Continuation Part 21: Amanda Knox/Raffaele Sollecito

[Numbers]

I think he was also clear that Amanda's constitutional rights were not safeguarded and that the police and PM were not to be believed in their description of the interrogation. His pointed reference of the minutes recorded by the police as obviously too short for the duration of such an interview is telling. He was not in position to toss the callunia charge involving Patrick but it's clear to me that if he could, he would.

Yes, thanks for those additions. I was focusing on the issues probably most directly relevant to the potential for the Boninsegna MR being the basis for a revision trial. Boninsegna is to be commended as the only judge that raised issues of violations of the Italian Constitution in this case. Even so, from my viewpoint he was a bit too obscure in not calling out specific acts or failures to act by the authorities as violations of the Constitution.

 

[acbytesla]

Yes, thanks for those additions. I was focusing on the issues probably most directly relevant to the potential for the Boninsegna MR being the basis for a revision trial. Boninsegna is to be commended as the only judge that raised issues of violations of the Italian Constitution in this case. Even so, from my viewpoint he was a bit too obscure in not calling out specific acts or failures to act by the authorities as violations of the Constitution.

I wouldn't say that

Situations of this kind concern personal freedom as a fundamental and unshakable right of the individual (Constitution, article 13), a direct logical and legal consequence of the recognition of the fundamental human rights, both as those of a single human being and in the context of the society in which he or she lives (Constitution, article 2). Situations also connected to the ultimate recognition of the equal level of dignity between individual subjects - also in a context like the case here discussed and meant as a sum of rights and duties - and the authority of the State (Constitution, article 3).

Even more than that, this system of recognised individualities and of their interrelationships, includes also all the relationships between the citizen and the State, from a perspective shunning authoritarianism, which instead unilaterally privileges the State, with various justifications

The overall picture thus outlined is described with extreme lucidity by the referenced articles of the Constitution, to which article 111 must also be added. The latter gives a sense of finality to the individual/State relationship in the particular case of the management of a criminal trial. Said management requires nothing more than the recognition of and the compliance with the mentioned dispositions of law, with the further goal of the observance also of the transparency of the individual/State relationships, besides that of the individual

From there comes the further systemic corollary, deriving from the rejection of an authoritarian slant in the relationship we are talking about, of accepting the risk of setting a culprit free, rather than convicting an innocent, as per article 27/2 of the Constitution. This implies that there must be a sure reliance on the shared rules, which must be prized and applied as binding norms by everyone, including the leading actors in criminal proceedings.

From there further derives the need to avoid any hypocrisy, consisting of a merely formal adoption of said rules, which would be in reality freely transgressed by the public actors, albeit in a pleasing and apparently non-violent way, as well as with the justification of the pursuit of the public interest, namely the repression of crimes in this case. Such a pretense would do nothing else than reintroduce, in the substance, the authoritarian nature of the procedural relationship under discussion, while apparently and only formally following the opposite path, but in truth neglecting it.

In this specific case, all the described principles would certainly have been compromised overall by investigators and auxiliary personnel who had let themselves loose with extemporary and misguided displays of emotionality. As such, said behaviour is uncontrollable and ambiguous, in itself a product, and at the same time a source, of arbitrary, and hence discriminatory, decisions in the management of the situation, which are incompatible with the principles of equality and equal human dignity. Therefore said behaviour also leads unavoidably to a violation of the right of defense and it stands out as a sheer, but sterile - as it in the end was exposed to be - pursuit of a public interest, thought to be - debatably, as said above - dominant: the prosecution of the crime at any cost, considered at that time a goal preeminent above any other. The outcome being the ultimate neglect of the principle expressed by the so called presumption of innocence.
This is what, indeed, unquestionably happened in the case in question.

The compliance with all the rules governing the investigations, and nothing else, was all that was demanded, but those limits were trespassed, causing the corruption of the procedures, which ultimately led to their being deemed invalid, as established by the judgment of legitimacy.

 

[Planigale]

I would disagree. I think Knox committed a callunia. This is an honour crime which there is not a clear equivalent for in the UK or US. The nearest equivalent is criminal slander where accusing someone of a crime (falsely), was potentially a crime.

Knox did accuse Lumumba pdf participation in a crime. She claimed falsely knowledge she did not have. I think it is irrelevant whether she made the accusation as part of an interview as a witness, or whether she was being interviewed as a suspect.

