or judges in this case seems to rely on the stacked-deck principle of law.

BS arguments may not be effective in an objective court.

 

[Diocletus]

The "PMF" General Counsel, "Jackie", has, as Diocletus and others have noted, gone obsessive over the issue of custody. He argues that Ms Knox's procedural rights become live only if you can apply an "objective test of custody". He's been citing some US case law on the subject.

This guy is ridiculous. You know what happens when your answer to your law school exam relies on (i) a 22-year old case that predates the leading case on the subject by 15 years and (ii) cases from some other country? You end up in business school.

Anyway, custody was never an issue in Imbroscia because everyone agreed that the defendant was, in fact, arrested. What the case appears to hinge on, when analyzed under the framework of Salduz and progeny, is that even though his Art. 6-3 right to counsel was in fact violated (para. 36), the defendant wasn't prejudiced by the use of the statements that were taken in violation of his rights, and therefore we don't have an fair trial violation (para. 35). This has zero relevance to Knox's application, because her lawyerless signing of the police-drafted incriminating statements is the whole basis for the callunnia conviction. There's also the fact that Imbroscia is a massive drug-smuggling case, and these cases, like terrorism cases, are just different.

Now that we've educated him, here is an assignment for young Jackie: when we look at Imbroscia, we can see that the defendant was initially denied counsel pursuant to a local law, Art. 17 of the CCP of the Canton of Zurich, that allowed the prosecuting authorities discretion to determine whether a defendant should have access to counsel during the initial stages of the investigation, including questioning. Jackie's assignment is to determine whether this local law still stands, and if it has changed, how has it changed and why. Well, we can see in paragraph 28 of Imbroscia that the law was changed in 1991 (6 years after the interrogations at issue in Imbroscia) to require counsel to be admitted to interrogations after the suspect has made his first statement or after 14 days. But, I'll bet it's been changed again . . . say around 2008, which is the date of Salduz.

Jackie can post a cowardly rant from the comfort of home when he finds the answer.

 

[Diocletus]

Diocletus' musing query yesterday was most pertinent: Will Italy appoint their best lawyer or a 1st year grad to work the case? The unreasonable all guns blazing approach of the judiciary is unlikely to be replicated in the manner of Italy's handling of the ECHR process of considering Ms Knox's application, or any others from the case which may follow.

Yeah, forget Knox's application. I'm most interested in seeing Italy's response. They are going to have some very interesting decisions to make. Anyone know how to translate "hum-ah-dah, hum-ah-dah" into Italian?

 

[Diocletus]

Quite. And now I think of it, Nappy's evidence will be useful when the case gets in front of the ECHR. I am hoping Mach qualifies as a human rights lawyer by then and appears for Italy when he can run his argument that you aren't a suspect until the PM signs the right paperwork in triplicate (white copy for the file, pink copy to the court and yellow copy to the defence). I can just see the panel of judges falling off their chairs and laughing helplessly.

I thought Mach gave up on that one, and his latest position was that the police have to admit that they suspected you of the exact same crime that the prosecutor ended up charging you with?

 

[CoulsdonUK]

{Highlighting added to quotes.}

A clarification: The ECHR is not an Italian court. One judge from Italy is a member of the ECHR group of 47 judges. The current judge from Italy is Guido Raimondi, who has been a Vice-President of the Court and President of Section since 1 November 2012. He has served on the Italian Court of Cassation and on several international legal organizations.

The ECHR states {Highlighting added}:

The judges are elected by the Parliamentary Assembly of the Council of Europe from lists of three candidates proposed by each State. They are elected for a non-renewable term of nine years.
Although judges are elected in respect of a State, they hear cases as individuals and do not represent that State. They are totally independent and cannot engage in any activity that would be incompatible with their duty of independence and impartiality.

Source: http://www.echr.coe.int/Pages/home.aspx?p=court/judges&c=#n1368718271710_pointer

Information on the election of judges by the Parliament of the Council of Europe is provided at:

http://website-pace.net/en_GB/web/as-jur/echr-judges-election

A CoE State nominates 3 candidate judges (all must be of "high moral character and posses the qualifications required for appointment to high judicial office").
____
In a Chamber (court of 7 judges), which is the usual initial court for cases of some uniqueness, one judge is, by the Court rules, from the respondent State, unless he/she seeks not to participate. If case of a decision of a judge to not participate, a judge from another State will be chosen as a replacement to assure a 7-judge panel.

While Italy is entitled to respond to claims from an applicant, its claims will judged by the Court, and not merely accepted.

The basis of judgment will be:

1) the facts of the case as decided by the ECHR (Court), based on information from both sides (adversarial trial, but conducted by correspondence) as well as information from 1.1) outside experts and/or organizations or 1.2) investigations the Court may consult or undertake, respectively;

2) the codified laws and constitution of Italy, consulted by the Court for reference and to search for possible contradiction with the Convention, ECHR case-law, and present ECHR interpretation of the Convention and case-law;

3) the Convention and ECHR case-law ("the Law") and present ECHR interpretation of the Convention and case-law.

