Continuation Part 14: Amanda Knox/Raffaele Sollecito

[Kaosium]

These are your hopeful assumptions. The reality is the ECHR frequently rules against countries, applies fines, and the sentences of the victimized parties don't change.

Additionally, the ECHR certainly has nothing to do with extradition. You're merely assuming that political pressure will help her cause. I very much doubt that.

State can determine that Italy violated her rights without a ruling from the ECHR. There's basically no chance of an extradition with an ECHR ruling against Italy regarding this case.

 

[acbytesla]

But they signed a treaty!

So? Ask any citizen about their country being ruled by another. It offends their built-in nationalistic pride. So the illusion is important...even if the reality is much different.

 

[Kauffer]

Well, this development, if it is true - may be stunning.

First of all, though, I don't trust the Daily Mail in terms of their reliability for presenting factual news. Even when they don't simply invent news, they (and other media, sometimes even responsible media) get things wrong. Also, the DM strives to put a sensational slant on what it prints.

It's possible that Amanda Knox and her lawyers have requested interim measures from ECHR. Those are orders to a State to not do something, and they have immediate effect. But they are generally (always, I thought) reserved for what ECHR considers life-and-death emergencies, such as extradition from a Council of Europe country, where supposedly one will not be tortured and/or killed, to another country where there is a real risk of such treatment. Here is an excerpt from the ECHR fact-sheet on interim measures:



So I tend to think that interim measures are not involved. Also, I would think that interim measures are announced by the ECHR, and not publicly stated as requested by one's lawyer, but that is my guess on the protocol and procedure. I have been wrong before.

My thought is that in her recent (rumored) appeal supplement, Amanda and her lawyers pointed out that she had lodged a complaint with the ECHR about the violation of her human rights by Italy with regards to the simple calunnia conviction. Since ECHR case-law is overwhelmingly in favor of Italy being found in violation (IMO, and I've a read a fair amount of ECHR case-law), Amanda and her lawyers may have suggested that the CSC delay any final decision until the ECHR acts. This act might be the communication of the case to Italy or it might be the judgment by ECHR. Such a suspension, especially until a judgment by ECHR, would lessen harm to the defendants, and certainly to Raffaele, who would probably be imprisoned if the conviction were finalized, and also to the reputation of Italy when it otherwise would be found to be in violation of multiple human rights protections of the Convention. But again, this is guessing on my part.

If the suggestion on suspension of the case to await ECHR action was in the appeal supplement, I assume that the civil lawyers and the prosecutor learned of it when they received their copies of the appeal supplement document.

If someone else has ideas or knowledge they are free to contribute, I would welcome learning more about this development.

Yours is a weighty argument, but cassation would effectively be asked for an open ended delay, which could amount to a number of years - why wouldn't Cassation's response be - you are of course free to pursue any lawful remedy but this cannot affect the business of the Supreme Court of the Republic? Alternatively, is there anything in the CCP or the constitution that would support such a request?

 

[carbonjam72]

If the echr rules that Italy committed an HR violation, then Knox will never be extradited. Also, if an Art 6 violation is found, then restitutio integrum will be ordered, which as a practical matter means that Italy will vacate the Calunnia conviction.

Yes, I think this is ultimately where the case has to go. The ISC reversal of Hellman is where the case went off the rails. Hellman should not have convicted on calunnia, and ISC should not have rejected the Hellman acquittal in the other charges.

Chieffi's opinion introduced:

- the reversal in the burden of proof (contamination must be proven), which has to be rejected;

- over-ruled Hellman on finding Curatolo non-credible - which it can't do because it didn't hear Curatolo in person whereas Hellman did;

- and required Knox/Sollecito be bound by the results of Guede's fast track where they were neither represented nor was the damaging imported fact that 'Guede killed with others' ever disputed by any party;

- and I don't recall if they allowed Rudy's testimony in against them which would also bounce because he was not subject to cross;

- and the rejection of the independent experts C&V was arbitrary and unfair;

- and using Amanda's coerced statements against her in the murder case was also a violation.

Going back to asking cassation to redo their consideration of Hellman from scratch, while eliminating the calunnia convictions seems like the correct outcome of an ECHR intervention.

In short, ISC at some point, will have a united section panel reinstate Hellman as an outcome of an ECHR intervention. my best guess -

 

[griffinmill]

I may be wrong, but the reason why I don't think this is so is because the response is obvious even if Cassation understands the significance of an ECHR ruling - There is no clear timescale for the ECHR to consider the case. It could be years. We're not waiting that long to issue a decision, which has been on our calendar for a year.

