acbytesla
Penultimate Amazing
- Joined
- Dec 14, 2012
- Messages
- 41,020
Very good observation. I mean there is nothing to support that. But that is their fantasy.
-
Security incident: ISF was recently accessed by intruders. Please change your password, and change it anywhere else you used it. Read more
Continuation Part 18: Amanda Knox/Raffaele Sollecito
- Thread starter Bill Williams
- Start date
- Status
Very good observation. I mean there is nothing to support that. But that is their fantasy.
The prosecution had a RIGHT to cross examine them, they did not want to.
Amanda and Raf were NOT ALLOWED to cross examine rudy.
For heavens sake, can you even read?????
The quote from the ISC refers to Rudys testimony, not AK and RS
"the guilt of the defendant cannot be established on the basis of statements by persons who by choice have always voluntarily avoided examination by the accused or his counsel".
An interesting and cleaver form of lie is presented in your response.
You present the fact that the nutcase prosecutors did not cross examine their statement as if the nutcase prosecutors DID NOT HAVE the RIGHT to cross examine, but they did: They just choose to not cross examine, which is very different from the point that the ISC is making.
The ISC is saying it is a violation of LAW that the prosecutor prevented AK and RS from cross examining Rudy.
TruthCalls
Graduate Poster
- Joined
- Oct 26, 2011
- Messages
- 1,978
You are confusing yourself. We are discussing the Court of Second Instance. It is a de novo trial. The Hellmann court proves this. It reviewed evidence, heard new testimony from witnesses and appointed independent experts to review the DNA evaluation. Hellmann also issued it's own verdict. If all it was doing was evaluating the legality of the lower court then all it would be able to do is uphold or overturn, but it could not issue a new verdict. And when the Court of Cassation overturned Hellmann the case was remanded back to the Court of Second instance for a new trial, a new verdict. Nencini was allowed to consider everything from both Massei and Hellmann, but his court nonetheless was required to issue its own verdict, with its own motivation report. And as we know now, Nencini and Massei did not agree on a great many things, including motive.
BTW, if all the Court of Cassation is allowed to do is rule on legalities, then please explain how Chieffi was allowed to direct a lower court to look at new evidence and hear new witnesses? Those are not issues of legality.
I do not understand why the police would think the rather sedentary Sollecito would be more likely to make a world record triple jump than the athletic Guede? The issue about lack of connecting prints applies no matter what who made the print. It is not an argument that favours any particular person as the source of the print.
The identification of the print as Sollecito's is the result of frankly fraudulent activity by the police. Most of the measured values between the sample print of Sollecito and the print on the mat are identical to within 1mm. This is impossible, even repeated prints on the same substrate would have greater variability. The size of prints varies to a greater extent comparing a static stand to a walking print. The variability morning to evening is greater than that measured. This leaves aside that the prints were made on different substrates.
The only way the results given could have been arrived at is by measuring the sample print then fitting it to the mat print.
Finally the length of the ball of the foot measured is significantly different from Sollecito's, if the length of the ball of the foot differs, it cannot be his footprint. If one dimension is significantly different this is exclusionary.
Not only were the measurements given on the footprint fraudulent, the police could not even legitimately conclude Sollecito's identity from the print as their own measures excluded him.
You can go to any source of data, look at the results yourself. They are fraudulent. (The Italian system of course prevents this case being made as the result would be a case of callunia being brought).
NotEvenWrong
Muse
- Joined
- Jun 14, 2014
- Messages
- 910
Luminol can react with a lot of different substances. Hence the need for confirmatory testing:
http://chem-faculty.lsu.edu/mccarle...es_SP2008/Barni_Talanta_Luminol_Forensics.pdf
See the table at the bottom of page 11 in the document (page number 906). Some of the compounds that can generate luminol emission: soils, minerals, metal objects, rust, biological compounds containing metal-porphyrins or metal non-porphyrin complexes, complex proteins and pigments, organic compounds containing oxidants, oils, glues, carpets (yes, carpets can generate luminol signals), sinks, automobile seats, paints and varnishes, and soils.
