Cont: The Trials of Amanda Knox and Raffaele Sollecito: Part 27

[Vixen]

I have no doubt that the appropriate forms were available in Amanda's cell in English.

What was she paying Dalla Vedova for? Twiddling his thumbs?

 

[Vixen]

Exactly.
But it goes a little deeper:

1. Knox REPORTED being mistreated by the police in her Memoriale 1, written in English on Nov. 6, 2007, soon after the interrogations, including that by Mignini, were completed.

2. The police filed the REPORT, Memoriale 1, in her case file. One must assume the prosecutor, Mignini, was aware of this REPORT.

3. The police and prosecutor took NO ACTION TO INVESTIGATE, including no attempt by them to obtain a formal complaint. Under Italian law, it is the responsibility of the prosecutor to assure that persons making "informal" complaints are made aware of any formal requirements and that complaints are investigated and prosecuted when the investigation shows that grounds to prosecute exist.

4. The Italian courts were AWARE of Knox's REPORT, Memoriale 1, which is a complaint under ECHR case-law.

5. In particular, the Gemelli CSC panel was AWARE of Knox's REPORT, but it did not instruct a lower court to order an independent INVESTIGATION by police not involved with the interrogation or the Rome or Perugia police command, which it had authority to do.

6. The Gemelli CSC panel ACKNOWLEDGED that Knox was or became a SUSPECT during the interrogation, and that CPP Article 63 had been VIOLATED by the police. Thus, neither of the two INTERROGATION STATEMENTS signed by Knox could be used against her according to the Gemelli CSC panel judgment.

7. Then, in the same judgment, the Gemelli CSC panel decided that Knox's REPORT, Memoriale 1, was a DEFENSIVE STATEMENT, referencing the matter of the INTERROGATION STATEMENTS. Because it was a document originating solely from the accused, the Gemelli CSC panel ruled it could be used as evidence against Knox. Therefore, the Gemelli CSC panel ruled that Knox's INTERROGATION STATEMENTS could be used as evidence against Knox, but only for the charge of CALUNNIA against Lumumba.

8. Thus, it appears the Gemelli CSC panel predetermined that Knox was to be punished for her REPORT alleging mistreatment by the police by being CONVICTED of CALUNNIA against Lumumba.

9. Therefore, the prejudicial actions of the Gemelli CSC panel would indicate that it was not advisable for Knox to file a FORMAL COMPLAINT against the police, since any such FORMAL COMPLAINT would used to wrongfully accuse Knox of CALUNNIA against the POLICE.

10. Instead, Knox choose to testify about her mistreatment by the police in open court, and to include reference to it in each of her appeals. For this testimony and the appeals, Knox was charged with the crime of continuous aggravated calunnia against the police. The aggravating factors, "continuous" and "aggravated", were added to the charge because: 1) her statements about the police mistreatment were repeated in each appeal, and 2) the prosecutor alleged that her statements against the police were intended to cover up another crime - Knox's alleged calunnia against Lumumba.

11. Examining this sequence of events, the ECHR will have no problem with Knox's choice of remedy and clearly the remedy was exhausted.

She didn't say she was complaining about it. She didn't say, 'I hereby give you formal notice of a complaint of police brutality. Please acknowledge and advise me of the next step and how you plan to deal with my complaint'.

 

[Vixen]

Here's another ECHR case which has relevance, because the ECHR explicitly listed factors it used in evaluating the police mistreatment of the victim. Unlike the situation for Knox, in this case, the victim was seriously injured and the ECHR judged a violation of Article 3 amounting to torture.

In the following excerpt, inline references, with one exception, have been omitted for clarity.

POMILYAYKO v. UKRAINE 60426/11 11/02/2016

Ms. Pomilyayko and her colleagues were employees of a company where some equipment had been stolen. She and one or more colleagues were suspects in the theft.

"7. The Kharkiv Ordzhonikidze District Police Department invited the applicant and one of her colleagues for questioning in respect of the theft.

8. On 8 November 2008, at 11.15 a.m., the applicant came to the police station.

9. At about 11.35 a.m. on 8 November 2008 a senior detective officer, T., accompanied the applicant to the fourth floor of the police station. He asked her to wait in the corridor and entered office no. 56. Five minutes later the applicant heard a woman’s scream emanating from that office. T. opened the door and directed an officer passing by to take the applicant to his office. She was made to wait there for about twenty minutes. Then T. took her to office no. 56. He pushed her inside, twisted her arms behind her back and handcuffed her, even though she had offered no resistance.