Furthermore, they could have petitioned Cassation weeks or months ago with the argument, but haven't done so.

I think they've gone to the ECHR...but I may be wrong.

Re-read the article closely. I think it's pretty clear. It states that AK's legal team asked for the decision to be suspended pending the ECHR. Why would they petition the ECHR to suspend the case when they have no jurisdiction? And furthermore, why would the ECHR, which can't seem to get around to ruling on the calunia conviction, all of a sudden have an opinion on the matter? Has the ECHR ever intervened just prior to sentencing on a verdict?

 

[Strozzi]

The defense counsel may have informed them, either as a courtesy, or possibly required by protocol. Or, the reporter could have phoned them up and asked, which I think may be more likely, because the counsel was reported as being in shock. If they were aware of it, why would they be in shock? Unless shock lasts a long time.

Kaerchers' lawyers are in shock because defense's appeal to ECHR is a real step forward in the process that Kerchers' lawyers realize will overturn their legal fee payday.

 

[Numbers]

What about Fabiani's statement (that if the ECHR rules in favor of Knox, it would mean nothing) is obtuse?

The ECHR rarely has any impact on sentences. They largely slap wrists and impose fines.
All Fabiani is doing is contextualizing the actual power of the ECHR. Which has no jurisdiction whatsoever over any of its member countries' court proceedings.

{Highlighting added to quote.}

The highlighted sentence is not correct. Specifically, if ECHR rules that a trial has violated Convention Article 6, the right to a fair trial, a convicted person has the right to receive a revision trial on his or her request. The revision trial, if conducted (rather than the case being automatically dismissed by the State) must be conducted fully in compliance with Convention Article 6. The Committee of Ministers of the Council of Europe supervises this process (not the ECHR, which only acts as a court, not an administrator).

For Italy, a revision trial is conducted under CPP Article 630. The provision is currently in a footnote:

Constitutional Court judgment No 113/2011 has added the possibility to request revision when it is necessary to reopen the proceedings in order to comply with a final judgment of the European Court of Human Rights.

 

[Kauffer]

The ECHR has no jurisdiction over Italy. If Italy decided to reverse their decision in the case you mention, it was their own decision borne out of a legal process that was already playing out.

That's just plain silly.

The convention is part of the Italian constitution. Its case law provides its meaning and all Italian courts are under a continuous instruction from the constitutional court to interpret Italian law in accordance with the convention.....something they have failed to do in this case.

 

[acbytesla]

oh yeah, I forgot.

Hope this isn't off topic, But Brother Cuomo made a huge deal about curtailing corruption and formed a special committee for just that purpose. When they started digging up dirt, he disbanded the committee and cut their budget into irrelevancy. Truthfully, I never even liked the Dad.

It is. But since that is New York and I live in Seattle I don't really have an opinion about any of them except Chris. And that is just about his moronic interview with Knox.

 

[griffinmill]

{Highlighting added to quote.}

The highlighted sentence is not correct. Specifically, if ECHR rules that a trial has violated Convention Article 6, the right to a fair trial, a convicted person has the right to receive a revision trial on his or her request. The revision trial, if conducted (rather than the case being automatically dismissed by the State) must be conducted fully in compliance with Convention Article 6. The Committee of Ministers of the Council of Europe supervises this process (not the ECHR, which only acts as a court, not an administrator).

For Italy, a revision trial is conducted under CPP Article 630. The provision is currently in a footnote:

Then I stand corrected. I wonder what percentage of Article 6 complaints are found valid? I'll bet it's monumentally low, and in this case I'll bet the chances are even lower.

I appreciate all the grasping at straws, but the calunnia conviction is a slam dunk that I wager the ECHR dismisses out of hand.

 

[Kauffer]

These are your hopeful assumptions. The reality is the ECHR frequently rules against countries, applies fines, and the sentences of the victimized parties don't change.

Additionally, the ECHR certainly has nothing to do with extradition. You're merely assuming that political pressure will help her cause. I very much doubt that.

No. Diocletus' argument is sound. An article 6 violation will cause the setting aside of a conviction and sentence - art 46 of the convention bridged to art 117 of the Italian constitution plus various cassation decisions, in fact.

No Secretary of State in the USA will extradite anyone in connection with a violation of human rights. Yet, since such violations nullify convictions, the matter will not arise.

 

[carbonjam72]

Kaerchers' lawyers are in shock because defense's appeal to ECHR is a real step forward in the process that Kerchers' lawyers realize will overturn their legal fee payday.

Yes. And how great would that be. They didn't get to steal, and now they mope.