Of course the less intelligent will interpret this gargantuan list of potential false positives as the following: "OMG! You think luminol reacted to turnip juice! That seems likely lol!!11!" This, however, is simply due to cognitive bias and deep, unshakable dysrationality. There is in fact a reason TMB tests are performed and further confirmatory tests are needed to confirm luminol positives are blood (vs. the hundred other possible compounds it could be), and it's not because (good, competent) forensic scientists like to waste time and money performing unnecessary tests.
anglolawyer
Banned
Edited by Agatha:
Edited breach of rule 0 and rule 12.
There will now ensue several pages in which we shall be regaled with claims that there exists a threshold somewhere between positive luminol and negative TMB which could still be blood. We have had this at least a dozen times before. You probably have a scientist's answer - mine is a lawyer's: the uncontested evidence in the case was that if TMB is negative 'you can be sure it's not blood' (P Stefanoni, witness for the state) so that's an end of it.
Plus of course she suppressed the TMB results (I wonder why) and either did not carry out or suppressed the results of confirmatory testing (I wonder why).
Edited by Agatha:
Edited breach of rule 0 and rule 12.
Last edited by a moderator:
TruthCalls
Graduate Poster
- Joined
- Oct 26, 2011
- Messages
- 1,978
Worse still, we're now going to get the explanation of how these samples managed to lose all their white blood cells and with that, DNA.
It's amazing how these prints were made with Meredith's blood and yet most of them either had no DNA or DNA other than Meredith's. PGP either come up with bizarre explanations for how Meredith's DNA disappeared or they simply ignore these prints and focus on the few that did have Meredith's DNA.
As Massei reasons; even if it was negative for TMB and does not contain Meredith's DNA, Meredith's blood was in the vicinity and so what else could it be.
Last edited by a moderator:
anglolawyer
Banned
Ah, yes, the 'stands to reason' argument. Why waste taxpayers' money testing at all?
Ken Dine
Muse
Also unexplained, is if Amanda did indeed inflict the death blow to Meredith while she was being restrained by Guede and Raffaele, is how the blood spurting from that fatal neck wound managed to MAGICALLY pass through Amanda's body when Meredith aspirated blood spray on the wall and wardrobe closet from that fatal blow?
Since Amanda didn't have a spot of blood on her, nor did she leave any evidence of herself behind in Meredith's bedroom, I guess the only logical conclusion is that Amanda is indeed a witch?
If she isn't a witch who had used magic that night to evade the CCTV cameras and all the blood (etc), then Amanda clearly isn't guilty.
Ken Dine
Muse
Good point about the faulty logic of assuming that the lack of connecting footprints to that bathmat could necessarily point blame at Raffaele, over any other person.
Bathrooms are designed to be quickly cleaned, and if Amanda & Raffaele had cleaned anything, then they would have surely spent 20 minutes to quickly wipe down that bathroom, and also taken the bathmat with them that night to ditch it.
Instead, Amanda & Raffaele took the Postal Police directly to that bathmat and pointed out the footprint to the cops ...not exactly the actions of guilty people.
Guede admitted to using towels that night to sop up some of the blood (3 bloody towels were found), so Guede may have used one of the towels to quickly remove visible blood from the floor since he wanted to delay the discovery of Meredith's body for as long as possible.
There were plenty of cleaning supplies already present in the cottage if the murderer(s) had wanted to clean the bathroom thoroughly, but Guede was in hurry, and Amanda & Raffaele clearly didn't clean that bathroom, nor even remove the bathmat, which would have been easy for them to do.
Now, if the cops had instead found that bloody bathmat in the dumpster behind Raffaele's apartment, then we wouldn't even be here discussing this issue.
Strozzi
Graduate Poster
Plaingale, thank you for this concise post. To paraphrase what you wrote, the scientific police expert who compared the foot smear on the bathmat to Raffaele's foot "cooked the books" to arrive at his statement that they match.
Vixen, if I remember correctly, you are a chartered accountant, so you know what the expression "cooking the books" means.
Last edited:
Strozzi
Graduate Poster
That is a poor example. We still would be discussing this case, as R and A did not go out that night. We would want to know who placed the bloody bathmat in that dumpster. Rudy lived not far from where R lived. If Rudi happened to dump the bathmat in a dumpster in back of R's building I'd want to know that, just like I still want to know where he dumped his knife - the one he used on Meredith, and what dumster he used to dump his bloody clothes.