Personally I think that her defence was that the memory was constructed by the police interviewing technique. The problem for the defence was the focus was on the murder conviction, and the joint trial. The courts including Helman (wrongly imho) failed to accept the concept of induced false memory, and the defence failed to aggressively argue it (this may well be a concept not accepted in Italian courts).

In summary
1) Knox did commit callunia.
2) I think she had a justifiable defence that the interview process forced this memory on her - this was never strongly argued - and not accepted as a defence.
3) Her rights to a lawyer were breached.
4) The Italian state failed to investigate her claims of abuse during the interview process.
5) The Italian state will pay compensation and accept a breach of Knox's right to a lawyer and failure to investigate her claim of abuse.
6) The Italian state will carry out an investigation of her claim of abuse - it will get nowhere, due to poor records and statute of limitation issues.
7) The callunia conviction will unjustly stand.

 

[bagels]

If someone slaps you until you say the right thing, it is not a voluntary statement.

 

[Desert Fox]

If someone slaps you until you say the right thing, it is not a voluntary statement.

But is was only a light slap

 

[Planigale]

If someone slaps you until you say the right thing, it is not a voluntary statement.

That is certainly a defence. One the courts decided not to accept. One can argue the accusation should've been investigated but it wasn't.

 

[acbytesla]

I would disagree. I think Knox committed a callunia. This is an honour crime which there is not a clear equivalent for in the UK or US. The nearest equivalent is criminal slander where accusing someone of a crime (falsely), was potentially a crime.

Knox did accuse Lumumba pdf participation in a crime. She claimed falsely knowledge she did not have. I think it is irrelevant whether she made the accusation as part of an interview as a witness, or whether she was being interviewed as a suspect.

Personally I think that her defence was that the memory was constructed by the police interviewing technique. The problem for the defence was the focus was on the murder conviction, and the joint trial. The courts including Helman (wrongly imho) failed to accept the concept of induced false memory, and the defence failed to aggressively argue it (this may well be a concept not accepted in Italian courts).

In summary
1) Knox did commit callunia.
2) I think she had a justifiable defence that the interview process forced this memory on her - this was never strongly argued - and not accepted as a defence.
3) Her rights to a lawyer were breached.
4) The Italian state failed to investigate her claims of abuse during the interview process.
5) The Italian state will pay compensation and accept a breach of Knox's right to a lawyer and failure to investigate her claim of abuse.
6) The Italian state will carry out an investigation of her claim of abuse - it will get nowhere, due to poor records and statute of limitation issues.
7) The callunia conviction will unjustly stand.

A little devil's advocate. I like it. But you yourself have conceded enough for the ruling to be quashed.

1) Knox did commit callunia.
Italian jurisprudence is a bit strange so you might be right. But in the US, even if that was a crime which it is not, there would be no way to convict her of that from the statements. Amanda expresses far too much doubt of her own memory in the statements themselves to take them seriously.
2) I think she had a justifiable defence that the interview process forced this memory on her - this was never strongly argued - and not accepted as a defence.
How strongly do you want them to argue this. The had motions not to hear it and the Gemelli CSC ruled that Amanda's statements from the interrogation could not be used against her. I still can't get over how the CSC could make that ruling and yet the statements are the only evidence pointing to callunia.
3) Her rights to a lawyer were breached.
Yes
4) The Italian state failed to investigate her claims of abuse during the interview process.
yes
5) The Italian state will pay compensation and accept a breach of Knox's right to a lawyer and failure to investigate her claim of abuse.
Yes
6) The Italian state will carry out an investigation of her claim of abuse - it will get nowhere, due to poor records and statute of limitation issues.
No they won't.
7) The callunia conviction will unjustly stand
No, it can't. Not with the other things you accept. Fruit of the poisonous tree. She has them over a barrel and she shouldn't settle for that. Full 100 percent exoneration is the necessary resolution.
The callunia ruling against Knox will be set aside and a new trial will be ordered at which point the case will be dismissed due to lack of evidence.

 

[Bill Williams]

I would disagree. I think Knox committed a callunia. This is an honour crime which there is not a clear equivalent for in the UK or US. The nearest equivalent is criminal slander where accusing someone of a crime (falsely), was potentially a crime.

Knox did accuse Lumumba pdf participation in a crime. She claimed falsely knowledge she did not have.

