Continuation Part 12: Amanda Knox/Raffaele Sollecito

[anglolawyer]

It's only "complicated" because of the antics of the police and prosecution, and the sheer volume of bogus claims on their part.

I agree. Lies massively complicate litigation.

 

[Bill Williams]

I agree. Lies massively complicate litigation.

And multiply exponentially lawyer's fees!

 

[Kauffer]

Given the third level trial scheduled for March 2015 and the ECHR application backlog, I am increasingly of the opinion that events will overtake the caluunia application. If as many here, seem to believe the Court of Cassation does confirm Raffaele and Amanda’s conviction then by the end of this year, they will be submitting their ECHR applications stemming for their conviction. Indeed, how would a calunnia decision in a year or two change Raffaele’s status?

Timing is important as you suggest. Cassation may confirm the murder convictions in March in which case both defences will file new applications with the ECHR in Strasbourg after Cassation's written report. The ECHR may well consider all the applications relating to the case together and possibly, urgently, soon after they are received so the callunia application will have no bearing on Mr Sollecito's status in that scenario.

Cases are not dealt with in the order they are received; they are now allocated priority categories based on certain criteria.

If whichever formation of Cassation hearing the case takes any notice of ECHR case law, it will not confirm the verdicts.

The most unpredictable territory is entered with confirmation of Nencini's verdict. Will Mr Sollecito go immediately to prison or will some procedure be utilised to stay the sentence until the ECHR makes a decision on the new applications? I doubt there is an answer available to that question now.

 

[Numbers]

Timing is important as you suggest. Cassation may confirm the murder convictions in March in which case both defences will file new applications with the ECHR in Strasbourg after Cassation's written report. The ECHR may well consider all the applications relating to the case together and possibly, urgently, soon after they are received so the callunia application will have no bearing on Mr Sollecito's status in that scenario.

Cases are not dealt with in the order they are received; they are now allocated priority categories based on certain criteria.

If whichever formation of Cassation hearing the case takes any notice of ECHR case law, it will not confirm the verdicts.

The most unpredictable territory is entered with confirmation of Nencini's verdict. Will Mr Sollecito go immediately to prison or will some procedure be utilised to stay the sentence until the ECHR makes a decision on the new applications? I doubt there is an answer available to that question now.

Yes, there is considerable uncertainty, and it is centered on the Italian CSC and possible Italian measures available after a conviction, should that occur.

 

[codyjuneau]

Actually it's the replies.

Why don't you reply to the direct questions you're asked?

.
There seems to be a kind of Catch 22 here.

Cody
.

 

[anglolawyer]

.
There seems to be a kind of Catch 22 here.

Cody
.

It's a very stupid kind of person who doesn't realise his limitations and a dishonest one who doesn't acknowledge them when the evidence is overwhelming.

 

[Samson]

I am to the ECHR what tsig and platonov are to the RS and AK case: a rank amateur with little command of specifics, but with a smell test.

There is no way I can evaluate the Salduz case as an intellectual exercise.

Shifting gears a bit, to the Nyki Kish case: after reading Justice Nordheimer's reason for judgement, as to why he convicted - I thought that his layout of the case could never survive appeal. Nordheimer starts by acknowledging the diffculty, and perhaps the impossibility, to locate a series of dots from a street melee which could convict anyone.

Yet Nordheimer proceeds to do exactly what he'd said was nearly impossible - lining up a row of dots for himself - some of which were complete inventions, and some of them reasonably should have been superseded by other dots - to draw an irresistible inference of her guilt.

It was smoke and mirrors that I became convinced would be overturned at appeal. Yet it turned out the appeal ruled on what was presented to them, and basically said that the defence brief did not challenge the core "dots" that Nordheimer had pulled out of the melee (or even out of thin air) to draw his inference. (No matter that the appeals court all-but said that a second person was also completely convictable, someone (IIRC) had been charged but released by Toronto Police.)

OK, that's about it for my arm-chair, Monday morning analysis - and I bet my friend anglolawyer has already spotted five or ten muffs on my part. I mean, despite the reputation he has elsewhere, he is, in fact, a real-live breathing lawyer.

