Continuation Part 13: Amanda Knox/Raffaele Sollecito

[Machiavelli]

Both the US Secretary of State and the Italian Minister of Justice have the power under law not to extradite and not to request an extradition.

Italian CPP Article 720 paragraph 3:

The Minister of Justice may decide not to request extradition or to postpone the request, informing the requesting judicial authority.
____

Any statement Mach makes or has made about Italian law forcing the Minister of Justice to request extradition is, to be polite, a misstatement.

We need to be aware that Mach's statements about Italian law need to be verified rather than accepted at face value.

I have not made the statement that you appear to attribute to me.

What I have said is that the Italian Government will request extradition. It will be impossible for the government not to go forward, not because of legal obligation, but because of political weakness.

 

[Numbers]

Do you mean if the extradition papers are not in order, name spelt incorrectly or something else?

LOL. Probable cause is similar to reasonable suspicion in Europe. But since there has been a trial (in US view, three trials), there is more information to examine, potentially.

You do realize that the FBI does not allow LCN DNA profiling in criminal cases, only for possible identification in disasters?

That the US has what we call a "Miranda warning" or right, that a person under interrogation must be warned that they are a suspect, and given the opportunity to request a lawyer?

That the US has what we call a "Brady right" which means that the prosecution must provide all relevant exculpatory evidence to the defense (also called discovery)?

That the US has a 6th Amendment to the US Constitution, that guarantees the right to confront (cross-examine) witnesses?

ETA: And the question could come up, has the sought person been tried by the foreign country in accordance with the foreign country's laws and Constitution, which in the case of Italy would include the ECHR and ECHR case-law.

 

[Diocletus]

I have not made the statement that you appear to attribute to me.

What I have said is that the Italian Government will request extradition. It will be impossible for the government not to go forward, not because of legal obligation, but because of political weakness.

So, the Italian government is too weak to resist the will of the magistrates? What happened to their balls?

 

[Bill Williams]

I have not made the statement that you appear to attribute to me.

What I have said is that the Italian Government will request extradition. It will be impossible for the government not to go forward, not because of legal obligation, but because of political weakness.

Welcome to the club, Numbers.

This sub-thread will now have 25 back and forths from a suddenly very precise Machiavelli about nuanced and exact meaning.

 

[Diocletus]

LOL. Probable cause is similar to reasonable suspicion in Europe. But since there has been a trial (in US view, three trials), there is more information to examine, potentially.

You do realize that the FBI does not allow LCN DNA profiling in criminal cases, only for possible identification in disasters?

That the US has what we call a "Miranda warning" or right, that a person under interrogation must be warned that they are a suspect, and given the opportunity to request a lawyer?

That the US has what we call a "Brady right" which means that the prosecution must provide all relevant exculpatory evidence to the defense?

That the US has a 6th Amendment to the US Constitution, that guarantees the right to confront (cross-examine) witnesses?

The only ways that I see the probable cause issue being relevant are: i) discovery is allowed and Italy has to cough up some evidence, i.e., interrogation tapes or EDFs, and/or ii) the judge allows a more expansive probable cause hearing and ends up striking certain "evidence" proffered by Italy, e.g., the DNA results, because such evidence is not sufficiently reliable to be admitted, even in a probable cause proceeding.

 

[Machiavelli]

Whoops, my bad. But since the treaty provides for extradition in DP cases (when DP is taken off the table), this makes it even weirder that the Italian courts blocked extradition in a case where the specific treaty provision was complied with.

The government wanted to extradite Pietro Venezia, and they were about to accomplish the process, on the basis of an article (668) of the procedure code. But Venezia had a good lawyer (Leone) who managed to bring the law itself before the Constitutional Court.
The Court abolished the law itself. And declared that the simple fact that an offence is punishable by the law by DP is itself a "violation" of a constitutional principle that prevents the government from extradite him, and if Florida wanted to extradite Venezia they should not just refrain from applying the law, but actually change the law.
I have no position about the Court's decision, I just note that legally this takes any power of decision away from the government in cases like Venezia's.

 

[Numbers]

Welcome to the club, Numbers.

This sub-thread will now have 25 back and forths from a suddenly very precise Machiavelli about nuanced and exact meaning.

Previously, I had informed Mach of some ECHR law that he/she was already familiar with. I had misunderstood his/her earlier statement.

Now I see I have informed Mach of some Italian law that he/she was already familiar with. I had misunderstood his/her earlier statement.

There is a pattern becoming detectable.

