Continuation Part 12: Amanda Knox/Raffaele Sollecito

[Numbers]

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.

{Highlighting added to quote.}

The formal definition of when Ms. Knox became a "suspect" may not be as relevant as simply the fact that she was being interrogated without a lawyer. The planning for the interrogation by the police, and the fact that Knox was "invited" into an interrogation room to answer a few questions and clear up some alleged "contradictions" in her previous statements to police means that she was the equivalent of a suspect, with no right to leave the situation without legal consequences. Judge Raimondi and 7 other judges of the ECHR have pointed out this obligation of a witness or suspect to obey police and not leave in a concurring opinion in another case which I have posted, CREANGĂ v. ROMANIA 29226/03 23/02/2012.

 

[carbonjam72]

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

Cody
.

Thank you for writing this, seeing it in print gives it weight. It needs to be said, often, and heard.

 

[carbonjam72]

Narducci!

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.

I've been becoming more and more aware of this particular issue, that time and again, Mignini seems to have invoked these types of special terrorism/mafia laws to restrict the rights of defendants, such as Amanda, Raf and Spezi.

What I'm realizing, is that Mignini's belief that a satanic sect is responsible for the MOnster of Florence crimes, and the death of Dr Narducci, is what justifies these actions in Mignini's view.

His satanic sect, in his own mind anyway, is the equivalent of the mafia or a "secret society", and that's why Mignini thinks these types of restrictive measures are appropriate.

The fact that senior Mignini is a certifiable madman doesn't enter into it.

So in some sense, testing the application of these laws against Amanda in the venue of the ECHR, is really a test of the validity of Mignini's Narducci trail investigations.

That's how it looks from here.

 

[Bill Williams]

{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.

Perhaps. But it is weird to read the motivation reports from Italy with regard to the horrible murder. It is a disservice to the Italian judiciary to accuse them of what they've done - yet it is what they have done!

Why is ECHR immune, really, from going sideways?

 

[Numbers]

Perhaps. But it is weird to read the motivation reports from Italy with regard to the horrible murder. It is a disservice to the Italian judiciary to accuse them of what they've done - yet it is what they have done!

Why is ECHR immune, really, from going sideways?

Because it's not an Italian court.
Because its judges have affirmed that they will act independently and fairly, in accordance with the Convention.
Because it judges the actions of the respondent State, not the guilt or innocence of the applicant.
Because it has a responsibility to judge fairly.
Because, to my knowledge, it has not been criticized for unfairness or arbitrary judgment.

Although perhaps I am biased by the concept of "civic virtue" as voiced, for example, by the leaders of the American Revolution.

ETA: What would a "sideways" judgment say?

The question before the Court will be: Has Italy violated Amanda Knox's human rights under the Convention, Article 6.1, to have a fair trial regarding the charge of calunnia, for which she was convicted solely based upon statements she made while being interrogated without a lawyer, under alleged coercion, which is a violation of Convention Article 6.3c, even without the allegation of coercion?

(Questioning by police without a lawyer is permitted under very special circumstances, such as credible clear and present danger of mass casualties as from terrorism.)

 

[Bill Williams]

Because it's not an Italian court.
Because its judges have affirmed that they will act independently and fairly, in accordance with the Convention.
Because it judges the actions of the respondent State, not the guilt or innocence of the applicant.
Because it has a responsibility to judge fairly.
Because, to my knowledge, it has not been criticized for unfairness or arbitrary judgment.

Although perhaps I am biased by the concept of "civic virtue" as voiced, for example, by the leaders of the American Revolution.

ETA: What would a "sideways" judgment say?

The question before the Court will be: Has Italy violated Amanda Knox's human rights under the Convention, Article 6.1, to have a fair trial regarding the charge of calunnia, for which she was convicted solely based upon statements she made while being interrogated without a lawyer, under alleged coercion, which is a violation of Convention Article 6.3c, even without the allegation of coercion?

(Questioning by police without a lawyer is permitted under very special circumstances, such as credible clear and present danger of mass casualties as from terrorism.)

I truly hope you're not disappointed.

 

[Numbers]

I truly hope you're not disappointed.