I will point out that the police initially searched the cottage property for evidence, including a knife. They apparently ceased looking when 2 bozos grabbed that big sucker from R's cutlery drawer - the carving knife that doesn't fit the mortal stab wound. Incompetent police, who brought shame to Italy.
Edited to add:
I should not have described the 2 police who took Raffaele's big knife as bozos, for that term has a quality of stupidity to it. If the 2 police who took the big knife from Raffaele's were low-level cops - street-level patrolmen - it would have been an act of ignorance (stupidity) and "bozos" might be on the mark. The 2 police who seized the knife ("how about this one?" "Great.") were not street cops, they were experienced investigators. They were conniving to fabricate evidence in taking the knife to be the murder weapon. All they needed to make it so was the cooperation of the police lab to "find" the victim's DNA on the blade. It was to be leverage, to frighten Raffaele, to show him they can make things real bad for him and he better cooperate and compromise Amanda.
Last edited:
Ken Dine
Muse
I see your point, but at least finding the bathmat in Raffaele's dumpster would be something potentially damning instead of the usual nonsense that was presented as evidence.
Of course, seemingly damning evidence can be controverted, such as if there were CCTV videos capturing Guede walking away with a rolled up bathmat.
And, of course, unless it was done by happenstance, then it's not very likely Guede would have dumped the bloody bathmat into Raffaele's dumpster since he didn't even know Raffael.
CCTV cameras are ubiquitous today, and the Italian police seized and reviewed lots of CCTV video both between Raffaele's apartment, and in the vicinity of the cottage, but then the police refused to turn over that video to the defense since the police had claimed the many CCTV video footage showed nothing relevant.
Ya, nothing relevant that the prosecution could use, but I suspect that the defense could have used that CCTV footage.
Grinder
Penultimate Amazing
- Joined
- Aug 26, 2011
- Messages
- 10,033
I found the article below and although written in 2004 it is excellent and written by Italians lawyers .
It describes the 1988 changes attempting to convert their system into a hybrid adversarial/inquisitional system. The Constitutional Court using the damn Constitution ruled that much of the new code was unconstitutional and therefore the parliament rewrote the Constitution (amazing to get through in Italy as it required votes at different times). The CC only rules on whether laws are constitutional and therefore will likely have nothing to with this case. For example, it was the law of the land that an accomplice’s statement made out of court can’t be used against the defendant if that defendant evokes the right not to silence, so the ISC had total right to rule and the CC wouldn't be the court as earlier speculated here.
Numbers there are some references to the ECHR you may be interested in.
The main objective of this broad reform effort was to assure the right of confrontation in the cases in which the statement is given by a co– accused. Article 500, section 3, which was just described as to the use of prior inconsistent statements against witnesses, also deals with the problem of the use of statements of an accomplice against a defendant. That section states if a co–accused during trial refuses to answer questions and exercises his or her right to remain silent, prior out–of–court statements of the alleged accomplice cannot be used as substantive evidence against the defendant (unless the defendant consents to such use).121
The New Italian Code of Criminal Procedure: The Difficulties of Building an Adversarial Trial System on a Civil Law Foundation
https://lawweb.colorado.edu/profiles/pubpdfs/pizzi/PizziMJIL.pdf
Some random snips:
Unable to protect the adversary values in the Code from the Court’s constitutional analysis, Parliament decided to change the Constitution. The effort to reform the Constitution came to be called the “due process reform” (la riforma del giusto processo).106
In judgment n. 361/1998,105 the Court declared the revised Article 513 unconstitutional because it too severely limited the admissibility at trial of hearsay statements by an accomplice. The Court ruled that even if a defendant has not consented to the admission of such statements at trial, such statements must be admissible as long as there is other evidence tending to corroborate the out–of–court statement.
Judgment n.361/1988 was the last straw as far as the Parliament was concerned. It had tried to preserve the values of confrontation and cross– examination which are at the heart of adversary trial procedures, but the Constitutional Court had failed to give those values the priority and the weight that Parliament felt they deserved. Parliament had only one another option that it could take: amend the Constitution.
Italy has been rather notorious in the period since World War II for a series of governments that have not been able to maintain a majority coalition in Parliament so as to stay in power. But what is amazing is that the due process reform, which required two approvals by an absolute majority in each chamber of the Parliament, was approved relatively quickly. That parties of both the left and the right in a multi–party system were able to come to agreement on the issue of the need to better protect defendants shows the hunger in Italy for change in the trial system.