Back to the purely intellectual exercise of parsing ECHR stuff.... I'm with tsig and platonov in spirit on this; all I have is the smell test, and I actually believe that no one ECHR bureaucrat will do 1/10th of the parsing of the AK calunnia case that Numbers has done on this thread. Then again, it is also flu season so who knows if my smeller is working properly....

My prediction is the ECHR will come up with something completely 90 degrees from anything any innocentisti or guilter here (or elsewhere) has said about it. On this I am channelling my inner-CoulsdonUK.

In the highlighted words you encapsulate the difference between Machiavelli and Numbers in their interpretations.
Machiavelli relies on the form underlying the Callunia case, and that it can be fine tuned to find a correct following of procedure by the Italians.
Numbers on the other hand is repeatedly pointing out that the ECHR are going to go directly to the substance of Amanda's case to assess the merits. Anyone here can choose for themselves what they regard as the true purpose of the ECHR in forecasting their findings, and I totally agree with Numbers, and without confirmation bias IMHO.

 

[codyjuneau]

The case of Dvorski v Croatia 25703/11 has been suggested as countering the application of Salduz to Amanda Knox's application to ECHR on her calunnia conviction.

First, it should be noted that Dvorski has been appealed to and will be heard by the Grand Chamber, which potentially could judge differently than has the Chamber. This, by the way is an indication of the importance of such Article 6.3c with Article 6.1 cases to the ECHR. However, even if the Grand Chamber judgment agrees with that of the Chamber on Dvorski, the cases are so different that the Dvorski ruling would not be relevant.

In the Dvorski case, the police prevented Dvorski, who was under arrest and to be interrogated, from meeting with his lawyer of choice, who was summoned to the police station by Dvorski's father. Instead, the police had Dvorski choose a lawyer from a list (which was not provided to the Court); this lawyer had previous association with the police and never accepted payment from Dvorski. Dvorski was interrogated and signed a confession. He was tried and renounced his confession, but was convicted. He did use his lawyer of choice during the trial.

The ECHR Chamber judgment found that there was no violation of Convention Article 6.3c with Article 6.1 in this case. The reasons in brief are:

1. There was substantial additional evidence presented at trial of Dvorski's guilt.

2. The Court did not find credible Dvorski's claim of coercion.

3. The confession was not the sole or decisive element in his conviction.

4. There was no indication of impropriety by the lawyer chosen from the police.

5. The Court saw no other indication of violation of rights regarding this area in the trial.

These above four statement may be contrasted with the circumstance of Amanda Knox's interrogation, false statement, and trial for calunnia.

1. The only evidence of the calunnia is her statement(s).

2. She claims the statement(s) were the product of coercion.

3. The statement(s) made by Amanda Knox were the sole evidence and decisive for the conviction of calunnia.

4. She did not have the counsel of a lawyer during her interrogation on Nov. 5/6, and the police should have provided her with a lawyer because:

4.1 She was under police interrogation as soon as she was asked to enter the interrogation room to answer questions.

4.2 She had made an incriminating statement by 1:45 am, stating that she had observed a murder.

5. There are other violations apparent in her trial; for example, the Hellmann court did not consider all her defenses, such as expert opinion testimony relating to suggestibility during interrogation, in the motivation report, and there are other indications of arbitrariness in the Hellmann court reasoning.



CASE OF DVORSKI v. CROATIA 25703/11 28/11/2013 {excerpts; bolding added}

106. Furthermore, the Court notes that the applicant’s confession was not the central platform of the prosecution’s case (see, by contrast, Magee v. the United Kingdom, no. 28135/95, § 45, ECHR 2000‑VI), and that the trial court relied on his statement interpreting it in the light of a complex body of evidence assessed by the court (compare Bykov, cited above, § 103). Specifically, when convicting the applicant, the trial court relied on the statements of a number of witnesses cross-examined during the trial, numerous expert reports and the records of the crime-scene investigation and searches and seizures, as well as relevant photographs and other physical evidence (see paragraphs 29-43 and 45-46 above). In addition, the trial court had at its disposal the confessions made by the applicant’s co-accused at the trial and neither the applicant nor his co-accused ever argued that any of their rights had been infringed when they had made those statements.