Bill,

I would be disappointed if the ECHR did not find that Italy had violated Amanda Knox's rights to a fair trial with respect to her conviction for calunnia.

But you have not answered my question as to what would constitute a sideways judgment.

Can the question that I posed, which would be what the Court would consider (I believe we are all agreed on that), be answered differently than "yes" or "no"?

I haven't seen any judgment from the Court where they have either held that a Convention right was violated or it was not violated, for application claims that are decided as "admissible".

 

[Bill Williams]

Bill,

I would be disappointed if the ECHR did not find that Italy had violated Amanda Knox's rights to a fair trial with respect to her conviction for calunnia.

But you have not answered my question as to what would constitute a sideways judgment.
Can the question that I posed, which would be what the Court would consider (I believe we are all agreed on that), be answered differently than "yes" or "no"?

I haven't seen any judgment from the Court where they have either held that a Convention right was violated or it was not violated, for application claims that are decided as "admissible".

True. I am not sure anyone can.

Did anyone in a million years dream that Massei would convict them based on what he heard from Mignini? For heaven's sake, even Barbie Nadeau called the prosecution case weak in 2009.

By it's very nature , who can really tell in this case. Did anyone in a million years anticipate the **reasons** the ISC ruled as they did in 2013? I know that the pro-guilt lobby thought it logical that Chieffi et al. ruled like they did... but did the pro-guilt lobby realize that Chieffi would say that the DNA stuff presented by C-V had to be reversed, lest all convictions based on DNA since 1986 be potentially at risk?

I have not a clue what sideways looks like.

 

[Desert Fox]

True. I am not sure anyone can.

Did anyone in a million years dream that Massei would convict them based on what he heard from Mignini? For heaven's sake, even Barbie Nadeau called the prosecution case weak in 2009.

By it's very nature , who can really tell in this case. Did anyone in a million years anticipate the **reasons** the ISC ruled as they did in 2013? I know that the pro-guilt lobby thought it logical that Chieffi et al. ruled like they did... but did the pro-guilt lobby realize that Chieffi would say that the DNA stuff presented by C-V had to be reversed, lest all convictions based on DNA since 1986 be potentially at risk?

I have not a clue what sideways looks like.

When gay marriage gets in front of the US Supreme Court, do you know how Kennedy will most likely rule? You can often tell the mood of a court by previous decisions. The Italian Supreme Court is, to be blunt, know for simply making bad decisions.

 

[Numbers]

Partly in response to Bill's raising the issue of "sideways" judgments, here is an ECHR judgment presented as an example of the "bottom line" of a judgment. Here, some of the claims of the applicant were accepted while others were declared inadmissible (not well founded). In other cases, claims are sometimes judged as not being in violation, for example in the Chamber judgment of Dvorski v Croatia.

BTW, the applicant in this case requested 150,000 EUR non-pecuniary just satisfaction for 19 months of imprisonment that was contrary to his Convention rights under Article 5, but was awarded only 4,000 EUR. Small monetary awards (especially compared to US jury trial awards) are not unusual in ECHR cases.


FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares admissible the complaints concerning (a) the applicant not being promptly brought before a judge or other officer authorised by law to exercise judicial power; (b) the justification for his deprivation of liberty; and (c) the alleged lack of fairness of the appeal proceedings in response to the applicant's appeals against his deprivation of liberty;

2. Declares the remainder of the application inadmissible;

3. Holds that there has been a violation of Article 5 § 3 of the Convention on account of the applicant not having been promptly brought before a judge or other officer authorised by law to exercise judicial power;

4. Holds that there has been a violation of Article 5 § 3 of the Convention on account of the authorities' failure to justify the applicant's continued detention;

5. Holds that there has been a violation of Article 5 § 4 of the Convention on account of the applicant having been denied the right to have the continued lawfulness of his detention reviewed effectively by a court;

6. Holds
(a) that the respondent State is to pay to the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs at the rate applicable on the date of settlement:
(i) EUR 4,000 (four thousand euros) in respect of non-pecuniary damage;
(ii) EUR 2,000 (two thousand euros) in respect of costs and expenses;
(iii) any tax that may be chargeable on the above amounts;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

7. Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 26 October 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

ETA: CASE OF DANOV v. BULGARIA 56796/00 26/10/2006
ETA2: In this case, in the "For these reasons" summary "inadmissible" and "not well founded" are equivalent, based on the full text of the judgment, to no violation.