The due process reform was achieved through an amendment to Article 111 of the Italian Constitution.108 The sections added to Article 111 make it a very long article compared to other articles of the Italian Constitution. The amendment added five sections that read as follows:
1. Every judicial matter should be carried out under the principle of due process of law.
2. Every trial should guarantee each party equal standing to offer evidence or contrary evidence in front of an impartial judge. The law also guarantees that trials should be of a reasonable length.
3. In the criminal trial the law guarantees that a person accused of a crime should be privately informed as soon as possible of the nature and the reasons for the charges against him; that the accused should be assured enough time and suitable conditionsto prepare his defense; that the accused should be allowed the opportunity, before the judge, to examine or to have examined any witnesses against him; that the accused have the right to subpoena favorable witnesses at trial on an equal basis with the prosecution, as well the right to produce other evidence in his favor; and that the accused be assisted by a translator at trial if he does not understand or speak the language used in the trial.
4. The criminal trial is based on the principle that evidence should be heard in front of the parties and each party should be able to offer contrary evidence and to challenge opposing evidence. The accused cannot be proven guilty upon declarations of anyone who willingly avoided being examined by the accused or by his lawyer.
5. The law regulates cases in which evidence is not presented in a manner such that the accused may challenge the evidence at trial by consent of the accused, due to verified objective impossibility or as a result of proven illicit conduct.109
These five sections of Article 111 reproduce some of the principles guaranteed in Article 6 of the European Convention of Human Rights.110 In essence, what Article 111 guarantees a defendant is the right to offer contradictory evidence, the right to an impartial judge, the right to a trial of a reasonable length, the right to confront and cross–examine witnesses, and the right to due process of law.
More specifically given the earlier decisions of the Constitutional Court, Article 111 provides that a defendant cannot be proven guilty based on out–of–court declarations by any accuser who has not been subject to cross–examination by the defendant (or the defendant’s lawyer).111 The only exceptions are situations where the accused has consented to the use of such statements, where there is the objective impossibility of getting the witness to repeat the statement (such as the case where the witness has died), or a situation where unlawful conduct has made it impossible to have the witness testify at trial. The Constitution provides that in these situations the law shall determine the scope of these exceptions.
The main objective of this broad reform effort was to assure the right of confrontation in the cases in which the statement is given by a co– accused. Article 500, section 3, which was just described as to the use of prior inconsistent statements against witnesses, also deals with the problem of the use of statements of an accomplice against a defendant. That section states if a co–accused during trial refuses to answer questions and exercises his or her right to remain silent, prior out–of–court statements of the alleged accomplice cannot be used as substantive evidence against the defendant (unless the defendant consents to such use).121
It describes the 1988 changes attempting to convert their system into a hybrid adversarial/inquisitional system. The Constitutional Court using the damn Constitution ruled that much of the new code was unconstitutional and therefore the parliament rewrote the Constitution (amazing to get through in Italy as it required votes at different times). The CC only rules on whether laws are constitutional and therefore will likely have nothing to with this case. For example, it was the law of the land that an accomplice’s statement made out of court can’t be used against the defendant if that defendant evokes the right not to silence, so the ISC had total right to rule and the CC wouldn't be the court as earlier speculated here.
Numbers there are some references to the ECHR you may be interested in.
The main objective of this broad reform effort was to assure the right of confrontation in the cases in which the statement is given by a co– accused. Article 500, section 3, which was just described as to the use of prior inconsistent statements against witnesses, also deals with the problem of the use of statements of an accomplice against a defendant. That section states if a co–accused during trial refuses to answer questions and exercises his or her right to remain silent, prior out–of–court statements of the alleged accomplice cannot be used as substantive evidence against the defendant (unless the defendant consents to such use).121
The New Italian Code of Criminal Procedure: The Difficulties of Building an Adversarial Trial System on a Civil Law Foundation
https://lawweb.colorado.edu/profiles/pubpdfs/pizzi/PizziMJIL.pdf
Some random snips:
Unable to protect the adversary values in the Code from the Court’s constitutional analysis, Parliament decided to change the Constitution. The effort to reform the Constitution came to be called the “due process reform” (la riforma del giusto processo).106
In judgment n. 361/1998,105 the Court declared the revised Article 513 unconstitutional because it too severely limited the admissibility at trial of hearsay statements by an accomplice. The Court ruled that even if a defendant has not consented to the admission of such statements at trial, such statements must be admissible as long as there is other evidence tending to corroborate the out–of–court statement.