 

[Diocletus]

The government wanted to extradite Pietro Venezia, and they were about to accomplish the process, on the basis of an article (668) of the procedure code. But Venezia had a good lawyer (Leone) who managed to bring the law itself before the Constitutional Court.
The Court abolished the law itself. And declared that the simple fact that an offence is punishable by the law by DP is itself a "violation" of a constitutional principle that prevents the government from extradite him, and if Florida wanted to extradite Venezia they should not just refrain from applying the law, but actually change the law.
I have no position about the Court's decision, I just note that legally this takes any power of decision away from the government in cases like Venezia's.

That's very interesting. So, basically, an Italian Court has overridden the express terms of the US-Italy extradition treaty (in an attempt to interfere with US domestic policy, no less).

But . . . but . . . but . . . that's impossible!

ETA: Why are Italians always getting themselves in trouble in Florida?

 

[Machiavelli]

You previously stated that Italy is compelled to pursue the extradition of Ms Knox in the event that Cassation upholds the guilty verdicts. Where is the evidence to support this assertion?

Why, for example, did Italy not issue an extradition request for Robert Lady, convicted in Italy (finally) in 2012 in the abduction of Abu Omar and subsequently (but briefly) detained in Panama

Why was Italy not compelled to do so?

"It is not clear why Panamanian authorities decided to arrest him at this time or if Italy would have pushed for his extradition. While the Italian judiciary has been keen to arrest Mr Lady, successive governments have been reluctant to pick a fight with Washington. On news of Mr Lady’s return to the US, an Italian foreign ministry official said: “We respect the decision taken by the Panama authorities”."

http://www.ft.com/cms/s/0/25c2ad8c-f09a-11e2-929c-00144feabdc0.html#axzz3S72vOA7P

You are wrong on two points.

First, it is not true that I said the government is legally compelled. In Italy, the government is politically compelled, they are not going to defy the judiciary, because they would loose votes.

Second, it is not true that Italy didn't request the extradition of Lady. They did seek extradition from Panama (Lady was not on US soil). Extradition was obviously refused in all instances. But then Lady was pardoned by the Italian president.

 

[LondonJohn]

That's very interesting. So, basically, an Italian Court has overridden the express terms of the US-Italy extradition treaty (in an attempt to interfere with US domestic policy, no less).

But . . . but . . . but . . . that's impossible!

I like the idea of courts in Italy "abolishing" laws as well

(In a proper democracy, the only body empowered to abolish (and enact) laws is the legislature (in most countries, that's the parliament). Courts can only apply and interpret laws.)

 

[Numbers]

The government wanted to extradite Pietro Venezia, and they were about to accomplish the process, on the basis of an article (668) of the procedure code. But Venezia had a good lawyer (Leone) who managed to bring the law itself before the Constitutional Court.
The Court abolished the law itself. And declared that the simple fact that an offence is punishable by the law by DP is itself a "violation" of a constitutional principle that prevents the government from extradite him, and if Florida wanted to extradite Venezia they should not just refrain from applying the law, but actually change the law.
I have no position about the Court's decision, I just note that legally this takes any power of decision away from the government in cases like Venezia's.

Mach, that is interesting information. By the way, there may be a typo in your post, or a big mistake in the book I am using for the CPP. (The Italian Code of Criminal Procedure: Critical Essays and English Translation, edited by M. Gialuz, L. Luparia, and F. Scarpa). CPP 668 is titled: Person convicted for mistaken name.

Could this Article number be to a different procedure code?

 

[Diocletus]

Has anyone seen this story about apparent callunnia charges against this English woman who reported a rape, and possible extradition:

http://www.telegraph.co.uk/news/ukn...er-being-accused-of-making-up-rape-story.html

Holy Cow.

 

[Numbers]

The only ways that I see the probable cause issue being relevant are: i) discovery is allowed and Italy has to cough up some evidence, i.e., interrogation tapes or EDFs, and/or ii) the judge allows a more expansive probable cause hearing and ends up striking certain "evidence" proffered by Italy, e.g., the DNA results, because such evidence is not sufficiently reliable to be admitted, even in a probable cause proceeding.

Well, actually, it's not a trial, and I don't know if striking certain evidence is the correct terminology. If the evidence is osmotically defective, then there can be no probable cause, and no certificate of extradition issues.

 

[Planigale]

I like the idea of courts in Italy "abolishing" laws as well

(In a proper democracy, the only body empowered to abolish (and enact) laws is the legislature (in most countries, that's the parliament). Courts can only apply and interpret laws.)

