Continuation Part 12: Amanda Knox/Raffaele Sollecito

[Dougm]

I hope like hell you're right, Doug, but when you look at the directions given to Nencini by the CSC itself ('conduct these two further, irrelevant enquiries to make it look as though you are doing something and then find them guilty') it is difficult to believe the same body will have the front to call the judge a moron. Still, it is Italy

I am just trying to figure out some logic, given the seemingly irrational decisions thus far. Despite different points of view and cultures, all human beings have some basic similarities, and I keep wondering why they would want to confirm such a ridiculous verdict as Nencini. Yet they might.

I guess I had been assuming that, following your logic above, the CSC would confirm, since Nencini seems to have done what they asked. Except it seems that he might have screwed up -- he came up with a whole new scenario and motive, and also made a bunch of factual errors in his motivation. The CSC might not care (!!), but maybe a combination of their habit of keeping these cases going on for years and years, plus the cluster F that is Nencini's motivation, might lead to them sending it back ... again????

Although some have speculated the CSC could acquit them, I just don't see that as an option, given what has gone before. But, as you said, it is still Italy. Who knows what might happen?

 

[carbonjam72]

I am just trying to figure out some logic, given the seemingly irrational decisions thus far. Despite different points of view and cultures, all human beings have some basic similarities, and I keep wondering why they would want to confirm such a ridiculous verdict as Nencini. Yet they might.

I guess I had been assuming that, following your logic above, the CSC would confirm, since Nencini seems to have done what they asked. Except it seems that he might have screwed up -- he came up with a whole new scenario and motive, and also made a bunch of factual errors in his motivation. The CSC might not care (!!), but maybe a combination of their habit of keeping these cases going on for years and years, plus the cluster F that is Nencini's motivation, might lead to them sending it back ... again????

Although some have speculated the CSC could acquit them, I just don't see that as an option, given what has gone before. But, as you said, it is still Italy. Who knows what might happen?

IUAM, kicking it to a united sessions panel, is the 'half-way house' to acquittal.

One step backing away from endorsing Nencini, and reducing the focus by delaying the eventual decision.

Letting things cool down, over a longer and longer period of time, before rejecting Nencini. Its worth the wait if the outcome is acquittal. Much better to dig the hole no deeper.

 

[Numbers]

A more advanced lesson on ECHR case-law.

CASE OF CREANGĂ v. ROMANIA 29226/03 23/02/2012 (Grand Chamber)

The applicant in this case is a police officer who, with a number of his colleagues, was invited by his superiors into a police building at 9:00 am to make a statement about a criminal investigation, and subjected to questioning by a prosecutor about corruption; he and some others were formally charged at 10:00 pm and ordered into pre-trial detention.

The relevance of this case to the Amanda Knox - Raffaele Sollecito case is that it gives some insights into the methods of reaching judgment by the Court, and it helps to understand how the Court may define the beginning of the period that Amanda was a suspect, or a person in custody.

That period would certainly commence when Amanda was invited or requested by a police officer to enter the interrogation room. Prior to that time, she had been, arguably, a visitor to the police station in a public area. For Raffaele, it began as soon as he entered the police station. If one considers Giobbi's testimony that he had ordered both to be brought in for questioning Nov. 5, then one could argue that for both the period under police control was when they entered the police station.

For Amanda, Giobbi's testimony on ordering both to be brought in and specifically the "invitation or request" to enter the interrogation room must be considered an official summons, because the police officer that asked her into the room stated in was to obtain further information from Amanda - to clear up some contradictions and to go over the list of people associated with Meredith. Amanda was not allowed any alternative at that moment but to enter that room; she was required to obey the police order.

In this case, the police had destroyed the log relating to the applicant's stay in the building, allegedly in accordance with their schedule for document retention. The Court states that in such matters, when the alleged violation of the Convention rights of an applicant are at issue, it is the responsibility of the respondent State to provide documentation, and the Court may make inferences if there is no production of such documentation.

If the applicant makes credible allegations of what occurred while he/she was under control of the police, as during an investigation, and the authorities do not produce an hour-by-hour or detailed account of the events during that period, the Court may make inferences. "Failure to provide such evidence would enable conclusions to be drawn as to the merits of the applicant’s allegations."