107. Therefore, although the applicant was not represented by a lawyer selected on the basis of a fully informed choice during the police questioning, the Court does not consider that this rendered the proceedings as a whole unfair (compare O’Kane v. the United Kingdom (dec.), no. 30550/96, 6 July 1999), since all the applicant’s rights were adequately secured during the trial and his confession was not the sole, let alone the decisive, evidence in the case and as such did not call into question his conviction and sentence (compare Gäfgen v. Germany [GC], no. 22978/05, § 187, ECHR 2010; and, by contrast, Martin v. Estonia, no. 35985/09, § 95-96, 30 May 2013).

108. Against the above background, and in view of the principle that the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1 of the Convention (see, for example, Zagorodniy, cited above, § 51) and the requirement for the Court to evaluate the fairness of the criminal proceedings as a whole (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011), the Court considers that it has not been shown that the applicant’s defence rights have been irretrievably prejudiced or that his right to a fair trial under Article 6 has been adversely affected (see, mutatis mutandis, Mamaç and Others v. Turkey, nos. 29486/95, 29487/95 and 29853/96, § 48, 20 April 2004, and Sarıkaya v. Turkey, no. 36115/97, § 67, 22 April 2004; and, by contrast, Martin, cited above, § 97).

109. Accordingly, in the light of these considerations, given the particular circumstances of the present case, the Court concludes that there has been no violation of Article 6 § 1 read in conjunction with § 3 (c) of the Convention .

.
I am not a lawyer but I feel Dvorski was treated unfairly because:

- There does not seem to be a valid reason to prevent him from being represented by his own lawyer.

- The lawyer he ended up with had close ties with the police which may have influenced his council whether he realized it or not.

- Most importantly, the lawyer he ended up with clearly represented him differently than his own lawyer would have, even allowing him to make a confession which his own lawyer had to belatedly retract. Confessions change police and forensic investigation prejudices, witness testimonies, and judge/jury open mindedness. Hence the possibility of a false confession affects his right to a fair trial. IMO.

I will be interested to see what the Grand Chamber rules.

Cody
.

 

[CoulsdonUK]

Timing is important as you suggest. Cassation may confirm the murder convictions in March in which case both defences will file new applications with the ECHR in Strasbourg after Cassation's written report. The ECHR may well consider all the applications relating to the case together and possibly, urgently, soon after they are received so the callunia application will have no bearing on Mr Sollecito's status in that scenario.

Cases are not dealt with in the order they are received; they are now allocated priority categories based on certain criteria.

Urgency? It’s not like Raffaele could be placed on death row. Amanda is across the pond and then some, so neither would be in imminent danger. I agree there would be a clear link between the caluunia application and any possible ECHR application stemming from a confirmation by the Italian Cassation, which is why I believe the caluunia application will be dead in the water.

If whichever formation of Cassation hearing the case takes any notice of ECHR case law, it will not confirm the verdicts.

Really! Okay then.

The most unpredictable territory is entered with confirmation of Nencini's verdict. Will Mr Sollecito go immediately to prison or will some procedure be utilised to stay the sentence until the ECHR makes a decision on the new applications? I doubt there is an answer available to that question now.

I have decided to use this month’s trial to gauge just where Raffaele is with the Italian judiciary, must admit I thought attacking the very institution that was deciding his fate was, provocative; to say the least.

 

[Desert Fox]

Urgency? It’s not like Raffaele could be placed on death row. Amanda is across the pond and then some, so neither would be in imminent danger. I agree there would be a clear link between the caluunia application and any possible ECHR application stemming from a confirmation by the Italian Cassation, which is why I believe the caluunia application will be dead in the water.

You are still talking about someone being imprisoned for a crime which he did not commit. Prison is not fun and Italian prisons are not well regarded in the European Union.

 

[Numbers]

.
I am not a lawyer but I feel Dvorski was treated unfairly because:

- There does not seem to be a valid reason to prevent him from being represented by his own lawyer.

- The lawyer he ended up with had close ties with the police which may have influenced his council whether he realized it or not.

- Most importantly, the lawyer he ended up with clearly represented him differently than his own lawyer would have, even allowing him to make a confession which his own lawyer had to belatedly retract. Confessions change police and forensic investigation prejudices, witness testimonies, and judge/jury open mindedness. Hence the possibility of a false confession affects his right to a fair trial. IMO.