Effectively the ECHR can rule laws illegal by saying they breach human rights; so for European democracies this is not true. In the US the supreme court can rule laws unconstitutional so this is not true for the US.

 

[Bill Williams]

Previously, I had informed Mach of some ECHR law that he/she was already familiar with. I had misunderstood his/her earlier statement.

Now I see I have informed Mach of some Italian law that he/she was already familiar with. I had misunderstood his/her earlier statement.

There is a pattern becoming detectable.

The pattern that I have noted is that when Machiavelli is held to account for things he has formerly said, he is well able to "nuance" his way out of it if need be. (Machiavelli has necessitated that "nuance" becomes a verb!)

The one I will grant him is his denial for ever saying, explicitly, that Rudy Guede was Amanda's pimp, for who she'd exchange sex for drugs. It is my belief that he'd said that on IIP, but IIP had a crash where some of the threads were lost. So in lieu of coming up with the quote, I'll give him that one.

It did not stop him, however, from morphing that alleged claim into the new variation - that Amanda had the names of known drug dealers in her phone, from whom she perhaps traded sex for drugs. When challenged on that, he admitted it had nothing to do with the horrid crime involving Meredith, all it did (in his mind) was establish that morally there was no difference between Knox and Guede.

....... which he then further morphed into hinting that it also might have had some relevance towards a motive of a drug-fueled sex-game gone wrong.... which, sounds an awful lot like he IS trying to make it have something to do with the crime.

So be prepared for some fun and games, and you will be wise to adopt the convention of considering that "nuance" can be a verb.

 

[LondonJohn]

Has anyone seen this story about apparent callunnia charges against this English woman who reported a rape, and possible extradition:

http://www.telegraph.co.uk/news/ukn...er-being-accused-of-making-up-rape-story.html

Holy Cow.

Utterly nuts. And another vivid illustration (if any were needed) of the oppressive, fascist-hangover way in which the Italian judiciary and law enforcement agencies act towards private citizens.

Perhaps if Italy had anything better than a standing joke of a parliamentary system, voters might finally be able to put pressure on legislators to sort this nasty little mess out. But then, the people tend to get the government they deserve, so..........

 

[LondonJohn]

Effectively the ECHR can rule laws illegal by saying they breach human rights; so for European democracies this is not true. In the US the supreme court can rule laws unconstitutional so this is not true for the US.

They cannot abolish them though. That's the point. They can request (or even order) that the relevant legislature abolishes them, but they cannot do it themselves.

 

[Numbers]

I like the idea of courts in Italy "abolishing" laws as well

(In a proper democracy, the only body empowered to abolish (and enact) laws is the legislature (in most countries, that's the parliament). Courts can only apply and interpret laws.)

Well, maybe in some or most countries that is true.

In the US, a court can declare a law that is before it in a case unconstitutional, either to a state or the federal Constitution.
If the court is a lower court, state or federal, this ruling is typically appealed.
The final court to decide would be a state supreme court, or the US Supreme Court, depending on whether the law was allegedly inconsistent with a state or the US Constitution.

ETA: But for Italy to refuse to extradite someone for murder unless a US state (Florida) changed its law on capital punishment is really humorous. I can imagine the response of the Floridians.

 

[LondonJohn]

Well, maybe in some or most countries that is true.

In the US, a court can declare a law that is before it in a case unconstitutional, either to a state or the federal Constitution.
If the court is a lower court, state or federal, this ruling is typically appealed.
The final court to decide would be a state supreme court, or the US Supreme Court, depending on whether the law was allegedly inconsistent with a state or the US Constitution.

See my post above. The US Supreme Court cannot introduce or repeal any laws. Only the various legislatures can do that. The SC can tell legislators that any particular law is unconstitutional, since one of the SCs key jobs is to interpret the constitution and apply it as appropriate. And if anyone is convicted under a law that the SC deems unconstitutional, then of course the SC can overturn the conviction. But overturning a conviction is categorically not the same thing as abolishing the law that led to the conviction. And similarly, announcing that a particular law is unconstitutional is not the same as abolishing the law. It's saying to the relevant legislature: "I'd abolish that law if I were you".

 

[Planigale]

Has anyone seen this story about apparent callunnia charges against this English woman who reported a rape, and possible extradition:

http://www.telegraph.co.uk/news/ukn...er-being-accused-of-making-up-rape-story.html

Holy Cow.

Well that is never going to happen. I do not know how they will finess it it but I cannot see either the judiciary or the government allowing this. This is something that will unite both left (women's rights) and right (anti Europe).