 

[Numbers]

Yours is a weighty argument, but cassation would effectively be asked for an open ended delay, which could amount to a number of years - why wouldn't Cassation's response be - you are of course free to pursue any lawful remedy but this cannot affect the business of the Supreme Court of the Republic? Alternatively, is there anything in the CCP or the constitution that would support such a request?

I largely agree with what you have written. CSC could totally ignore such a request and proceed to convict as soon as the present hearing was concluded.

On the other hand, it may be reminder of the legal and moral quagmire the Italian judiciary has propelled itself into. CSC can legitimately delay finalizing conviction by about two years simply by annulling the Nencini verdict and referring the case to a 3rd 2nd-level trial. This would avoid a suspension that might appear to some on the judiciary as acknowledging that ECHR is actually the Supreme Supreme-Court of Europe regarding human rights and that the Italian judiciary is deep in the muck.

So we will see (as usual). I imagine that in the next two days this will become somewhat more clear. Since it's Italy, it may never be truly clear.

 

[Strozzi]

So? Ask any citizen about their country being ruled by another. It offends their built-in nationalistic pride. So the illusion is important...even if the reality is much different.

Yea, we can all play the game and pay homage to Italy as a sovereign nation. We will pretend the Italian judicial system self-corrected itself.

 

[Numbers]

Then I stand corrected. I wonder what percentage of Article 6 complaints are found valid? I'll bet it's monumentally low, and in this case I'll bet the chances are even lower.

I appreciate all the grasping at straws, but the calunnia conviction is a slam dunk that I wager the ECHR dismisses out of hand.

You are welcome to your opinion, baseless as it may be.

If you have citations to ECHR case-law to support your opinion, please present it on this forum. I am sure we would all be most interested in learning of such judgments.

 

[Kauffer]

Re-read the article closely. I think it's pretty clear. It states that AK's legal team asked for the decision to be suspended pending the ECHR. Why would they petition the ECHR to suspend the case when they have no jurisdiction? And furthermore, why would the ECHR, which can't seem to get around to ruling on the calunia conviction, all of a sudden have an opinion on the matter? Has the ECHR ever intervened just prior to sentencing on a verdict?

The ECHR does have jurisdiction. I've explained that already. The ECHR in these circumstances would not be asked to issue an opinion on the matter of the application in respect of the calunnia conviction. It would be asked to instruct Italy to halt the murder trial pending the ECHR's decision on whether to admit the application.

 

[Diocletus]

Then I stand corrected. I wonder what percentage of Article 6 complaints are found valid? I'll bet it's monumentally low, and in this case I'll bet the chances are even lower.

I appreciate all the grasping at straws, but the calunnia conviction is a slam dunk that I wager the ECHR dismisses out of hand.

They haven't been waiting for a year and a half to dismiss it out of hand. And, once it is admitted, the chances are very high that an art 6 violation is found.

 

[griffinmill]

No. Diocletus' argument is sound. An article 6 violation will cause the setting aside of a conviction and sentence - art 46 of the convention bridged to art 117 of the Italian constitution plus various cassation decisions, in fact.

No Secretary of State in the USA will extradite anyone in connection with a violation of human rights. Yet, since such violations nullify convictions, the matter will not arise.

You're dreaming. I'll agree that if the ECHR raises a big fuss over the case that it will substantially help AK's efforts to avoid extradition. But I'll disagree the ECHR will ultimately save her.

The ECHR won't find merit in her case for calunnia to be sure. And even if they have quibbles with the murder case much later (which I doubt), they won't be significant enough that it will deter extradition (if she hasn't already been extradited.)

 

[griffinmill]

They haven't been waiting for a year and a half to dismiss it out of hand. And, once it is admitted, the chances are very high that an art 6 violation is found.

Yes, more hopeful assumptions. It will be interesting to hear your take on the ECHR when they dismiss the calunnia on the merits.

 

[Kauffer]

I largely agree with what you have written. CSC could totally ignore such a request and proceed to convict as soon as the present hearing was concluded.

On the other hand, it may be reminder of the legal and moral quagmire the Italian judiciary has propelled itself into. CSC can legitimately delay finalizing conviction by about two years simply by annulling the Nencini verdict and referring the case to a 3rd 2nd-level trial. This would avoid a suspension that might appear to some on the judiciary as acknowledging that ECHR is actually the Supreme Supreme-Court of Europe regarding human rights and that the Italian judiciary is deep in the muck.

So we will see (as usual). I imagine that in the next two days this will become somewhat more clear. Since it's Italy, it may never be truly clear.

Interesting - a strategic move designed not to be adjudicated on the merits but to shift the court towards sending the case back to 2nd instance. Is that right?