 

[Chris_Halkides]

Kennedy murder and DNA contamination

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.

Desert Fox,

I was unaware of this case. It is not entirely clear what happened; why would Birman's nails have been clipped (he died when an arterial graft failed)/ However, I grant that autopsies have been reported to be a problem with respect to DNA contamination. According to this link, "It was possible, Keene said, that her hand came into contact with "residual blood on the autopsy table," but not, he said, from fingernail clippers, which he said were cleaned between exams.

Keene also testified about the death of Jim Knapp, who had been living in Kennedy's guesthouse. He ruled it a suicide, saying Knapp had shot himself, but Parzych asked about photos that showed bullet holes in the windows of another room, a chair on a bed, upset coffee mugs, and a telephone on the floor."

It seems as if there are two contradictory things being asserted with respect to the clippers. BTW, See also this link for a little bit of conversation about DNA and gloves. It is interesting that the only time the prosecution is willing to acknowledge that contamination happens in when that argument is damaging to the defendant's case.

From the New Scientist link above, "Peter Gill, former principal scientist at the UK's Forensic Science Service, now at Oslo University in Norway, says scientists should not dismiss the possibility of contamination, particularly where tiny amounts of DNA are concerned."

 

[Samson]

Popper from PMF posted this, of which I was totally unaware. I find it difficult to take at face value though, as in a secret ballot for example. If any one has more information, let us know.

it is 7 years since the terrible murder of Meredith but groupies have not yet grasped the simple fact a Court of Assise, the Court that in Italy generally decides on murders, is composed by 8 people, 2 professional judges and 6 lay/popular judges. Majority wins. With parity of votes the defendant wins. Each vote counts one and voting for a verdict starts from lay judges, from the youngest to the oldest, professional judges last. An acquittal is reached with 4 votes, so if the first 4 lay judges vote for acquittal the game is over. The vote of the 2 remaining lay judges and the 2 professional judges does not count.

 

[Numbers]

Popper from PMF posted this, of which I was totally unaware. I find it difficult to take at face value though, as in a secret ballot for example. If any one has more information, let us know.

it is 7 years since the terrible murder of Meredith but groupies have not yet grasped the simple fact a Court of Assise, the Court that in Italy generally decides on murders, is composed by 8 people, 2 professional judges and 6 lay/popular judges. Majority wins. With parity of votes the defendant wins. Each vote counts one and voting for a verdict starts from lay judges, from the youngest to the oldest, professional judges last. An acquittal is reached with 4 votes, so if the first 4 lay judges vote for acquittal the game is over. The vote of the 2 remaining lay judges and the 2 professional judges does not count.

1. I don't believe that the votes of the lay judges are not heavily influenced by the opinions that may have been expressed by the professional judges.

2. If the judgment is a violation of Italian law, constitution, or the European Convention of Human Rights, why should the order of voting or how many voted to back the convicting verdict matter?

3. In a US jury trial for serious crimes (felonies) generally there are twelve jurors (could vary depending on state law) and the jurors must be unanimous for a guilty verdict. Yet juries do make mistakes resulting in wrongful convictions, often due to factors in the trial (perjury, misidentification, misleading or false forensics, false confession, official misconduct).

 

[Numbers]

True. I am not sure anyone can.

Did anyone in a million years dream that Massei would convict them based on what he heard from Mignini? For heaven's sake, even Barbie Nadeau called the prosecution case weak in 2009.

By it's very nature , who can really tell in this case. Did anyone in a million years anticipate the **reasons** the ISC ruled as they did in 2013? I know that the pro-guilt lobby thought it logical that Chieffi et al. ruled like they did... but did the pro-guilt lobby realize that Chieffi would say that the DNA stuff presented by C-V had to be reversed, lest all convictions based on DNA since 1986 be potentially at risk?

I have not a clue what sideways looks like.

{Highlighting added to quote.}

So what you are apparently saying is that the Chamber verdict could be "No violation" or "Inadmissible" (with implication or statement that there was no violation).