<............ sinister deletia ..............>​

In summary
1) Knox did commit callunia.
2) I think she had a justifiable defence that the interview process forced this memory on her - this was never strongly argued - and not accepted as a defence.
3) Her rights to a lawyer were breached.
4) The Italian state failed to investigate her claims of abuse during the interview process.
5) The Italian state will pay compensation and accept a breach of Knox's right to a lawyer and failure to investigate her claim of abuse.
6) The Italian state will carry out an investigation of her claim of abuse - it will get nowhere, due to poor records and statute of limitation issues.
7) The callunia conviction will unjustly stand.

This was, essentially, my position with regards to calunnia until I read Mignini's own account of the interrogation - and it was clear that either:

1) it was he who was lying through his teeth, or
2) it was he who was playing fast and loose with the timing of when a lawyer and actual competent, independent translator actually started their work in the presence of the suspect.​

It was clear that he was using the charge-approval levers at his disposal to up the pressure on Knox, and particularly on to Sollecito - all the way to charging Raffaele with the whole shooting match, simply for not turning on Knox.

 

[bagels]

That is certainly a defence. One the courts decided not to accept. One can argue the accusation should've been investigated but it wasn't.

She did raise it, in her testimony, and was sued for having the nerve to do so.

 

[Numbers]

I would disagree. I think Knox committed a callunia. This is an honour crime which there is not a clear equivalent for in the UK or US. The nearest equivalent is criminal slander where accusing someone of a crime (falsely), was potentially a crime.

Knox did accuse Lumumba pdf participation in a crime. She claimed falsely knowledge she did not have. I think it is irrelevant whether she made the accusation as part of an interview as a witness, or whether she was being interviewed as a suspect.

Personally I think that her defence was that the memory was constructed by the police interviewing technique. The problem for the defence was the focus was on the murder conviction, and the joint trial. The courts including Helman (wrongly imho) failed to accept the concept of induced false memory, and the defence failed to aggressively argue it (this may well be a concept not accepted in Italian courts).

In summary
1) Knox did commit callunia.
2) I think she had a justifiable defence that the interview process forced this memory on her - this was never strongly argued - and not accepted as a defence.
3) Her rights to a lawyer were breached.
4) The Italian state failed to investigate her claims of abuse during the interview process.
5) The Italian state will pay compensation and accept a breach of Knox's right to a lawyer and failure to investigate her claim of abuse.
6) The Italian state will carry out an investigation of her claim of abuse - it will get nowhere, due to poor records and statute of limitation issues.
7) The callunia conviction will unjustly stand.

The calunnia conviction can only stand it Italy defies the final judgment of the ECHR that it had violated Knox's rights and her trial was unfair (the judgment that, based on ECHR case-law, many of us are confident will be the result in this case).

If Italy does defy the ECHR in this case, it will result in another case against them (if Knox chooses to pursue it; there is only the cost of lawyers, which is compensated by Italy each time it loses) and she will be compensated for the new violation of her rights, and Italy will be put under pressure by the Council of Europe Committee of Ministers to meet its solemn treaty obligations.

 

[Numbers]

She did raise it, in her testimony, and was sued for having the nerve to do so.

She was, in fact, criminally charged with calunnia against the police, as well as sued for defamation.

She was acquitted of the criminal charges and the civil liability by the Boninsegna court verdict and motivation report. To my knowledge, that verdict of acquittal is now final and definitive, because the prosecution did not appeal within the time limit.

 

[acbytesla]

She was, in fact, criminally charged with calunnia against the police, as well as sued for defamation.

She was acquitted of the criminal charges and the civil liability by the Boninsegna court verdict and motivation report. To my knowledge, that verdict of acquittal is now final and definitive, because the prosecution did not appeal within the time limit.

It is this reason that I am extremely confident the previous callunia case involving Lumumba will be overturned as the reasoning is identical. One could cut and paste from the Boninsegna Motivation. Not a word from those interrogations should have been heard by a jury in a courtroom which eliminates any crimes of callunia.

 

[Planigale]

It is this reason that I am extremely confident the previous callunia case involving Lumumba will be overturned as the reasoning is identical. One could cut and paste from the Boninsegna Motivation. Not a word from those interrogations should have been heard by a jury in a courtroom which eliminates any crimes of callunia.

But ECHR is not considering the callunia. It is considering her case against Italy for breach of her right to a lawyer (amongst other issues). I am certain she will win this, and be offered compensation, I suspect Italy will fold before the case is judged and offer compensation.

