The exoneration - final and definitive acquittal - of Knox and Sollecito by the Italian Supreme Court of Cassation has ended for all time all potential legal actions, criminal or civil, against them for the murder/rape of Meredith Kercher. Legal actions that remain open include requests by Knox and Sollecito to the Italian authorities for compensation for wrongful detention.
In addition, Knox has lodged a complaint before the European Court of Human Rights alleging that Italy violated her Convention rights by convicting her of calunnia against Patrick Lumumba. Among other things, she complained that statements that she made under interrogation without a lawyer were used to secure her conviction.
An ECHR judgment of interest, relating to denial of counsel during interrogation:
SITNEVSKIY AND CHAYKOVSKIY v. UKRAINE 48016/06 7817/07 10/11/2016
Briefly, relevant to the AK - RS case, the ECHR found a violation of Article 6 §§ 1 and 3 (c) of the Convention for the first applicant. The first applicant had been held as a suspect in relation to a certain crimes and signed a waiver of counsel. However, following interrogations, he was charged with a more serious crime, attempted murder or murder, which under Ukraine law required that he be given counsel, and he was assigned a lawyer. His statements from the period prior to his having a lawyer was used, in part, to convict him of attempted murder and murder. The ECHR judged that use of those statements constituted a violation of Convention Article 6.1 with 6.3c.
In its written judgment, the ECHR reiterated the following points of its case-law:
62. When examining the proceedings as a whole in order to assess the impact of procedural failings at the pre-trial stage on the overall fairness of the criminal proceedings, the following non-exhaustive list of factors, drawn from the Court’s case‑law, should, where appropriate, be taken into account:
(a) Whether the applicant was particularly vulnerable, for example, by reason of his age or mental capacity.
(b) The legal framework governing the pre-trial proceedings and the admissibility of evidence at trial, and whether it was complied with; where an exclusionary rule applied, it is particularly unlikely that the proceedings as a whole would be considered unfair.
(c) Whether the applicant had the opportunity to challenge the authenticity of the evidence and oppose its use.
(d) The quality of the evidence and whether the circumstances in which it was obtained cast doubt on its reliability or accuracy, taking into account the degree and nature of any compulsion.
(e) Where evidence was obtained unlawfully, the unlawfulness in question and, where it stems from a violation of another Convention Article, the nature of the violation found.
(f) In the case of a statement, the nature of the statement and whether it was promptly retracted or modified.
(g) The use to which the evidence was put, and in particular whether the evidence formed an integral or significant part of the probative evidence upon which the conviction was based, and the strength of the other evidence in the case.
(h) Whether the assessment of guilt was performed by professional judges or lay jurors, and in the case of the latter the content of any jury directions.
(i) The weight of the public interest in the investigation and punishment of the particular offence in issue.
(j) Other relevant procedural safeguards afforded by domestic law and practice (ibid., 274).
63. Neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, his entitlement to the guarantees of a fair trial. However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance. Furthermore, it must not run counter to any important public interest (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006‑II). For a waiver to be effective it must be shown that the applicant could reasonably have foreseen the consequences of his conduct (see, mutatis mutandis, Idalov v. Russia [GC], no. 5826/03, § 173, 22 May 2012). The right to counsel, being a fundamental right among those which constitute the notion of a fair trial and ensuring the effectiveness of the rest of the guarantees set forth in Article 6 of the Convention, is a prime example of those rights which require the special protection of the “knowing and intelligent waiver” standard established in the Court’s case-law (see Dvorski v. Croatia [GC], no. 25703/11, § 101, ECHR 2015).
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Here is some analysis of what the case cited above and similar cases mean to Knox v. Italy, the case Amanda lodged with the ECHR alleging that Italy violated her Convention rights by convicting her of calunnia against Patrick Lumumba.
The ECHR will apply the same case-law in its evaluation of the conduct of the Italian authorities as it has to that of Ukraine or any other Council of Europe treaty member.
The use by Italy or any other CoE State of statements made by a person in an interrogation without a lawyer, even if the interrogation is called a witness interview by the State, to convict that person, is generally a violation of Convention Articles 6.1 with 6.3c. Legal counsel in an interrogation cannot be waived without full knowledge by the person interrogated of the legal consequences of the waiver. The ECHR has developed and uses in each case a non-exhaustive list of factors it considers in such cases, so that it maintains an objective and uniform basic procedure for judgment. The finding of a violation under Articles 6.1 with 6.3c means that the person convicted is entitled, under the Convention, to request a retrial with the exclusion of the use of the statements obtained in violation of the Convention. In Amanda's case, that would lead to there being no evidence of an accusation or statement against Lumumba.