If that were the judgment, there could be an appeal for a Grand Chamber hearing. But practically, there is no compromise or sideways judgment, one's rights cannot be half-violated.

 

[Desert Fox]

Desert Fox,

I was unaware of this case. It is not entirely clear what happened; why would Birman's nails have been clipped (he died when an arterial graft failed). However, I grant that autopsies have been reported to be a problem with respect to DNA contamination. According to this link, "It was possible, Keene said, that her hand came into contact with "residual blood on the autopsy table," but not, he said, from fingernail clippers, which he said were cleaned between exams.

Keene also testified about the death of Jim Knapp, who had been living in Kennedy's guesthouse. He ruled it a suicide, saying Knapp had shot himself, but Parzych asked about photos that showed bullet holes in the windows of another room, a chair on a bed, upset coffee mugs, and a telephone on the floor."

See also this link for a little bit of conversation about DNA and gloves. It is interesting that the only time the prosecution is willing to acknowledge that contamination happens in when that argument is damaging to the defendant's case.

From the New Scientist link above, "Peter Gill, former principal scientist at the UK's Forensic Science Service, now at Oslo University in Norway, says scientists should not dismiss the possibility of contamination, particularly where tiny amounts of DNA are concerned."

I was about to start a response but noted that you edited your response so needed to rework it a bit.

I don't feel able to judge DeMocker's guilt or innocence although I think the prosecution appear to at least be able to argue it with a straight face unlike with Amanda and Raff.

You bring up an important point that the prosecution accept contamination when it is convenient to them and not when it is not. I think though they can be used as a weapon for the defense. If I was arguing for the defense, I would want a convenient list of cases where we know that DNA found is contamination.

It is only when I see cases

 

[Bill Williams]

{Highlighting added to quote.}

So what you are apparently saying is that the Chamber verdict could be "No violation" or "Inadmissible" (with implication or statement that there was no violation).

If that were the judgment, there could be an appeal for a Grand Chamber hearing. But practically, there is no compromise or sideways judgment, one's rights cannot be half-violated.

Probably. Do they provide the equivalent of a "motivations report"? Does this, if done, provide further direction than a trinary choice?

 

[Numbers]

Probably. Do they provide the equivalent of a "motivations report"? Does this, if done, provide further direction than a trinary choice?

Bill,
No offense, but where have you been the last few hundred posts?

I've posted (too extensively) from the ECHR judgments. They are terse, often perhaps 2 or 3 pages long, probably few are longer than 10 pages. Each paragraph is numbered. They follow a rigid but useful format - it may remind one of science lab reports one did in high school, or scientific papers, in that respect.

For example, the Grand Chamber judgment in Salduz v Turkey consists of 80 numbered paragraphs, followed by the "For these reasons" summing up, which consists of 4 numbered sentences, followed by the signatures and the list of concurring opinions (there were no dissenting opinions in that case).

Here is the structure of the judgment report (for years they've followed the same format):

Title page (Case Name, Application Number, Document type (Judgment, in this case), Court Location (= Strasbourg), Date of Judgment, Effective Date (for Chamber cases; there are 3 months to appeal to the Grand Chamber)

List of names of all judges sitting on the case and of the Jurisconsult

Procedure

The Facts

1. Circumstances of the Case (summarizes the agreed upon facts from the applicant and respondent State; may include their different allegations also)

2. Relevant Law and Practice (includes relevant respondent State law and international law and reports from international organizations such as CoE, CPT, and the UN, for example)

The Law (meaning the Convention and ECHR case-law)

I. Alleged Violations of the Convention

1. Alleged violation #1 of the Convention (for example, Violation of Article 6) {The text will use letters "A" and "B" for my "1" and "2" here.}

1.1 Statement of the relevant wording of the Convention the applicant is relying on in his/her claim and a short statement that the applicant claims that there has been a violation

1.2 (Chamber judgment is summarized, if this is a Grand Chamber appeal; otherwise the next item is 1.2)

1.3 The parties' submissions

1.3.1 The applicant

1.3.2 The Government

1.4 The Court's assessment

1.4.1 The general principles applicable in this case (Convention language, case-law language, with relevant citations; this can take on the appearance of "boiler plate" because many cases have the same applicable general principles)

1.4.2 Application of the above principles to the present case (This is where the Court exercises judgment; exactly how do the principles of 1.4.1 apply to the case. The logic the Court uses, as far as I have read, is always tight and clear. No speculation is allowed, but inferences may be drawn ("My dog ate my official records, your Honor", is not accepted.)