{Excerpts; emphasis added.}

(b) The burden of proof with regard to the alleged deprivation of liberty

88. The Court reiterates that, in assessing evidence, it has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems that use that standard. Its role is not to rule on criminal guilt or civil liability but on Contracting States’ responsibility under the Convention. The specificity of its task under Article 19 of the Convention – to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention – conditions its approach to the issues of evidence and proof. In the proceedings before the Court, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005-VII).

89. Furthermore, the Court agrees with the Chamber’s reasoning that Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio. It reiterates its case-law under Articles 2 and 3 of the Convention to the effect that where the events in issue lie within the exclusive knowledge of the authorities, as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. The burden of proof in such a case may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII; Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV; and Rupa v. Romania (no. 1), no. 58478/00, § 97, 16 December 2008). The Court has already found that these considerations apply also to disappearances examined under Article 5 of the Convention, where, although it has not been proved that a person has been taken into custody by the authorities, it is possible to establish that he or she was officially summoned by the authorities, entered a place under their control and has not been seen since. In such circumstances, the onus is on the Government to provide a plausible and satisfactory explanation as to what happened on the premises and to show that the person concerned was not detained by the authorities, but left the premises without subsequently being deprived of his or her liberty (see Tanış and Others v. Turkey, no. 65899/01, § 160, ECHR 2005-VIII, and Yusupova and Zaurbekov v. Russia, no. 22057/02, § 52, 9 October 2008). Furthermore, the Court reiterates that, again in the context of a complaint under Article 5 § 1 of the Convention, it has required proof in the form of concordant inferences before the burden of proof is shifted to the respondent Government (see Öcalan v. Turkey [GC], no. 46221/99, § 90, ECHR 2005‑IV).

90. The Court considers that these principles also apply in the instant case, on condition that the applicant provides prima facie concordant evidence capable of showing that he was indeed under the exclusive control of the authorities on the day of the events, that is to say, that he was officially summoned by the authorities and entered premises which were under their control. If that condition is satisfied, the Court will be able to consider that he was not free to leave, particularly when investigative measures were under way. It could therefore require the Government to provide a detailed hour-by-hour report on what happened in the premises in question and to account for the time spent there by the applicant. The Government would then have to provide satisfactory and convincing written evidence to support their version of the facts. Failure to provide such evidence would enable conclusions to be drawn as to the merits of the applicant’s allegations.

 

[anglolawyer]

That's a good one, Numbers. It seems quite natural that the authorities should have the burden of rendering an account (whether minute by minute or hour by hour as appropriate to the circumstances) of what happens while they have someone in custody. One particular area where this applies is Amanda's interrogation. This lasted about 2-3 hours (up to the 1.45 statement). If you read aloud to yourself her account of this period, e.g. in WTBH or the separate snippets in her trial testimony, you will find it takes a few minutes, no more. Guilters hover over these accounts on the look out for inconsistencies and incongruities (and hug themselves with glee when they think they find one) as if they think she should be able to give a verbatim account rather than patchwork of imprecise and fading recollections that is all ordinary people are capable of. Let's have the disclosure of all the documents relating to the interrogation (notes and memoranda of what she said, briefing notes and orders issued to the interrogation team, details of their shift patterns) and of all documents relating to the investigation up to that point (called 'unused' material here and 'Brady' material in the US) all of which would be routinely provided here or, if not, then accessible to production on application to the court with a very low threshold for success and no inhibition whatever in imputing misconduct to the cops. After all, if they've done nothing wrong, they have nothing to hide, right?

 

[Numbers]

Here is another sampling of ECHR case-law.

CASE OF MALA v. UKRAINE 4436/07 03/07/2014

This judgment is about a civil case relating to child maintenance. The subject of the case is not relevant, but characteristics of the domestic court opinions are.

The ECHR statements of interest, abstracted from the judgment, are {emphasis added}:

1. It is in the first place for the national authorities, in particular the courts, to interpret domestic law, and the Court will not substitute its own interpretation for theirs in the absence of arbitrariness.

1.1 That is, the Court will examine how the domestic courts applied national law. If the Court determines that the national law was applied arbitrarily, it will substitute its own interpretation.

2. The Court’s task remains to ascertain whether the proceedings in their entirety, including the way in which evidence and procedural decisions were taken, were fair.

2.1 Admissibility and interpretation of evidence and procedural decisions are again the responsibility of the domestic courts. However, if the Court determines that there was unfairness in the the way evidence was admitted or considered, or in the way procedures were decided upon or conducted, it will consider these factors in its judgment.