Thus, the opinion of the Italian judiciary in any case in which Italy is the respondent is not a determining factor. Italy has been a respondent State at least 2,252 times, and Court decisions have frequently been that Italy has been in violation of the Convention. (The figure 2,252 is found through HUDOC as the number of Chamber and Grand Chamber cases in which Italy was the respondent State. The total including Committee judgments is 2,312; the total including inadmissible or struck-out cases would be much higher.) Only Turkey has been a respondent State more often in Committee, Chamber, and Grand Chamber cases (3,096 cases).

The representative from Italy to the ECHR is a lawyer from or representing the Ministry of Justice. As expected for any competent lawyer, that individual appropriately represents a client, the government of Italy, which is not the Italian judiciary. The connection between the ECHR and the CoE States is, in terms of execution of ECHR judgments, indirect: ECHR to the Committee of Ministers of the Council of Europe to the Government of the CoE State. The Government of the CoE State decides, generally, on the way it will execute the terms of an ECHR judgment. It may involve a change in administrative practice, a Parliamentary act, or a judicial action. But there is no direct connection from the ECHR to the judicial branch of any CoE country.

Er, so nothing has changed assuming the caluunia application passes the admissibility phase of the process, both sides are given the opportunity to argue their case in writing and a judgement is rendered based on the interpretation of ECHR convention (case-law), yea that sounds impartial.

By the way, do you accept as a fact that Amanda’s lawyers submitted the caluunia application on the 25th November 2013, because she said so in her blog?

 

[anglolawyer]

I thought Mach gave up on that one, and his latest position was that the police have to admit that they suspected you of the exact same crime that the prosecutor ended up charging you with?

Not sure whether that is his new fall back position or simply an argument in the alternative.

 

[Diocletus]

Er, so nothing has changed assuming the caluunia application passes the admissibility phase of the process, both sides are given the opportunity to argue their case in writing and a judgement is rendered based on the interpretation of ECHR convention (case-law), yea that sounds impartial.

Well, something changes. Once an Art. 6 case is admitted, the odds increase expodentially that a violation will be found.

 

[CoulsdonUK]

Well, something changes. Once an Art. 6 case is admitted, the odds increase expodentially that a violation will be found.

Not really, if it is accepted as a fact that the caluunia application was submitted on 25th November that what just over 13 months ago, I doubt it has even started the admissibility phase yet, we’ll be talking about it this time next year assuming it phases the admissibility phase.

 

[Diocletus]

Not really, if it is accepted as a fact that the caluunia application was submitted on 25th November that what just over 13 months ago, I doubt it has even started the admissibility phase yet, we’ll be talking about it this time next year assuming it phases the admissibility phase.

You posited that nothing would change once the application is admitted, and I said that you're wrong. Now you're making some other point. Putting that to the side, I'll bet you're wrong again and that something has happened by now.

 

[Desert Fox]

Not really, if it is accepted as a fact that the caluunia application was submitted on 25th November that what just over 13 months ago, I doubt it has even started the admissibility phase yet, we’ll be talking about it this time next year assuming it phases the admissibility phase.

You posited that nothing would change once the application is admitted, and I said that you're wrong. Now you're making some other point. Putting that to the side, I'll bet you're wrong again and that something has happened by now.

I bet there is at least some talk going around in back channels about how they might be able to to come to a resolution.

 

[CoulsdonUK]

You posited that nothing would change once the application is admitted, and I said that you're wrong. Now you're making some other point. Putting that to the side, I'll bet you're wrong again and that something has happened by now.

I bet there is at least some talk going around in back channels about how they might be able to to come to a resolution.

Wonderful.

 

[Chris_Halkides]

Giobbi's suspicions predate the interrogations

Thanks for directing me to Amanda's account of Napoleone's evidence yesterday. You reminded me of the Guilters' Dilemma (maybe it should be a Paradox, not sure). That is to reconcile the belief that she was not a suspect as of 10.30 p.m. on 5th Nov with all her deeply suspicious behaviour and the clear and obvious pointers to her guilt all of which were fully evident before the 5th.

anglolawyer,

Someone here made the point long ago that everything that Dr. Giobbi said made him suspicious happened before the interrogations of 5 November. That coupled with Giobbi's acknowledging that he said to bring them both in would seem to be helpful to Ms. Knox's argument. YMMV.

 

[Numbers]

Er, so nothing has changed assuming the caluunia application passes the admissibility phase of the process, both sides are given the opportunity to argue their case in writing and a judgement is rendered based on the interpretation of ECHR convention (case-law), yea that sounds impartial.

By the way, do you accept as a fact that Amanda’s lawyers submitted the caluunia application on the 25th November 2013, because she said so in her blog?

No, my philosophical position is that of being a complete skeptic.
For example, I do not believe that the city of Strasbourg, France, where the ECHR sits, exists because I have never been there, and therefore, I cannot personally verify its existence.

On the other hand, having read Ms. Knox's memoir, Waiting to be Heard, I believe that the information she gives is as highly credible as that of the most reliable person. Thus, I accept that her statement about her ECHR submission is accurate.

In contrast, I have found that those who attack Ms. Knox (aka "guilters") have a tendency to produce incorrect or partially incorrect statements, and I make inferences from my finding.

ETA: To be more clear, I do not believe what Ms. Knox wrote in her blog merely because I read it there (which is how I take your question), but I do believe it is accurate because in my experience of reading her statements, she is a highly credible source.