I will be interested to see what the Grand Chamber rules.

Cody
.

Your points are quite relevant and may be the reason the ECHR allowed the appeal to the Grand Chamber.

Still, the issue of the alleged weight of evidence in the Dvorski case may make it different. Perhaps the Grand Chamber would rule there was unfairness and a violation of Article 6.3c (and thus maybe 6.1) in the Dvorski case regarding the choice of lawyer - to me it seems a very arbitrary decision by the police to deny him the lawyer chosen by his family.

If Dvorski's case results in a finding of a violation of Article 6.1, he would be entitled to a retrial in which his confession would be excluded as evidence, and the weight of the other evidence in that case would be considered.

 

[Numbers]

I am to the ECHR what tsig and platonov are to the RS and AK case: a rank amateur with little command of specifics, but with a smell test.

There is no way I can evaluate the Salduz case as an intellectual exercise.

Shifting gears a bit, to the Nyki Kish case: after reading Justice Nordheimer's reason for judgement, as to why he convicted - I thought that his layout of the case could never survive appeal. Nordheimer starts by acknowledging the diffculty, and perhaps the impossibility, to locate a series of dots from a street melee which could convict anyone.

Yet Nordheimer proceeds to do exactly what he'd said was nearly impossible - lining up a row of dots for himself - some of which were complete inventions, and some of them reasonably should have been superseded by other dots - to draw an irresistible inference of her guilt.

It was smoke and mirrors that I became convinced would be overturned at appeal. Yet it turned out the appeal ruled on what was presented to them, and basically said that the defence brief did not challenge the core "dots" that Nordheimer had pulled out of the melee (or even out of thin air) to draw his inference. (No matter that the appeals court all-but said that a second person was also completely convictable, someone (IIRC) had been charged but released by Toronto Police.)

OK, that's about it for my arm-chair, Monday morning analysis - and I bet my friend anglolawyer has already spotted five or ten muffs on my part. I mean, despite the reputation he has elsewhere, he is, in fact, a real-live breathing lawyer.

Back to the purely intellectual exercise of parsing ECHR stuff.... I'm with tsig and platonov in spirit on this; all I have is the smell test, and I actually believe that no one ECHR bureaucrat will do 1/10th of the parsing of the AK calunnia case that Numbers has done on this thread. Then again, it is also flu season so who knows if my smeller is working properly....

My prediction is the ECHR will come up with something completely 90 degrees from anything any innocentisti or guilter here (or elsewhere) has said about it. On this I am channelling my inner-CoulsdonUK.

In the highlighted words you encapsulate the difference between Machiavelli and Numbers in their interpretations.
Machiavelli relies on the form underlying the Callunia case, and that it can be fine tuned to find a correct following of procedure by the Italians.
Numbers on the other hand is repeatedly pointing out that the ECHR are going to go directly to the substance of Amanda's case to assess the merits. Anyone here can choose for themselves what they regard as the true purpose of the ECHR in forecasting their findings, and I totally agree with Numbers, and without confirmation bias IMHO.

{Highlighting added to quotes.}

1. Regarding Bill's comments, I believe he is doing the ECHR a disservice. I am confident that they will be thorough in their analysis. They have a reputation to maintain, in my opinion. Also, they have a large staff of lawyers (approximately 250, IIRC) and administrators (also about 250) that assists the judges. They are aware of the need to maintain consistency with precedent and have a Registry lawyer called a Jurisconsult (I assume with some staff) to assist in this. In comparison, I have my laptop and an internet link, and know how to conduct library searches (knowledge useful for using HUDOC). I am not a lawyer, but I am familiar with ideas about precedent and constitutional law, perhaps because such issues are frequently discussed in American media (not the gossip pages).

2. Furthermore, I cannot understand what a judgment "90 degrees from anything" would be; perhaps a limitation of my imagination. It is important to recall that ECHR is not an appeal court, and they will not be evaluating the guilt or innocence of anyone. They will be evaluating whether or not Italy violated certain provisions of the Convention regarding the trial and pre-trial procedures in the case of Amanda Knox and her conviction for calunnia.

They may or may not conclude that certain provisions of Italian procedure, law, or constitution are not consistent with the Convention.