3. The principle of equality of arms requires “a fair balance between the parties”, and each party must be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent. The principle of fairness enshrined in Article 6 of the Convention is disturbed where domestic courts ignore a specific, pertinent and important point made by an applicant.

3.1 The defense must not be placed at a disadvantage to the prosecution by, for example, restrictions on the right to admit relevant evidence, failure of the court to consider any specific, pertinent and important point made by the defense, or by unfair procedural decisions or measures.

4. Judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision, and must be determined in the light of the circumstances of the case. The domestic courts must give detailed and convincing reasons for their refusal to take evidence proposed by the defense, especially where that evidence has considerable importance for the outcome of the proceedings.

4.1 The domestic courts must provide reasons for their judgments, and the reasons must be adequate and convincing and not arbitrary. In particular, refusals by the domestic courts to take evidence proposed by the defense must be supported by reasons that are detailed and convincing and not arbitrary, especially when the evidence is of considerable importance to the outcome of the case.



The ECHR made the following statements, which are generally applicable and may appear in other judgments{excerpts}:

47. The Court reiterates that it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I). Similarly, it is in the first place for the national authorities, in particular the courts, to interpret domestic law, and the Court will not substitute its own interpretation for theirs in the absence of arbitrariness. That being said, the Court’s task remains to ascertain whether the proceedings in their entirety, including the way in which evidence and procedural decisions were taken, were fair (see Tamminen v. Finland, no. 40847/98, § 38, 15 June 2004).

48. It is central to the concept of a fair trial, in civil as in criminal proceedings, that a litigant is not denied the opportunity to present his case effectively before the court and that he is able to enjoy equality of arms with the opposing side (see Steel and Morris v. the United Kingdom, no. 68416/01, § 59, ECHR 2005‑II). The principle of equality of arms requires “a fair balance between the parties”, and each party must be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see Batsanina v. Russia, no. 3932/02, § 22, 26 May 2009). Furthermore, the principle of fairness enshrined in Article 6 of the Convention is disturbed where domestic courts ignore a specific, pertinent and important point made by an applicant (see Pronina v. Ukraine, no. 63566/00, § 25, 18 July 2006, and Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 280, 21 April 2011).

49. Lastly, according to the Court’s case-law reflecting a principle related to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision, and must be determined in the light of the circumstances of the case (see García Ruiz, cited above, § 26, with further references).

53. At the same time, the Court does note the importance for the authorities to give detailed and convincing reasons for their refusal to take evidence proposed by an applicant, especially where that evidence has considerable importance for the outcome of the proceedings, like in the case at hand (see, for example, Vitzthum v. Austria, no. 8140/04, § 33, 26 July 2007).

 

[Numbers]

That's a good one, Numbers. It seems quite natural that the authorities should have the burden of rendering an account (whether minute by minute or hour by hour as appropriate to the circumstances) of what happens while they have someone in custody. One particular area where this applies is Amanda's interrogation. This lasted about 2-3 hours (up to the 1.45 statement). If you read aloud to yourself her account of this period, e.g. in WTBH or the separate snippets in her trial testimony, you will find it takes a few minutes, no more. Guilters hover over these accounts on the look out for inconsistencies and incongruities (and hug themselves with glee when they think they find one) as if they think she should be able to give a verbatim account rather than patchwork of imprecise and fading recollections that is all ordinary people are capable of. Let's have the disclosure of all the documents relating to the interrogation (notes and memoranda of what she said, briefing notes and orders issued to the interrogation team, details of their shift patterns) and of all documents relating to the investigation up to that point (called 'unused' material here and 'Brady' material in the US) all of which would be routinely provided here or, if not, then accessible to production on application to the court with a very low threshold for success and no inhibition whatever in imputing misconduct to the cops. After all, if they've done nothing wrong, they have nothing to hide, right?

Yes to all of what you write. Minute by minute is what applies. Also, the interrogation (or some police or prosecution activity or questioning) continued through to her next written statement at 5:45 am, IMO, and this should also be provided. The written documentation, notes, orders, memos, interrogation team names and payroll records (to show who was present and when they were ordered to be there), etc. relating to the interrogation period and pre-interrogation (from Nov. 2) period should all be demanded by the ECHR. Furthermore, any video and audio recordings of the interrogation should be demanded by the ECHR. They should seek information on what the video and audio recording practices were at the relevant time - were some interrogations or interviews recorded.