Judgment n.361/1988 was the last straw as far as the Parliament was concerned. It had tried to preserve the values of confrontation and cross– examination which are at the heart of adversary trial procedures, but the Constitutional Court had failed to give those values the priority and the weight that Parliament felt they deserved. Parliament had only one another option that it could take: amend the Constitution.
Italy has been rather notorious in the period since World War II for a series of governments that have not been able to maintain a majority coalition in Parliament so as to stay in power. But what is amazing is that the due process reform, which required two approvals by an absolute majority in each chamber of the Parliament, was approved relatively quickly. That parties of both the left and the right in a multi–party system were able to come to agreement on the issue of the need to better protect defendants shows the hunger in Italy for change in the trial system.
The due process reform was achieved through an amendment to Article 111 of the Italian Constitution.108 The sections added to Article 111 make it a very long article compared to other articles of the Italian Constitution. The amendment added five sections that read as follows:
1. Every judicial matter should be carried out under the principle of due process of law.
2. Every trial should guarantee each party equal standing to offer evidence or contrary evidence in front of an impartial judge. The law also guarantees that trials should be of a reasonable length.
3. In the criminal trial the law guarantees that a person accused of a crime should be privately informed as soon as possible of the nature and the reasons for the charges against him; that the accused should be assured enough time and suitable conditionsto prepare his defense; that the accused should be allowed the opportunity, before the judge, to examine or to have examined any witnesses against him; that the accused have the right to subpoena favorable witnesses at trial on an equal basis with the prosecution, as well the right to produce other evidence in his favor; and that the accused be assisted by a translator at trial if he does not understand or speak the language used in the trial.
4. The criminal trial is based on the principle that evidence should be heard in front of the parties and each party should be able to offer contrary evidence and to challenge opposing evidence. The accused cannot be proven guilty upon declarations of anyone who willingly avoided being examined by the accused or by his lawyer.
5. The law regulates cases in which evidence is not presented in a manner such that the accused may challenge the evidence at trial by consent of the accused, due to verified objective impossibility or as a result of proven illicit conduct.109
These five sections of Article 111 reproduce some of the principles guaranteed in Article 6 of the European Convention of Human Rights.110 In essence, what Article 111 guarantees a defendant is the right to offer contradictory evidence, the right to an impartial judge, the right to a trial of a reasonable length, the right to confront and cross–examine witnesses, and the right to due process of law.
More specifically given the earlier decisions of the Constitutional Court, Article 111 provides that a defendant cannot be proven guilty based on out–of–court declarations by any accuser who has not been subject to cross–examination by the defendant (or the defendant’s lawyer).111 The only exceptions are situations where the accused has consented to the use of such statements, where there is the objective impossibility of getting the witness to repeat the statement (such as the case where the witness has died), or a situation where unlawful conduct has made it impossible to have the witness testify at trial. The Constitution provides that in these situations the law shall determine the scope of these exceptions.
The main objective of this broad reform effort was to assure the right of confrontation in the cases in which the statement is given by a co– accused. Article 500, section 3, which was just described as to the use of prior inconsistent statements against witnesses, also deals with the problem of the use of statements of an accomplice against a defendant. That section states if a co–accused during trial refuses to answer questions and exercises his or her right to remain silent, prior out–of–court statements of the alleged accomplice cannot be used as substantive evidence against the defendant (unless the defendant consents to such use).121
I'm pleased that you found this information. Some of this was reviewed in posts on JREF about 1 year ago or so; Mach maintained that the Italian judicial system was inquisitional, while I and some others maintained it was supposed to be, according to law and Italian Constitution, adversarial (It. Const. Art. 111). The problem is that many Italian judges have resisted following the new procedural laws, and continue to unfairly favor the prosecution over the defense, as occurred in the Massei, Chieffi CSC panel, and Nencini courts.