Following the ECHR judgment, the responsibility for its enforcement (if there is a finding of any violation of the Convention) shifts to Italy, under the supervision of the Committee of Ministers of the Council of Europe.

3. Regarding the merits of the case, again it must be stressed that these merits relate to whether or not Italy maintained or violated the Convention and ECHR case-law.

 

[Welshman]

Ah...................................... "all the other evidence".

That is the core competency of the Pro--guilt PR lobby, the ability to reply to the latest collapse of an item of evidence with, "Yes, but then there's all the other evidence."

This is the reason why people post so much about this case - trying to chase all this "other evidence" that always recedes to the horizon when one sets sail and departs the comforts of shore to chase them.

This case is not complicated - really. Early on there was a PLE group who would simply go looking for shopkeepers, hobos, or old-deaf ladies above the cottage when other bits of evidence fell apart. I mean, if Stefanoni's work had been a slam dunk, why even risk bringing Curatolo into a courtroom?

I am a fundamentalist of Jeffery Toobin, CNN analyst. He said on the night of the Oct 2011 acquittals that the acquittals were based on there being no real evidence of their guilt. He then turned to talk about something else. Why? Because with no real evidence of their guilt, why would someone want to know what Curatolo thought about Oct 31.... er, Nov 1st, yes, it must have been Nov 1st. (Did they let Curatolo consult a calendar after refusing one to Raffaele?)

On then CNN-host Piers Morgan's show, where he appeared with Gloria Allred, Toobin was similarly brief. After Morgan had done his obligatory, "There's something Knox is not telling us," and Allred did her, "Italy's legal system precludes being able to do business in the country," Toobin piped up about the effects of the March 2013 reversal of the acquittals:

Paraphrase: "Look, let's cut to the chase. Amanda Knox is not going anywhere. My advice to her would be to forget about all this and settle into the rest of her life here in the USA." (He had no advice for Raffaele.)

My sense is that Toobin is tired of being taken down the road of cartwheels, sex-on-a-train, calls to mom at noon, arguments over door-locking habits, staged break-ins which obviously were not, phantom knives picked out of drawers because they were too clean (yet still yielded phantom DNA "evidence"!!!).....

Toobin is full value for cutting to the chase about the obviousness of this case, and its relative simplicity. Part of the simplicity is that there's someone out there in Internet-land (as well as in the Italian judiciary through harmonizing it with the Guede-process) wanting to make this horribly straightforward murder (committed by Rudy Guede) into something else.

Heck, Barbie Nadeau made a lot of money selling the rights to her book to Michael Winterbottom based on her refrain, "Knox knows something she's not telling us," only to have Winterbottom reverse field on her and make her out to be a tabloid hack and a slut. (BTW - "The Face of an Angel" is now slated for general release in June 2015. I wonder if it will survive the weekend when the box-office is picketed by guilters!)

This is not a complex case.... ah, but there's "all the other evidence!"

If the case was such a slam dunk why did the the prosecution have to rely on such dubious evidence as the testimony of Curalto? If Curalto was telling the truth, he gives Amanda and Raffaele an alibi for the time of the murder. If the prosecution had such a slam dunk case, why did they have to resort to using evidence which undermined their own case?

 

[codyjuneau]

Timing is important as you suggest. Cassation may confirm the murder convictions in March in which case both defences will file new applications with the ECHR in Strasbourg after Cassation's written report. The ECHR may well consider all the applications relating to the case together and possibly, urgently, soon after they are received so the callunia application will have no bearing on Mr Sollecito's status in that scenario.

Cases are not dealt with in the order they are received; they are now allocated priority categories based on certain criteria.

Urgency? It’s not like Raffaele could be placed on death row. Amanda is across the pond and then some, so neither would be in imminent danger. I agree there would be a clear link between the caluunia application and any possible ECHR application stemming from a confirmation by the Italian Cassation, which is why I believe the caluunia application will be dead in the water.

.
Maybe you should be his stand in for the undeserved prison time. It is apparently trivial for you.

Cody
.

 

[Planigale]

I think ECHR will take Knox's case because it does raise a generic issue they will wish to address. Mignini decided to restrict Sollecito's and Knox's access to lawyers until immediately before their first court appearance. Mach tells us that Mignini is allowed to do this under Italian law, I believe him.