 

[Numbers]

Here is another statement from ECHR judges relating to Amanda's freedom of movement on Nov. 5/6, or at any time when the police were questioning or interrogating her.

This statement is from Creanga v Romania, but it is in a concurring opinion. Judge Raimondi is the judge from Italy and is one of the vice-presidents of the Court. From this concurring opinion, I believe he would judge Amanda's likely arguments as valid.

JOINT CONCURRING OPINION OF JUDGES
COSTA, GARLICKI, GYULUMYAN, MYJER,
HIRVELÄ, MALINVERNI, VUČINIĆ AND RAIMONDI


3. Firstly, the presence of the applicant in the NAP premises was a consequence of a summons to appear before the NAP in order to make statements for the purpose of a criminal investigation. While it may be true that, once he had entered the NAP premises, he might have had problems in trying to leave without permission, the same applies to many persons summoned to testify before a police authority, a prosecutor or a court. Such persons are under a duty to appear and to remain in place for such time as is necessary for their depositions to be taken, which means that they are not free to leave as long as investigative measures are under way (see paragraph 90 of the judgment). This limitation applies not only to persons summoned in their capacity as a “witness”, but also to those “suspects” (that is, persons already charged) who have not been detained on remand. Even if they may not be physically restrained to prevent them from leaving without permission, the law provides for sanctions, criminal as well as administrative, to secure their compliance. It is regarded as obvious, including under the Court’s case-law, that in the context of a criminal investigation, both the duty to appear and the duty not to leave before being permitted to do so are regarded as restrictions on freedom of movement.

 

[Kauffer]

A more advanced lesson on ECHR case-law.

CASE OF CREANGĂ v. ROMANIA 29226/03 23/02/2012 (Grand Chamber)

Snip....

90....... It could therefore require the Government to provide a detailed hour-by-hour report on what happened in the premises in question and to account for the time spent there by the applicant. The Government would then have to provide satisfactory and convincing written evidence to support their version of the facts. Failure to provide such evidence would enable conclusions to be drawn as to the merits of the applicant’s allegations[/HILITE].

Good one!

It's sort of like saying to the high contracting party: "So you haven't got any recordings and the police haven't turned over their notes. Well, you've got a bit of a problem then haven't you?!"

But it's a shame the court hasn't yet gone further and explicitly demanded interrogation recordings.

Intriguingly, this demand of the court recalls the police approach in the interrogation - an insistence that Ms Knox account precisely for her activities in chronological order. This ability to recall events in the manner demanded dissipates significantly over time.

If we cast our minds back to NYE, for example - a readily memorable event and try to recall precisely what we did, when and with whom in what order, we see the problem.

 

[Kauffer]

The sound of PMF Jackie's silence

Hey Jackie, you complained constantly when we didn't deal with your ECHR "test of custody" nonsense. So, we dealt with it!

It's all gone very quiet over there.

Read post nos. 1113 and 1129, Jackie and tell us what you've learned.

"Hugo", "Mr Pink" - what do you think!

 

[Numbers]

Good one!

It's sort of like saying to the high contracting party: "So you haven't got any recordings and the police haven't turned over their notes. Well, you've got a bit of a problem then haven't you?!"

But it's a shame the court hasn't yet gone further and explicitly demanded interrogation recordings.
Intriguingly, this demand of the court recalls the police approach in the interrogation - an insistence that Ms Knox account precisely for her activities in chronological order. This ability to recall events in the manner demanded dissipates significantly over time.

If we cast our minds back to NYE, for example - a readily memorable event and try to recall precisely what we did, when and with whom in what order, we see the problem.

{Highlighting added to quote.}

The ECHR is continually expanding its case-law. The opportunity to expand case-law, to more clearly define human rights, may be one reason they take certain cases to judgment rather than allow friendly settlement.

Amanda's application on her calunnia conviction may be a perfect case for ECHR to establish that interrogations should be recorded by video/audio, since the costs of doing that are so inexpensive now. It would give additional protection to defendants.

The ECHR could then say, no lawyer, no recording, that is a no no....There is therefore a violation.

The presence of a lawyer is clearly more important than merely a recording, but both together are a very strong protection.