1.4.3 Conclusion (Violation of Convention Article X, or No Violation of Convention Article X, or Inadmissible because (for example) there really wasn't a strong enough case for finding a violation, or sometimes the claim is subsumed under another claim or is redundant)

2. Alleged Violation #2 of the Convention (repeat the pattern until all claims are accounted for)

.........

II Application of Article 41 of the Convention (The wording of Art. 41 is stated; it is about giving "just satisfaction" to the applicant whose rights have been violated.)

1. Damages

1.1 The parties submissions
1.1.1 The applicant's claims for pecuniary and non-pecuniary awards
1.1.2 The Government's counter-claims
1.1.3 (The Chamber's judgment, if this is an appeal; otherwise, the next item is here.)
1.1.4 The Court's assessment (applicants are typically awarded less than they seek)

2. Costs and expenses (same structure as for damages)

3. Default interest

For These Reasons (A brief summary of the judgment, for each claim, including admissibility, inadmissibility, violations, and no violations, and awards of just satisfaction, costs/expenses, and interest.)

I hope this helps explain the ECHR judgments. Just a few pages long, to the point, crowded with citations. No 400 pagers, no wild leaps of "logic", no arbitrary speculations. So sorry if reading long if absurd motivation reports helps you get to sleep at night, this is all the ECHR has to offer.

ETA: To be clear, it is the responsibility of the respondent State to supply all official records. The applicant is (or may be) expected to supply them insofar as he/she has been given such records. It is a violation of the Convention for a State or agent of a State to interfere with any submission to the ECHR.

 

[Numbers]

To help in understanding how a judgment is worded, here are three important paragraphs from the Grand Chamber judgment of Salduz 36391/02 27/11/2008. The "Court" is the ECHR. Law no. 3842 is a Turkish law that forbade defendants brought to the Turkish State Security Court from having a lawyer until after being processed through the investigating judge. This Turkish legal practice is criticized as "falls short of the requirements of Article 6" at the end of paragraph 56.

Paragraph 57 should be read carefully. It notes, among other factors, that the domestic court relied upon the confession, which the applicant denied at trial and during appeal, to convict him, without formulating an opinion on the admissibility of the confession in the face of the applicant's denial of it. Furthermore, the domestic court used exculpatory evidence relating to handwriting on a banner as inculpatory. Also, the co-defendants who had all issued statements against the applicant all retracted their testimony in court.

Paragraph 58 states the Court's view that: the applicant was undoubtedly affected by the restrictions on his access to a lawyer in that his statement to the police was used for his conviction. Neither the assistance provided subsequently by a lawyer nor the adversarial nature of the ensuing proceedings could cure the defects which had occurred during police custody.

Paragraph 62 states: In sum, even though the applicant had the opportunity to challenge the evidence against him at the trial and subsequently on appeal, the absence of a lawyer while he was in police custody irretrievably affected his defence rights.

And in conclusion (Paragraph 63): In view of the above, the Court concludes that there has been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 in the present case.

I hope these excerpts from Salduz help in understanding the ECHR judgment form and substance. It is similar to an opinion that a US appeal court might issue in terms of terseness, focus, and attention to case-law citation. It differs, in a positive sense, IMO, from the literary standards and legal quality of some of the Italian motivation reports we have seen in this case.

Excerpts, from Salduz v Turkey, Grand Chamber judgment:

(b) Application of the above principles to the present case

56. In the present case, the applicant’s right of access to a lawyer was restricted during his police custody, pursuant to section 31 of Law no. 3842, as he was accused of committing an offence falling within the jurisdiction of the State Security Courts. As a result, he did not have access to a lawyer when he made his statements to the police, the public prosecutor and the investigating judge respectively. Thus, no other justification was given for denying the applicant access to a lawyer than the fact that this was provided for on a systematic basis by the relevant legal provisions. As such, this already falls short of the requirements of Article 6 in this respect, as set out at paragraph 52 above.