The changes in the Italian laws were driven in part by the ECHR and Committee of Ministers (the supervisory part of the Council of Europe, which oversees each respondent State in its actions following an ECHR judgment against it). The Luca v Italy case, 33354/96, and the Dorigo v Italy case, 33286/96, where Luca and Dorigo was each convicted by the pre-trial statements of a person (for Dorigo, several persons) who never agreed to be cross-examined were among the motivating factors. A quote from the Luca v Italy judgment:
The relevance to the AK - RS case is that use of a non-cross-examined statement, in the guise of a fast-track trial motivation report, is exactly what was done by Chieffi and Nencini. Marasca and Bruno discuss this issue regarding the Nencini judgment in their motivation report.
Last edited:
An ECHR case from Russia with some parallels to the AK - RS case regarding a suspect questioned as a witness and subjected to inhuman or degrading treatment during interrogation (although the treatment may be more severe):
FARTUSHIN v. RUSSIA 38887/09 08/10/2015
50. The Court emphasises the fundamental importance of the guarantees contained in Article 5 of the Convention for securing the right of individuals in a democracy to be free from arbitrary detention by the authorities. It has reiterated in that connection that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law, but must equally be in keeping with the very purpose of Article 5, namely, to protect the individual from arbitrariness. In order to minimise the risks of arbitrariness, Article 5 provides a corpus of substantive rights intended to ensure that the act of deprivation of liberty be amenable to independent judicial scrutiny and to secure the accountability of the authorities for that measure (see Kurt v. Turkey, 25 May 1998, §§ 122‑23, Reports of Judgments and Decisions 1998‑III, and Fatma Akaltun Fırat v. Turkey, no. 34010/06, § 29, 10 September 2013). The requirements of Article 5 §§ 3 and 4 with their emphasis on promptness and judicial control assume particular importance in this context (see Kurt, cited above, § 123). Prompt judicial intervention may lead to the detection and prevention of serious ill‑treatment which violates the fundamental guarantees contained in Article 3 of the Convention (see Aksoy v. Turkey, 18 December 1996, § 76, Reports 1996-VI). What is at stake is both the protection of the physical liberty of individuals as well as their personal security in a context which, in the absence of safeguards, could result in subversion of the rule of law and place detainees beyond the reach of the most rudimentary forms of legal protection (see Kurt, cited above, § 123).
51. The Court observes that the police had information that the applicant had allegedly been involved in the theft which they were investigating. Police officer V. requested the applicant by telephone to come to the police station for questioning. The applicant arrived at the police station at V.’s request at 2 p.m. on 5 May 2008. That fact is confirmed by the police station logbook and the witnesses (see paragraphs 8 and 24 above). The next trace of the applicant’s presence at the police station can be found in the record of his questioning by the investigator as a witness in the theft case (see paragraph 11 above) at midday the following day. According to the complaints lodged with the authorities by the applicant’s wife, his mother and his lawyer, the applicant was not released after entering the police station on 5 May 2008 (see paragraphs 10 and 19 above). The record of his arrest as a suspect was drawn up by the investigator at 8.20 p.m. on 6 May 2008 (see paragraph 13 above). The Court also observes that in the course of the official inquiry into the applicant’s criminal complaint of unlawful detention, the investigative authorities did not acknowledge that he had been detained continuously at the police station from 2 p.m. on 5 May 2008 until 8.20 p.m. on 6 May 2008, and their decision was fully endorsed by the domestic courts (see paragraph 30 above).
52. Having noted the Government’s acknowledgment of a violation of Article 5 in the present case, the Court finds it established that the applicant was detained at the police station continuously from 2 p.m. on 5 May 2008 until 8.20 p.m. on 6 May 2008, that is, for more than thirty hours. During that time he was interviewed by the police about his alleged involvement in the theft and was subjected to inhuman and degrading treatment in order to force him to confess to the theft (see paragraph 43 above).
53. The Court considers that although the applicant was detained from the very beginning as a suspect in a criminal case, his detention was not recorded as such until 8.20 p.m. on 6 May 2008. The lack of any acknowledgment or records of his detention as a suspect in the preceding period led to his being deprived of access to a lawyer and all other rights of a suspect, which meant that he was left completely at the mercy of those holding him. As such, he was vulnerable not only to arbitrary interference with his right to liberty but also to ill-treatment (see paragraph 43 above).