It is possible that the court will recommend a retrial on the callunia, with all but the first statement excluded. This will automatically fall because of the statute of limitations. So there will be no judgement. I do not know what will happen with regards to the civil case. If there is a 'friendly' settlement I do not think the Italian state has a way to dismiss a final conviction and retry. This might happen if it goes to judgment. The court prefers settlements, Italy will prefer a settlement and at the end of the day Knox might do so given the certainties and finalities of a deal versus pursuing the case. A settlement might include Italy agreeing to accept responsibility for the compensation due Lumumba (who is I feel entitled to some compensation for his period in jail and loss of his business).

 

[acbytesla]

But ECHR is not considering the callunia. It is considering her case against Italy for breach of her right to a lawyer (amongst other issues). I am certain she will win this, and be offered compensation, I suspect Italy will fold before the case is judged and offer compensation.

It is possible that the court will recommend a retrial on the callunia, with all but the first statement excluded. This will automatically fall because of the statute of limitations. So there will be no judgement. I do not know what will happen with regards to the civil case. If there is a 'friendly' settlement I do not think the Italian state has a way to dismiss a final conviction and retry. This might happen if it goes to judgment. The court prefers settlements, Italy will prefer a settlement and at the end of the day Knox might do so given the certainties and finalities of a deal versus pursuing the case. A settlement might include Italy agreeing to accept responsibility for the compensation due Lumumba (who is I feel entitled to some compensation for his period in jail and loss of his business).

You're right that the ECHR is not considering callunia but reviewing if Knox's rights were violated during the interrogation. Why the Boninsegna ruling is important is that he ruled in Knox's favor on the callunia against the police because Knox's rights were violated during the interrogation.
This is what Boninsegna said about the interrogation.

The compliance with all the rules governing the investigations, and nothing else, was all that was demanded, but those limits were trespassed, causing the corruption of the procedures, which ultimately led to their being deemed invalid, as established by the judgment of legitimacy.

Italy will have no choice and I don't think Knox should negotiate for anything less than a dismissal of the callunia charges. The bastards put her in prison for 4 years for something she didn't do. She'll never get back the years they took so now they must pay.

 

[Numbers]

But ECHR is not considering the callunia. It is considering her case against Italy for breach of her right to a lawyer (amongst other issues). I am certain she will win this, and be offered compensation, I suspect Italy will fold before the case is judged and offer compensation.

It is possible that the court will recommend a retrial on the callunia, with all but the first statement excluded. This will automatically fall because of the statute of limitations. So there will be no judgement. I do not know what will happen with regards to the civil case. If there is a 'friendly' settlement I do not think the Italian state has a way to dismiss a final conviction and retry. This might happen if it goes to judgment. The court prefers settlements, Italy will prefer a settlement and at the end of the day Knox might do so given the certainties and finalities of a deal versus pursuing the case. A settlement might include Italy agreeing to accept responsibility for the compensation due Lumumba (who is I feel entitled to some compensation for his period in jail and loss of his business).

Planigale, to be more accurate, what ECHR has under review in this case includes the conviction for calunnia and whether this conviction was unfair and a violation of Amanda's rights.

If the ECHR judges that the conviction for calunnia was unfair as, for example, a result of a violation of Articles 6.3c with 6.1 or of the substantive branch of Article 3 or if the ECHR rules that her statements resulted from coercion even though there was no definitive evidence of inhuman or degrading treatment, the ECHR will indicate that Italy must allow a new trial conducted with Convention rights fully respected if requested by the applicant (Amanda). This would exclude from the trial all statements gathered into evidence unfairly under ECHR case-law.

Italian law provides for a "revision trial" at the request a convicted person, or the prosecution, if there is certain indications that the conviction was a miscarriage of justice (CPP Articles 629 and 630, Constitutional Court judgment 113/2011). There is no statute of limitations which applies to a request for a revision trial or the trial itself (CPP Article 629), which includes an evaluation of the alleged miscarriage of justice elements.

None of the oral or written statements Amanda made from the start of the interrogation on Nov. 5, and before her first consultation with a lawyer on Nov. 8, immediately prior to the arrest hearing (her speaking to a lawyer or any other person having been unfairly denied by the Italian authorities during the relevant period) may be used to convict her of any crime, according to ECHR case-law.