 

[Desert Fox]

There are a lot of snide comments from the pro guilt side but something I simply do not understand them is this:

There are a huge number of problems involved in the interrogation from being at a time she would be exhausted, emotionally distraught (assuming innocence), feeling threatened*, in a language she partially understood, with a translator who was not really doing her job. There is something definitely wrong and I simply cannot understand why the pro guilt side cannot see this.

As well, if I was the police, I would make sure to record this interrogation because there are just so many potential pitfalls even if I normally do not. As I wrote previously, they could have simply brought a laptop into the interview room and recorded it that way. The pro guilt side never seems willing to at least state that they think a mistake was made.

*I work in Homeland Security port enforcement and I get nervous when I have to talk to cops.

 

[CoulsdonUK]

{Highlighting added to quote.}

The ECHR is continually expanding its case-law. The opportunity to expand case-law, to more clearly define human rights, may be one reason they take certain cases to judgment rather than allow friendly settlement.

Amanda's application on her calunnia conviction may be a perfect case for ECHR to establish that interrogations should be recorded by video/audio, since the costs of doing that are so inexpensive now. It would give additional protection to defendants.

The ECHR could then say, no lawyer, no recording, that is a no no....There is therefore a violation.

The presence of a lawyer is clearly more important than merely a recording, but both together are a very strong protection.

On the other hand, the caluunia application is being treated as just another ECHR application, which is exactly what it is, with an impartiality that may both surprise and disappoint some who post here. I cannot imagine senior ECHR judges clamouring to officiate this particular application, I wonder if any of them actual know anything about the case. Indeed, as an institution I see no evidence that ECHR has a publicly stated any concern with Italy’s judicial system more than any other member state.

I understand why some folks want to build this up to more than what it is; I wonder how many other applications were received on the same day as the caluunia application? I seriously doubt there are any back channel discussions going on or any sense of special treatment, as this would undermine the impartiality of the ECHR.

 

[Numbers]

The following is an ECHR case with some relevance regarding evaluation of evidence. A woman leaving a party was allegedly raped by a group of men. The police were slow to investigate. There was DNA evidence of semen (spermatozoids) on her clothing. The police forensic expert wished to do a DNA analysis; for unclear reasons, the police investigator did not authorize the analysis and it was not done. The case dragged on with no resolution for a number of years. The woman applied to ECHR alleging violations of Convention Articles 3 and 8.

The relevance is that the ECHR recognizes that DNA analysis of semen in a rape case is critical, and will not find the refusal to test or report DNA profiles of the putative semen stain on the pillow in this case a reasonable or fair approach to evidence.

CASE OF TYAGUNOVA v. RUSSIA 19433/07 31/07/2012


{excerpts}

72. Lastly, the Court notes that at no time did the investigator, despite the existence of DNA evidence (see paragraphs 22 and 28 above), order its analysis. It was only upon the applicant’s initiative that he considered such a possibility. He dismissed her request with a reference to the destruction of the evidence in question (see paragraph 33 above). Without delving into the issue of the validity of that argument furnished by the investigator, the Court cannot but notice that the relevant forensic expert report contained a conclusion to the contrary (see paragraph 28 above).

73. The above considerations coupled with the overall duration of the investigation raise doubts as to the effectiveness of the authorities’ response to the applicant’s allegations of rape and leave the criminal proceedings in the case devoid of meaning.

74. The Court concludes that the respondent State has failed to meet its positive obligations to conduct an effective investigation and to ensure adequate protection of the applicant’s private life. There has accordingly been a violation of Articles 3 and 8 of the Convention.

 

[Kauffer]

On the other hand, the caluunia application is being treated as just another ECHR application, which is exactly what it is, with an impartiality that may both surprise and disappoint some who post here. I cannot imagine senior ECHR judges clamouring to officiate this particular application, I wonder if any of them actual know anything about the case. Indeed, as an institution I see no evidence that ECHR has a publicly stated any concern with Italy’s judicial system more than any other member state.

I understand why some folks want to build this up to more than what it is; I wonder how many other applications were received on the same day as the caluunia application? I seriously doubt there are any back channel discussions going on or any sense of special treatment, as this would undermine the impartiality of the ECHR.

You're an interesting fellow, Coulsdon! Salduz was once "just another application" and look what it became - after an appeal.