54. The Court finds that the applicant’s unrecorded detention was a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention, and was incompatible with the requirement of lawfulness and with the very purpose of Article 5. There has accordingly been a violation of this Article (see Belevitskiy v. Russia, no. 72967/01, §§ 82-85, 1 March 2007, and Aleksandr Sokolov v. Russia, no. 20364/05, §§ 70‑73, 4 November 2010, in which the Court found a violation in comparable circumstances involving unrecorded detention of persons suspected of having committed criminal offences; see also El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, §§ 236-237, ECHR 2012).
FARTUSHIN v. RUSSIA 38887/09 08/10/2015
50. The Court emphasises the fundamental importance of the guarantees contained in Article 5 of the Convention for securing the right of individuals in a democracy to be free from arbitrary detention by the authorities. It has reiterated in that connection that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law, but must equally be in keeping with the very purpose of Article 5, namely, to protect the individual from arbitrariness. In order to minimise the risks of arbitrariness, Article 5 provides a corpus of substantive rights intended to ensure that the act of deprivation of liberty be amenable to independent judicial scrutiny and to secure the accountability of the authorities for that measure (see Kurt v. Turkey, 25 May 1998, §§ 122‑23, Reports of Judgments and Decisions 1998‑III, and Fatma Akaltun Fırat v. Turkey, no. 34010/06, § 29, 10 September 2013). The requirements of Article 5 §§ 3 and 4 with their emphasis on promptness and judicial control assume particular importance in this context (see Kurt, cited above, § 123). Prompt judicial intervention may lead to the detection and prevention of serious ill‑treatment which violates the fundamental guarantees contained in Article 3 of the Convention (see Aksoy v. Turkey, 18 December 1996, § 76, Reports 1996-VI). What is at stake is both the protection of the physical liberty of individuals as well as their personal security in a context which, in the absence of safeguards, could result in subversion of the rule of law and place detainees beyond the reach of the most rudimentary forms of legal protection (see Kurt, cited above, § 123).
51. The Court observes that the police had information that the applicant had allegedly been involved in the theft which they were investigating. Police officer V. requested the applicant by telephone to come to the police station for questioning. The applicant arrived at the police station at V.’s request at 2 p.m. on 5 May 2008. That fact is confirmed by the police station logbook and the witnesses (see paragraphs 8 and 24 above). The next trace of the applicant’s presence at the police station can be found in the record of his questioning by the investigator as a witness in the theft case (see paragraph 11 above) at midday the following day. According to the complaints lodged with the authorities by the applicant’s wife, his mother and his lawyer, the applicant was not released after entering the police station on 5 May 2008 (see paragraphs 10 and 19 above). The record of his arrest as a suspect was drawn up by the investigator at 8.20 p.m. on 6 May 2008 (see paragraph 13 above). The Court also observes that in the course of the official inquiry into the applicant’s criminal complaint of unlawful detention, the investigative authorities did not acknowledge that he had been detained continuously at the police station from 2 p.m. on 5 May 2008 until 8.20 p.m. on 6 May 2008, and their decision was fully endorsed by the domestic courts (see paragraph 30 above).
52. Having noted the Government’s acknowledgment of a violation of Article 5 in the present case, the Court finds it established that the applicant was detained at the police station continuously from 2 p.m. on 5 May 2008 until 8.20 p.m. on 6 May 2008, that is, for more than thirty hours. During that time he was interviewed by the police about his alleged involvement in the theft and was subjected to inhuman and degrading treatment in order to force him to confess to the theft (see paragraph 43 above).
53. The Court considers that although the applicant was detained from the very beginning as a suspect in a criminal case, his detention was not recorded as such until 8.20 p.m. on 6 May 2008. The lack of any acknowledgment or records of his detention as a suspect in the preceding period led to his being deprived of access to a lawyer and all other rights of a suspect, which meant that he was left completely at the mercy of those holding him. As such, he was vulnerable not only to arbitrary interference with his right to liberty but also to ill-treatment (see paragraph 43 above).
54. The Court finds that the applicant’s unrecorded detention was a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention, and was incompatible with the requirement of lawfulness and with the very purpose of Article 5. There has accordingly been a violation of this Article (see Belevitskiy v. Russia, no. 72967/01, §§ 82-85, 1 March 2007, and Aleksandr Sokolov v. Russia, no. 20364/05, §§ 70‑73, 4 November 2010, in which the Court found a violation in comparable circumstances involving unrecorded detention of persons suspected of having committed criminal offences; see also El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, §§ 236-237, ECHR 2012).