 

[Kauffer]

But ECHR is not considering the callunia. It is considering her case against Italy for breach of her right to a lawyer (amongst other issues). I am certain she will win this, and be offered compensation, I suspect Italy will fold before the case is judged and offer compensation.

It is possible that the court will recommend a retrial on the callunia, with all but the first statement excluded. This will automatically fall because of the statute of limitations. So there will be no judgement. I do not know what will happen with regards to the civil case. If there is a 'friendly' settlement I do not think the Italian state has a way to dismiss a final conviction and retry. This might happen if it goes to judgment. The court prefers settlements, Italy will prefer a settlement and at the end of the day Knox might do so given the certainties and finalities of a deal versus pursuing the case. A settlement might include Italy agreeing to accept responsibility for the compensation due Lumumba (who is I feel entitled to some compensation for his period in jail and loss of his business).

I think you have slightly misunderstood the issues.

1) The ECHR is considering the question of whether or not Knox's right to a fair trial for callunia was breached in respect of an alleged denial of her procedural rights together with claims under two other articles, one of which, (art 3), if upheld, will also be deemed to have breached her right to a fair trial. So, Knox's essential claim is more than simply a 'breach of her right to a lawyer'; it is that the callunia trial was unfair. The denial of a lawyer was, it is claimed, one of the means by which the police caused the trial to be unfair.

2) If the callunia trial is found unfair as a result of the denial of Knox's right to counsel, then all statements, which were the product not just of a particular interrogation, but of the entire time she was denied counsel will be unusable, contradicting the Gemelli court. In Salduz v Turkey, the court held that .."the restriction [of counsel] should not unduly prejudice the rights of the defence, which would be the case where incriminating statements made during a police interview without access to a lawyer were used as a basis for a conviction." In Zaichenko v Russia, the court stated: "Bearing in mind the concept of fairness in Article 6, the Court considers that the right not to incriminate oneself cannot reasonably be confined to statements of admission of wrongdoing or to remarks which are directly incriminating.... Testimony obtained under compulsion which appears on its face to be of a non-incriminating nature - such as exculpatory remarks or mere information on questions of fact - may later be deployed in criminal proceedings in support of the prosecution case, for example to contradict or cast doubt upon other statements of the accused or evidence given by him during the trial or to otherwise undermine his credibility."

3) If the callunia trial is found unfair as a result of a denial of Knox's right to counsel or because of inhuman and degrading treatment, then certain responses by the Committee of Ministers at the Council of Europe and from Italy will be triggered.

4) Whilst the court limits itself to ordering compensation payments or "just satisfaction", yet it is the Committee of Ministers, which is charged with ensuring that "individual measures have been taken to ensure that the violation has ceased and that the injured party is put, as far as possible, in the same situation as that party enjoyed prior to the violation of the Convention". Indeed, the court itself may remark that in its view the re-opening of domestic proceedings is the most suitable method available to Italy for remedying the breach of Knox's rights under the convention following the principle of restituto in integrum. But it will not order or even recommend a retrial; indeed, as you point out, a retrial is not possible: "The European Court is...badly placed to make such an assessment, which presupposes a relatively detailed knowledge of the domestic order in question". And: "...it is for the competent authorities of the respondent State to decide what measures are most appropriate to achieve restitutio in integrum, taking into account the means available under the national legal system. Bearing in mind, however, that the practice of the Committee of Ministers in supervising the execution of the Court’s judgments shows that in exceptional circumstances the re-examination of a case or a reopening of proceedings has proved the most efficient, if not the only, means of achieving restitutio in integrum."

http://www.echr.coe.int/LibraryDocs/DG2/HRFILES/DG2-EN-HRFILES-19(2002).pdf

5) Italy has already determined that no guilty verdict can survive a finding of a violation of Article 6 and so proceedings will indeed be re-opened. The verdict will be vacated according to Italian law. However, since no evidence against Knox will remain and because the statute of limitations will ensure that no further trial can take place, the charge will be dropped and she will have been acquitted. The civil case will similarly be dispensed with as the judgement here will also be vacated. Lumumba's remedy is to pursue a claim against Italy, to the extent he is able to do so.

6) It would appear that a friendly settlement would not permit the reopening of domestic proceedings since a judgement by the ECHR is predicated on it. (A finding of an Article 6 violation).

 

[Numbers]

I think you have slightly misunderstood the issues.