The thing about the callunia case is that it covers the bases the court itself, not us, has decided are important. As for "back channel" activity, the court rules and available processes provide for that, if required.

The principle concern of the court is to deal with rights violations appropriately not to set out to cause international embarrassment.

 

[Numbers]

On the other hand, the caluunia application is being treated as just another ECHR application, which is exactly what it is, with an impartiality that may both surprise and disappoint some who post here. I cannot imagine senior ECHR judges clamouring to officiate this particular application, I wonder if any of them actual know anything about the case. Indeed, as an institution I see no evidence that ECHR has a publicly stated any concern with Italy’s judicial system more than any other member state.

I understand why some folks want to build this up to more than what it is; I wonder how many other applications were received on the same day as the caluunia application? I seriously doubt there are any back channel discussions going on or any sense of special treatment, as this would undermine the impartiality of the ECHR.

All the applications start out as "just another application".

I agree that the ECHR appears highly impartial, objective, and reasonable, and strongly interested in pursuing its duty to interpret the Convention. That is why it will find Amanda Knox's application on her conviction for calunnia of special interest. That is, of course, my opinion.

I am not aware that there are any "back channel communications" at the ECHR. There are "friendly settlement" negotiations which are similar to US "out of court settlement" negotiations; such negotiations are supervised by the Court and its Registry. Such negotiations are always private and confidential. The friendly settlements are provided for in the Convention itself.

Discussions here of possible friendly settlements are attempts to cover all possibilities of case resolution. If anyone posting here actually knew of such negotiations, they would be obligated not to discuss them in public.

I believe posters here generally realize that there are ECHR cases of greater severity of human rights damage that this case of a conviction for calunnia with alleged violations of Convention Articles 6.3d with 6.1, also with an alleged violation of Convention Article 3 (this is my reasonable estimate of the alleged claims in the application; there may be more). There are relatively recent applications against Russia, for example, relating to violations of Article 2, right to life, from Chechnya. There are 789 judgments relating to alleged violations of Article 2 in the HUDOC database.

 

[tsig]

Here is another statement from ECHR judges relating to Amanda's freedom of movement on Nov. 5/6, or at any time when the police were questioning or interrogating her.

This statement is from Creanga v Romania, but it is in a concurring opinion. Judge Raimondi is the judge from Italy and is one of the vice-presidents of the Court. From this concurring opinion, I believe he would judge Amanda's likely arguments as valid.

JOINT CONCURRING OPINION OF JUDGES
COSTA, GARLICKI, GYULUMYAN, MYJER,
HIRVELÄ, MALINVERNI, VUČINIĆ AND RAIMONDI


3. Firstly, the presence of the applicant in the NAP premises was a consequence of a summons to appear before the NAP in order to make statements for the purpose of a criminal investigation. While it may be true that, once he had entered the NAP premises, he might have had problems in trying to leave without permission, the same applies to many persons summoned to testify before a police authority, a prosecutor or a court. Such persons are under a duty to appear and to remain in place for such time as is necessary for their depositions to be taken, which means that they are not free to leave as long as investigative measures are under way (see paragraph 90 of the judgment). This limitation applies not only to persons summoned in their capacity as a “witness”, but also to those “suspects” (that is, persons already charged) who have not been detained on remand. Even if they may not be physically restrained to prevent them from leaving without permission, the law provides for sanctions, criminal as well as administrative, to secure their compliance. It is regarded as obvious, including under the Court’s case-law, that in the context of a criminal investigation, both the duty to appear and the duty not to leave before being permitted to do so are regarded as restrictions on freedom of movement.

Since Amanda walked in voluntarily none of his applies.

 

[Kauffer]

Since Amanda walked in voluntarily none of his applies.

What nonsense!
Ms Knox was taken into an interrogation and she was interrogated! It was an interrogation that had been planned.

 

[Bill Williams]

There are a lot of snide comments from the pro guilt side but something I simply do not understand them is this:

There are a huge number of problems involved in the interrogation from being at a time she would be exhausted, emotionally distraught (assuming innocence), feeling threatened*, in a language she partially understood, with a translator who was not really doing her job. There is something definitely wrong and I simply cannot understand why the pro guilt side cannot see this.

As well, if I was the police, I would make sure to record this interrogation because there are just so many potential pitfalls even if I normally do not. As I wrote previously, they could have simply brought a laptop into the interview room and recorded it that way. The pro guilt side never seems willing to at least state that they think a mistake was made.