The issue is that under ECHR rulings, this should not be permissable, it is an example of how Italy has not integrated European Human Rights into the Italian legal system. I think their view will be that although the PM can restrict access to a lawyer for upto 48 hours, this should be exceptional, not routine or arbitrary. In the UK a police officer of superintendent rank or above can restrict access to lawyer of a suspect, but the grounds are restricted, and the basis for any such decision has to be documented, and can be subsequently challenged.

So I think that the ECHR will rule that Italy has to restrict the grounds on which the PM can restrict access to a lawyer of a suspect, and that the grounds should be documented. This was not done. What I am uncertain of is when they will say that Knox became entitled to a lawyer. The ECHR seem to take a pragmatic approach, that the circumstances define the right not an arbitrary documentation. In the latter case, this enables investigatory authorities lee way to exploit legal loop holes. ECHR seem to say that it is not just to use a legal loop hole to evade access to counsel for a suspect.

I am certain they will take the view that Mignini as a lawyer should have recognised Knox's right to a lawyer prior to his taking a 'spontaneous' statement. I am less certain of whether they will take the view that prior to the first statement she became a suspect. My personal view is this certainly became true when she made a verbal statement and prior to her first written statement.

 

[Kauffer]

Urgency? It’s not like Raffaele could be placed on death row. Amanda is across the pond and then some, so neither would be in imminent danger. I agree there would be a clear link between the caluunia application and any possible ECHR application stemming from a confirmation by the Italian Cassation, which is why I believe the caluunia application will be dead in the water.

Well I guess if you were in prison with an application in front of the ECHR with well founded claims of multiple human rights violations you'd probably want them to get on with it. And indeed they may well put it in Cat 1.

I have no idea why you would think the callunia application would be "dead in the water". You think the court would just shelve it and forget about it?

 

[codyjuneau]

.
I am not a lawyer but I feel Dvorski was treated unfairly because:

- There does not seem to be a valid reason to prevent him from being represented by his own lawyer.

- The lawyer he ended up with had close ties with the police which may have influenced his council whether he realized it or not.

- Most importantly, the lawyer he ended up with clearly represented him differently than his own lawyer would have, even allowing him to make a confession which his own lawyer had to belatedly retract. Confessions change police and forensic investigation prejudices, witness testimonies, and judge/jury open mindedness. Hence the possibility of a false confession affects his right to a fair trial. IMO.

I will be interested to see what the Grand Chamber rules.

Cody
.

Your points are quite relevant and may be the reason the ECHR allowed the appeal to the Grand Chamber.

Still, the issue of the alleged weight of evidence in the Dvorski case may make it different. Perhaps the Grand Chamber would rule there was unfairness and a violation of Article 6.3c (and thus maybe 6.1) in the Dvorski case regarding the choice of lawyer - to me it seems a very arbitrary decision by the police to deny him the lawyer chosen by his family.

If Dvorski's case results in a finding of a violation of Article 6.1, he would be entitled to a retrial in which his confession would be excluded as evidence, and the weight of the other evidence in that case would be considered.

.
Hi Numbers, great research you are doing.

I don't think one can easily estimate how much a confession influences a case.

Look at the prosecution team in this case, everything they did after Nov 7 was to support the quasi incriminating statement, later recanted, that they had extracted from Amanda under duress. Months later witnesses changed their stories to comply with what they thought was a slam dunk case of guilt.

Guilters everywhere cannot conceive of an innocent person making an incorrect statement to the police under any circumstance and so they cling to their beliefs despite the overwhelming evidence that Rudy broke into the cottage and ended up murdering Meredith when she came home.

It is hard to unpoison people that have drunk from a poisoned well.

Cody
.

 

[Desert Fox]

I found another interesting case of DNA contamination. . . .
http://dcourier.com/main.asp?SectionID=1&subsectionID=1086&articleID=91964

Basically, her nail clipping were contaminated from the previous autopsy.

 

[Kauffer]

I think ECHR will take Knox's case because it does raise a generic issue they will wish to address. Mignini decided to restrict Sollecito's and Knox's access to lawyers until immediately before their first court appearance. Mach tells us that Mignini is allowed to do this under Italian law, I believe him.