1) The ECHR is considering the question of whether or not Knox's right to a fair trial for callunia was breached in respect of an alleged denial of her procedural rights together with claims under two other articles, one of which, (art 3), if upheld, will also be deemed to have breached her right to a fair trial. So, Knox's essential claim is more than simply a 'breach of her right to a lawyer'; it is that the callunia trial was unfair. The denial of a lawyer was, it is claimed, one of the means by which the police caused the trial to be unfair.

2) If the callunia trial is found unfair as a result of the denial of Knox's right to counsel, then all statements, which were the product not just of a particular interrogation, but of the entire time she was denied counsel will be unusable, contradicting the Gemelli court. In Salduz v Turkey, the court held that .."the restriction [of counsel] should not unduly prejudice the rights of the defence, which would be the case where incriminating statements made during a police interview without access to a lawyer were used as a basis for a conviction." In Zaichenko v Russia, the court stated: "Bearing in mind the concept of fairness in Article 6, the Court considers that the right not to incriminate oneself cannot reasonably be confined to statements of admission of wrongdoing or to remarks which are directly incriminating.... Testimony obtained under compulsion which appears on its face to be of a non-incriminating nature - such as exculpatory remarks or mere information on questions of fact - may later be deployed in criminal proceedings in support of the prosecution case, for example to contradict or cast doubt upon other statements of the accused or evidence given by him during the trial or to otherwise undermine his credibility."

3) If the callunia trial is found unfair as a result of a denial of Knox's right to counsel or because of inhuman and degrading treatment, then certain responses by the Committee of Ministers at the Council of Europe and from Italy will be triggered.

4) Whilst the court limits itself to ordering compensation payments or "just satisfaction", yet it is the Committee of Ministers, which is charged with ensuring that "individual measures have been taken to ensure that the violation has ceased and that the injured party is put, as far as possible, in the same situation as that party enjoyed prior to the violation of the Convention". Indeed, the court itself may remark that in its view the re-opening of domestic proceedings is the most suitable method available to Italy for remedying the breach of Knox's rights under the convention following the principle of restituto in integrum. But it will not order or even recommend a retrial; indeed, as you point out, a retrial is not possible: "The European Court is...badly placed to make such an assessment, which presupposes a relatively detailed knowledge of the domestic order in question". And: "...it is for the competent authorities of the respondent State to decide what measures are most appropriate to achieve restitutio in integrum, taking into account the means available under the national legal system. Bearing in mind, however, that the practice of the Committee of Ministers in supervising the execution of the Court’s judgments shows that in exceptional circumstances the re-examination of a case or a reopening of proceedings has proved the most efficient, if not the only, means of achieving restitutio in integrum."

http://www.echr.coe.int/LibraryDocs/DG2/HRFILES/DG2-EN-HRFILES-19(2002).pdf

5) Italy has already determined that no guilty verdict can survive a finding of a violation of Article 6 and so proceedings will indeed be re-opened. The verdict will be vacated according to Italian law. However, since no evidence against Knox will remain and because the statute of limitations will ensure that no further trial can take place, the charge will be dropped and she will have been acquitted. The civil case will similarly be dispensed with as the judgement here will also be vacated. Lumumba's remedy is to pursue a claim against Italy, to the extent he is able to do so.

6) It would appear that a friendly settlement would not permit the reopening of domestic proceedings since a judgement by the ECHR is predicated on it. (A finding of an Article 6 violation).

Kauffer, your comments are correct over-all. There are a few areas where some there should be some clarification or expansion.

While the ECHR may indicate that a retrial at the request of the applicant is one of its "suggested" remedies, the nature of the retrial is dependent on domestic - in this case, Italian - law. Italy has resolved the issue of "retrial" when it must comply with a final judgment from the ECHR which, by treaty, compels the reopening of proceedings. The resolution is by means of the previously established "revision trial" which Italy had previously established to address certain cases of alleged miscarriage of justice. An Italian Constitutional Court decision (113/2011) has made this the avenue of "retrial" when Italy is required to reopen proceedings by an ECHR final judgment.

Friendly settlements do not exclude possible actions by the State, such as committing to a "retrial". However, in a case where a State agrees there has been certain violations of rights, but the ECHR finds that a friendly settlement does not fully redress the violations, ECHR will note that the State admits the violations and issue a judgment indicating those admissions, thereby allowing the ECHR to declare violations and proposed remedies.