57. The Court further observes that the applicant had access to a lawyer following his detention on remand. During the ensuing criminal proceedings, he was also able to call witnesses on his behalf and had the possibility of challenging the prosecution’s arguments. It is also noted that the applicant repeatedly denied the content of his statement to the police, both at the trial and on appeal. However, as is apparent from the case file, the investigation had in large part been completed before the applicant appeared before the investigating judge on 1 June 2001. Moreover, not only did the İzmir State Security Court not take a stance on the admissibility of the applicant’s statements made in police custody before going on to examine the merits of the case, it also used the statement to the police as the main evidence on which to convict him, despite his denial of its accuracy (see paragraph 23 above). In this connection, the Court observes that in convicting the applicant, the İzmir State Security Court in fact used the evidence before it to confirm the applicant’s statement to the police. This evidence included the expert’s report dated 1 June 2001 and the statements of the other accused to the police and the public prosecutor. In this respect, however, the Court finds it striking that the expert’s report mentioned in the judgment of the first-instance court was in favour of the applicant, as it stated that it could not be established whether the handwriting on the banner matched the applicant’s (see paragraph 15 above). It is also significant that all the co-defendants, who had testified against the applicant in their statements to the police and the public prosecutor, retracted their statements at the trial and denied having participated in the demonstration.

58. Thus, in the present case, the applicant was undoubtedly affected by the restrictions on his access to a lawyer in that his statement to the police was used for his conviction. Neither the assistance provided subsequently by a lawyer nor the adversarial nature of the ensuing proceedings could cure the defects which had occurred during police custody. However, it is not for the Court to speculate on the impact which the applicant’s access to a lawyer during police custody would have had on the ensuing proceedings.

59. The Court further notes that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial (see Kwiatkowska v. Italy (dec.), no. 52868/99, 30 November 2000). However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006‑II; Kolu, cited above, § 53; and Colozza v. Italy, 12 February 1985, § 28, Series A no. 89). Thus, in the present case, no reliance can be placed on the assertion in the form stating his rights that the applicant had been reminded of his right to remain silent (see paragraph 14 above).

60. Finally, the Court notes that one of the specific elements of the instant case was the applicant’s age. Having regard to a significant number of relevant international law materials concerning legal assistance to minors in police custody (see paragraphs 32‑36 above), the Court stresses the fundamental importance of providing access to a lawyer where the person in custody is a minor.

61. Still, in the present case, as explained above, the restriction imposed on the right of access to a lawyer was systematic and applied to anyone held in police custody, regardless of his or her age, in connection with an offence falling under the jurisdiction of the State Security Courts.

62. In sum, even though the applicant had the opportunity to challenge the evidence against him at the trial and subsequently on appeal, the absence of a lawyer while he was in police custody irretrievably affected his defence rights.

(c) Conclusion

63. In view of the above, the Court concludes that there has been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 in the present case.

 

[Planigale]

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.

Another example.

http://www.bbc.co.uk/news/science-environment-26324244

 

[Numbers]

If there are too many words in the earlier post on Salduz and the structure of an ECHR judgment, perhaps concentrating on this key ECHR statement in the Grand Chamber judgment on Salduz will be useful:

[T]he applicant was undoubtedly affected by the restrictions on his access to a lawyer in that his statement to the police was used for his conviction. Neither the assistance provided subsequently by a lawyer nor the adversarial nature of the ensuing proceedings could cure the defects which had occurred during police custody.

Note the generality of the wording:

"statement to the police" not "confession"

"the defects which had occurred during police custody" not "coercion" or "torture"

There is no indication whether or not the applicant "believed" his "statement" issued during police custody without a lawyer. That is irrelevant. It is relevant that he withdrew the statement once he had a lawyer and was no longer subject to the techniques of the police for extracting "useful" statements.

The primary relevant aspect is that the "statement" issued without counsel of a lawyer during police custody was the substantial evidence used for the applicant's conviction.