*I work in Homeland Security port enforcement and I get nervous when I have to talk to cops.

Instead, the pro-guilt lobby has a narrative of how Knox took control of the interrogation.

If nothing else this goes against even translator. .... er, mediator Anna Donnino who described Knox as having a psychological shock.

Machiavelli was one of the first to advance the ridiculous sleep theory, that Knox was immune to the effects of sleep deprivation. Yet another Machiavelli comes along defending Donnino 's mediative abilities in pulling hidden memories from Knox.

Can't get the narrative straight.

 

[Bill Williams]

Since Amanda walked in voluntarily none of his applies.

The voluntary nature of her locomotion into the Questura is irrelevant. By ALL accounts she was doing homework, talking to Filomena and doing stretching exercises when Napoleoni told Ficarra to question Knox.

The questioning was initiated by the PLE. You are confusing "voluntary" with the issues around "spontaneous statements."

Which is the point of the pro-guilt lobby to confuse things as much as possible. Or to invent narratives which have no relation to what happened, but which buttress guilt.

 

[Chris_Halkides]

thoughts on DNA forensics

The following is an ECHR case with some relevance regarding evaluation of evidence. A woman leaving a party was allegedly raped by a group of men. The police were slow to investigate. There was DNA evidence of semen (spermatozoids) on her clothing. The police forensic expert wished to do a DNA analysis; for unclear reasons, the police investigator did not authorize the analysis and it was not done. The case dragged on with no resolution for a number of years. The woman applied to ECHR alleging violations of Convention Articles 3 and 8.

The relevance is that the ECHR recognizes that DNA analysis of semen in a rape case is critical, and will not find the refusal to test or report DNA profiles of the putative semen stain on the pillow in this case a reasonable or fair approach to evidence.

Numbers,

Nice find. I wanted to take a moment to discuss several issues related to DNA forensics that have been raised here. From my limited understanding of the role of the ECHR, I would say that point three is the most obvious problem for ILE.

One, in my experience a route of DNA contamination is not often known. It was known in the Adam Scott case, and a plausible guess can be made in the Lukis Anderson case. In many cases (Jane Durrua, Farah Jama, Jaidyn Leskie, and Jane Mixer) it is not known. Alibi evidence was ignored in at least one of these cases (in the case of Adam Scott, he claimed never to have visited the city in question, but I am not sure whether he could have documented that fact). Therefore, having an alibi is not a guarantee that one won't be convicted on the basis of DNA contamination (nor is it at all clear that having one is sufficient to overcome a demand for a route or mechanism of contamination). The results of negative controls were not disclosed in at least two of those cases (Scott and Mixer). Moreover, a positive result in a negative control does not indicate a route of contamination; therefore, it is unclear whether or not the standard suggested by Novelli (which is that a mechanism must be shown, if I understand his argument correctly) is met by a positive result in a negative control.

Two, the police committed several serious errors in collecting the evidence. There was no reason whatsoever for anyone to unpack and repackage the knife. Compounding the error, it was unwise to assign officer Gubbiotti to anything having to do with evidence collected at Sollecito’s flat, given the fact that he had been to the women’s flat on the same day. Reporting on the Patrick Waring case Estelle Blackburn wrote, “In court, police conceded they had not followed best practice in the case. Various officers said that the Central Park scene was left unguarded from 1.25am on the night, it was a week before it was searched, and the same officers had visited the homes of the girl and the accused which allowed for contamination of evidence.” What is not best practice in Perth is not best practice in Perugia.
Three, the failure to release the electronic data files (as well as other information, such as standard operating procedures) is a clear failure to apply the principle that discovery should be complete. I have asked a number of people about these files, and I have collected the words of several others. Everyone is clear as crystal on this question. DNA forensic expert Marc Taylor wrote, “We have discovered numerous manipulations of the data analysis or the actual physical analysis of the evidence by reviewing the electronic data…The electronic data is clearly the ‘best evidence’ in the legal system.”
Four, the paper I cited yesterday (Goray et al., 2012) indicates that cigarette butts can contaminate other items of evidence. I don't think that Raffaele's cigarette butt is a likely source of inadvertent contamination in this instance (deliberate tampering is another question altogether), but saliva is a relatively rich source of DNA.