The issue is that under ECHR rulings, this should not be permissable, it is an example of how Italy has not integrated European Human Rights into the Italian legal system. I think their view will be that although the PM can restrict access to a lawyer for upto 48 hours, this should be exceptional, not routine or arbitrary. In the UK a police officer of superintendent rank or above can restrict access to lawyer of a suspect, but the grounds are restricted, and the basis for any such decision has to be documented, and can be subsequently challenged.

So I think that the ECHR will rule that Italy has to restrict the grounds on which the PM can restrict access to a lawyer of a suspect, and that the grounds should be documented. This was not done. What I am uncertain of is when they will say that Knox became entitled to a lawyer. The ECHR seem to take a pragmatic approach, that the circumstances define the right not an arbitrary documentation. In the latter case, this enables investigatory authorities lee way to exploit legal loop holes. ECHR seem to say that it is not just to use a legal loop hole to evade access to counsel for a suspect.

I am certain they will take the view that Mignini as a lawyer should have recognised Knox's right to a lawyer prior to his taking a 'spontaneous' statement. I am less certain of whether they will take the view that prior to the first statement she became a suspect. My personal view is this certainly became true when she made a verbal statement and prior to her first written statement.

The real issue with the denial of counsel is the disadvantage that is caused. Where the consequences of not having counsel are mitigated later on in the proceedings, this will have an effect on the measure of disadvantage suffered. In this case Ms Knox's position went from bad to worse as a result of being denied counsel and she was eventually convicted for statements she made during this time.

It is somewhat misleading to consider the events of 5th/6th November in isolation from what came before. Ms Knox was a suspect, a person under investigation according to the court record. And her phone was bugged. So there is no substance to any other claim about Ms Knox's real status on the 5th. She's a suspect at the beginning of her interrogation.

The question of the 48 hour post arrest denial of counsel is rather interesting. Mr Sollecito claims that this is subject to an application to a judge and he quotes Mignini saying he had "imparted" an application; the judge, Matteini, said she had not seen it. Nevertheless, you are right. This extended denial of counsel was unjustified and an abuse of power.

 

[Numbers]

Urgency? It’s not like Raffaele could be placed on death row. Amanda is across the pond and then some, so neither would be in imminent danger. I agree there would be a clear link between the caluunia application and any possible ECHR application stemming from a confirmation by the Italian Cassation, which is why I believe the caluunia application will be dead in the water.




Really! Okay then.




I have decided to use this month’s trial to gauge just where Raffaele is with the Italian judiciary, must admit I thought attacking the very institution that was deciding his fate was, provocative; to say the least.

Well I guess if you were in prison with an application in front of the ECHR with well founded claims of multiple human rights violations you'd probably want them to get on with it. And indeed they may well put it in Cat 1.

I have no idea why you would think the callunia application would be "dead in the water". You think the court would just shelve it and forget about it?

{Highlighting added to quotes.}

I also cannot understand why anyone would believe that actions by the CSC would influence actions on a separate but related case in the ECHR. Does anyone believe that a respondent State can write to or e-mail the ECHR and ask for them to delay their process so that a possible miscarriage of justice and violation of the Convention is undisturbed by the ECHR?

The suggested possibility that ECHR may slow or stop its functions to allow a respondent State function to somehow proceed undisturbed is ludicrous, IMO.

On the other hand, I am not confident that the ECHR would respond in a manner most would deem quickly to the imprisonment of a person claiming actual innocence. However, in at least one case, DEL RÍO PRADA v. SPAIN
42750/09 21/10/2013, the Court did order the immediate release of a prisoner. The applicant had already completed her prison term based upon calculations for her behavior and other mitigations, but the State changed its rules prior to her release, and recalculated her term to lengthen it. The ECHR found this a violation of the Convention. Thus, under certain circumstances the ECHR will order the immediate release of a prisoner if it is convinced of a violation of the Convention. The definition of the circumstances may not be clearly or fully developed in the current ECHR case-law.

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139. The Grand Chamber agrees with the Chamber’s finding and considers that the present case belongs to this last-mentioned category. Having regard to the particular circumstances of the case and to the urgent need to put an end to the violations of the Convention it has found, it considers it incumbent on the respondent State to ensure that the applicant is released at the earliest possible date.