10. T. and his colleague, S., who was also in the office, intimidated the applicant with a view to making her confess to the investigated theft. They told her that her colleague, Ms L., had already started to “crack”. The applicant noticed Ms L.’s belongings on the floor. She concluded that it was her scream that she had heard.

11. Having failed to obtain a confession from the applicant, T. and S. made her sit on a chair, put a plastic bag over her head and started to strangle her. At the same time they struck her head, face and mouth so that she could not bite through the bag. The applicant fainted several times. When she told the officers she needed to use the toilet, S. hit her in the stomach and the head. She fainted once again and urinated involuntarily. Sometime later the applicant noticed the presence of another officer, P., in the office.

12. After several hours of ill-treatment, the applicant was taken to another office where she stayed for about twenty minutes. Thereafter she was brought before a female officer, who conducted her formal questioning.

13. At about 6 p.m. the applicant signed the official report of the questioning. She was then taken to the office of the head of the search unit, who stated that she was the main suspect in the theft case and that all her colleagues had indicated her as the likely thief. The applicant complained about her ill-treatment. Her complaint was ignored.

14. She was taken again to office no. 56, where the officers threatened her and tried to pressure her into confessing. She repeatedly refused to do so and professed her innocence. The applicant was forced to write a statement that she had no complaints about the way the police had treated her.
....
47. ...[T]he Court notes that on the day following the alleged ill-treatment the applicant was diagnosed with numerous injuries, for which she underwent in-patient hospital treatment for eighteen days; she then remained on sick leave for another three weeks. Doctors at the hospital in which she was treated found it necessary to immediately inform the police of her injuries ....

50. The Court has consistently pointed out in its case-law that, in respect of a person who is deprived of his liberty, or, more generally, is confronted with law-enforcement officers, any recourse to physical force which has not been made strictly necessary by his or her own conduct diminishes human dignity and is an infringement of the right set forth in Article 3....

51. The Court considers in the present case that the applicant suffered a serious violation of her physical integrity and dignity. In assessing the gravity of the ill-treatment in question, the Court attaches weight to: the applicant’s gender and the overwhelming power of the three trained male police officers who subjected her to violence; the aim of the ill-treatment, which was to extract a confession to a criminal offence; the nature of the ill‑treatment, involving a plastic bag placed over the applicant’s head and attempted or simulated strangulation; the extent of the applicant’s injuries, as documented by the hospital following her release; the psychological pressure on the applicant arising from the simultaneous questioning (and, possibly, ill-treatment) of her colleague, and, lastly, the applicant’s humiliation in respect of her involuntary urination while being in a state of complete helplessness. The Court considers these considerations sufficient to conclude that the applicant suffered ill-treatment serious enough to constitute torture (see Article 1 § 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, cited by the Court in [other cases] ...)."

52. Accordingly, there has been a violation of Article 3 of the Convention under its substantive limb.
____
Looking at Paragraph 51 and the weighting factors, it is clear that some of these apply directly to the Knox v. Italy case, but certainly Knox did not suffer any reported visible injuries. However, the pressures on Knox resulted in her false statements, which unfairly affected the legal proceedings against her. The factors applying to Knox v. Italy would be:

1. Gender; 2. Power of the authorities, including the arbitrary exercise of that power to threaten and slap her without legal justification; 3. The aim of the mistreatment, which was to extract a confession or statement implicating another about a murder case; 4. The nature of the ill-treatment, which included but was not limited to threats, slaps, misrepresentations, repetition, sleep-deprivation, and suggestions designed to overcome her will and corrupt her memory; 5. The psychological pressure of the approximately simultaneous questioning of her boyfriend, Sollecito, and apparently the police telling her that he had stated she had left his apartment at the relevant time or otherwise did not support her alibi; and 6. Humiliating her by preventing her from using bathroom facilities.

Oh really? This is equivalent to a claim which no-one else witness in which Knox claims Ficarra slapped up her head- amazingly, having at the same time being caught out confessing to being at the murder scene and taking a strange man there to have sex with Mez, yet her lawyer thought it too immaterial and trivial to file a proper complaint.

