Strozzi
Graduate Poster
This is the "equality of arms" citation in Podeschi v. San Marino (above post).
Question: Did AK & RS have the requisite equality of arms in their remand hearings, considering that apparently exculpatory information, including DNA profile evidence showing that Guede, and neither Sollecito nor Lumumba, was Kercher's rapist, was suppressed?
From NIKOLOVA v. BULGARIA 31195/96 25/03/1999 [GC]
58. The Court recalls that arrested or detained persons are entitled to a review bearing upon the procedural and substantive conditions which are essential for the “lawfulness”, in the sense of the Convention, of their deprivation of liberty. This means that the competent court has to examine “not only compliance with the procedural requirements set out in [domestic law] but also the reasonableness of the suspicion grounding the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention” (see the Brogan and Others v. the United Kingdom judgment of 29 November 1988, Series A no. 145-B, pp. 34-35, § 65).
A court examining an appeal against detention must provide guarantees of a judicial procedure. The proceedings must be adversarial and must always ensure “equality of arms” between the parties, the prosecutor and the detained person (see the Sanchez-Reisse v. Switzerland judgment of 21 October 1986, Series A no. 107, p. 19, § 51; the Toth v. Austria judgment of 12 December 1991, Series A no. 224, p. 23, § 84; and the Kampanis v. Greece judgment of 13 July 1995, Series A no. 318-B, p. 45, § 47). Equality of arms is not ensured if counsel is denied access to those documents in the investigation file which are essential in order effectively to challenge the lawfulness of his client’s detention (see the Lamy v. Belgium judgment of 30 March 1989, Series A no. 151, pp. 16-17, § 29). In the case of a person whose detention falls within the ambit of Article 5 § 1 (c), a hearing is required (see the Assenov and Others judgment cited above, p. 3302, § 162).
I wonder if the reason the motivation report is taking a long time to prepare is because the judges and/or their law clerks are trying to address all legal issues - the sorts of issues referred to above - that occurred in the case either to identify and excoriate the police and prosecution handling of it, followed by the compliant and weak judges who ruled on matters of continued detention, evidence, rights, etc., and their subsequent verdicts.
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