 

[Kauffer]

Kauffer, your comments are correct over-all. There are a few areas where some there should be some clarification or expansion.

While the ECHR may indicate that a retrial at the request of the applicant is one of its "suggested" remedies, the nature of the retrial is dependent on domestic - in this case, Italian - law. Italy has resolved the issue of "retrial" when it must comply with a final judgment from the ECHR which, by treaty, compels the reopening of proceedings. The resolution is by means of the previously established "revision trial" which Italy had previously established to address certain cases of alleged miscarriage of justice. An Italian Constitutional Court decision (113/2011) has made this the avenue of "retrial" when Italy is required to reopen proceedings by an ECHR final judgment.

Friendly settlements do not exclude possible actions by the State, such as committing to a "retrial". However, in a case where a State agrees there has been certain violations of rights, but the ECHR finds that a friendly settlement does not fully redress the violations, ECHR will note that the State admits the violations and issue a judgment indicating those admissions, thereby allowing the ECHR to declare violations and proposed remedies.

On the first point, is the language of 113 a "retrial" or "re-opening of proceedings" or something similar? There cannot be a new trial as such as there will be no evidence and it will be out of time, but a revision process of course. The language used by COE in Dorigo was "reopening of proceedings". Couldn't that just be an administrative process?

On the friendly settlement, my understanding was that either the ECHR rules OR there is a settlement but not both. My point with a settlement is that 113 appears to require an Art 6 ruling by the ECHR, so a settlement is not possible. Your reference to the outcome you describe is predicated on an admission by Italy in its response to the ECHR enquiry going on now followed by the imposition of a judgement. That doesn't look like a friendly settlement, which is something negotiated it seems, after the responses have been received - ie. a next stage.

Do you have any cases where a respondent country has fallen on its sword in its response? Or something that models your suggested possible outcome?

 

[Bill Williams]

Why do they go to such lengthy trials and spend huge amounts on court costs only to let Rudy Guede, a rapist-murderer, go free after a few short years?Why does Italy give him a free college degree for murdering and raping and burglary?
How does this Italian approach help prevent more murders and rapes in Italy?

It seems from here Italy is more concerned with the rapist/murderering predators than the victims and future victims. wow?

Even lawyers need to eat, even if on the public purse. If it had not worked out this way, imagine all the lawyers out on the street - driving taxi or such.

 

[Numbers]

On the first point, is the language of 113 a "retrial" or "re-opening of proceedings" or something similar? There cannot be a new trial as such as there will be no evidence and it will be out of time, but a revision process of course. The language used by COE in Dorigo was "reopening of proceedings". Couldn't that just be an administrative process?

On the friendly settlement, my understanding was that either the ECHR rules OR there is a settlement but not both. My point with a settlement is that 113 appears to require an Art 6 ruling by the ECHR, so a settlement is not possible. Your reference to the outcome you describe is predicated on an admission by Italy in its response to the ECHR enquiry going on now followed by the imposition of a judgement. That doesn't look like a friendly settlement, which is something negotiated it seems, after the responses have been received - ie. a next stage.

Do you have any cases where a respondent country has fallen on its sword in its response? Or something that models your suggested possible outcome?

My understanding is that a "revision trial" is a proceeding that evaluates the allegations of the miscarriage, and whether those allegations are credible or proven and whether if proven by the evidence introduced with the allegations the weight of the new evidence or allegations compared to the convicting trial evidence can change the verdict of conviction or the sentence.

There are rules in the CPP on what constitutes grounds for requesting revision (in CPP 630). These did not include the finding of a violation of Article 6 by the ECHR, etc. That is why the Italian Constitutional Court had to issue decision 113/2011 -- the Italian parliament did not act on the matter when it was really the branch to add the provision to the law.

I've read cases where the Respondent State admitted to some of the allegations against it but claimed the just satisfaction proposed by the applicant was too high.

I am sure a friendly settlement may involve more than compensation; some acknowledgement of the violations must be made by the State. I agree that a friendly settlement would not by itself seem to produce a revision trial in Italy under their law, and I think the ECHR would not allow a friendly settlement in this case even if Italy admitted to all violations claimed. The ECHR would not allow a friendly settlement if Amanda claimed she should be acquitted and the settlement did not allow that, assuming of course that ECHR found Italy in violation of Article 3 and/or 6 in accordance with the allegations in this case.