An ECHR case from Russia with some parallels to the AK - RS case regarding a suspect questioned as a witness and subjected to inhuman or degrading treatment during interrogation and not provided a lawyer during the interrogation (although the treatment may be more severe than in the AK - RS case).
ECHR judgment: Violations of Articles 3 and 5 of the Convention.
FARTUSHIN v. RUSSIA 38887/09 08/10/2015
51. The Court observes that the police had information that the applicant had allegedly been involved in the theft which they were investigating. Police officer V. requested the applicant by telephone to come to the police station for questioning. The applicant arrived at the police station at V.’s request at 2 p.m. on 5 May 2008. That fact is confirmed by the police station logbook and the witnesses.... . The next trace of the applicant’s presence at the police station can be found in the record of his questioning by the investigator as a witness in the theft case at midday the following day. ....The record of his arrest as a suspect was drawn up by the investigator at 8.20 p.m. on 6 May 2008 .....
52. Having noted the Government’s acknowledgment of a violation of Article 5 in the present case, the Court finds it established that the applicant was detained at the police station continuously from 2 p.m. on 5 May 2008 until 8.20 p.m. on 6 May 2008, that is, for more than thirty hours. During that time he was interviewed by the police about his alleged involvement in the theft and was subjected to inhuman and degrading treatment in order to force him to confess to the theft....
53. The Court considers that although the applicant was detained from the very beginning as a suspect in a criminal case, his detention was not recorded as such until 8.20 p.m. on 6 May 2008. The lack of any acknowledgment or records of his detention as a suspect in the preceding period led to his being deprived of access to a lawyer and all other rights of a suspect, which meant that he was left completely at the mercy of those holding him. As such, he was vulnerable not only to arbitrary interference with his right to liberty but also to ill-treatment....
54. The Court finds that the applicant’s unrecorded detention was a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention, and was incompatible with the requirement of lawfulness and with the very purpose of Article 5. There has accordingly been a violation of this Article....
ECHR judgment: Violations of Articles 3 and 5 of the Convention.
FARTUSHIN v. RUSSIA 38887/09 08/10/2015
51. The Court observes that the police had information that the applicant had allegedly been involved in the theft which they were investigating. Police officer V. requested the applicant by telephone to come to the police station for questioning. The applicant arrived at the police station at V.’s request at 2 p.m. on 5 May 2008. That fact is confirmed by the police station logbook and the witnesses.... . The next trace of the applicant’s presence at the police station can be found in the record of his questioning by the investigator as a witness in the theft case at midday the following day. ....The record of his arrest as a suspect was drawn up by the investigator at 8.20 p.m. on 6 May 2008 .....
52. Having noted the Government’s acknowledgment of a violation of Article 5 in the present case, the Court finds it established that the applicant was detained at the police station continuously from 2 p.m. on 5 May 2008 until 8.20 p.m. on 6 May 2008, that is, for more than thirty hours. During that time he was interviewed by the police about his alleged involvement in the theft and was subjected to inhuman and degrading treatment in order to force him to confess to the theft....
53. The Court considers that although the applicant was detained from the very beginning as a suspect in a criminal case, his detention was not recorded as such until 8.20 p.m. on 6 May 2008. The lack of any acknowledgment or records of his detention as a suspect in the preceding period led to his being deprived of access to a lawyer and all other rights of a suspect, which meant that he was left completely at the mercy of those holding him. As such, he was vulnerable not only to arbitrary interference with his right to liberty but also to ill-treatment....
54. The Court finds that the applicant’s unrecorded detention was a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention, and was incompatible with the requirement of lawfulness and with the very purpose of Article 5. There has accordingly been a violation of this Article....
Last edited:
anglolawyer
Banned
Thanks for posting that (twice) NUmbers. Can you extract the point of the case in a few brief sentences? Thanks.
Modified the 2nd of the earlier posts to emphasize some main points.
(The duplicate posts were due to my attempt to remedy an apparent technical problem in posting that apparently wasn't "real".)
anglolawyer
Banned
Ours is not a case of unrecorded detention, Numbers.
- Status