Having failed to obtain a confession from the applicant, T. and S. made her sit on a chair, put a plastic bag over her head and started to strangle her. At the same time they struck her head, face and mouth so that she could not bite through the bag. The applicant fainted several times. When she told the officers she needed to use the toilet, S. hit her in the stomach and the head. She fainted once again and urinated involuntarily. Sometime later the applicant noticed the presence of another officer, P., in the office.

So Knox was given camomile tea and a choice brioches and that counts as 'torture' and abuse of human rights, yet at no time did she get a medical report describing her terrible trauma, even though the American Embassy official visited her frequently. She could have told him.

 

[Vixen]

There's certainly proof she was not provided a lawyer and that the translator provided was not independent nor did she limit her actions strictly to translation. As to whether she was given food and drink, allowed to go to the bathroom and whether she was slapped and threatened, I suppose we could turn to the recording of the interrogation....

Vixen, I wonder; if you were detained by the police in a foreign country, threatened, slapped around, not given anything to eat or drink, not allowed to sleep or use the bathroom, not given a lawyer, provided an interpreter who works for and acted on behalf of the police.... if they didn't record the interrogation and the police coerce a false statement out of you... what would be your plan for proving the police did this to you?

And btw, the case before the ECHR is an appeal of Amanda's calunnia conviction, and is based in part on the fact that she was treated in an inhuman and degrading manner. She did not file criminal charges against the police so I have no idea why you think some kind of formal complaint would be required. It's clear she documented her treatment within 24 hours of the interrogation and the courts were very well aware of it. All the ECHR needs to do is determine if there is sufficient grounds to consider her accusations reasonable. I'm thinking her acquittal of calunnia against the police will go a long way in that decision.

We aren't talking about 'filing criminal charges'. Only the public prosecutor (CPS/District Attorney) can do that.

We are talking about filing a simple complaint. You cannot be prosecuted for filing a complaint as per protocol.

You can be charged with calunnia if instead of going through the correct complaints procedure, you embark on a campaign of wilful vilification and libel instead.

 

[Vixen]

Mignini is nothing to the ECHR. The case is only about human rights - as guaranteed in the Convention and ECHR case-law, Knox, and Italy.

I am very confident that the ECHR will rule against Italy, and for Knox, and that provisions of the judgment will include that the trial convicting her of calunnia against Lumumba was unfair and, therefore, that Knox is entitled to request a new trial in which all her Convention rights are respected.

I cannot predict whether or not Italy would fulfill Knox's request for a revision trial, because the Italian courts have a group of judges who do not follow the Italian Constitution or Italian laws, and certainly not the European Convention on Human Rights.

They might throw her a few pennies but she will remain a convicted criminal.

 

[Stacyhs]

I don't seem to have made it clear enough as you are still in the dark and know not why you stumble.

It means nothing to 'mention it in the witness statement/the memoriale to the police'. You have to follow the correct complaints procedure. The court can do exactly ZIPPO, NADA, ZILCH.

The court cannot campaign on behalf of anyone who appears in front of it. That is the barristers' job. Dalla Vedova did not make a complaint about police torture and human rights abuses at any time, much less file a report via the right channels.

Imagine you are a shop selling white goods and I buy a washing machine from you.

I get it home. The blessed thing doesn't work. Kaput. What should I do? Should I:

1. Issue a press release calling you a crook and a conmerchant warning people not to go near your shop; go on tv interviews moaning about your shop and its shoddy products; file a complaint with the Courts suing you for damages for distress caused and when that fails, lodge a claim with the ECHR citing Article 6 and Article 3.

2. Be reasonable and notify you of my dissatisfaction, requesting you replace the faulty product or refund my money.

No doubt you will go for (1) because you have a belief simply whinging is enough and who cares if it's libel and could cause you serious and reckless reputation damage?

Apparently you either really don't know when you've lost an argument or you are just incapable of acknowledging it. Try reading this again very, very slowly and perhaps it will sink in:

Grinenko v Ukraine 33627/06 15-11-2012

Grinenko maintained that Ukraine had violated his rights under Convention Articles 3 (prohibition of torture or inhuman or degrading treatment), 5 (right to liberty, prohibition against arbitrary detention), and 6 (right to a fair trial) in the course of a criminal case: an allegation that he had ordered a murder for hire.

Before the ECHR, Ukraine's defense was that Grinenko's application for violation of Article 3 was inadmissible because he had not followed proper procedures for a complaint in the Ukrainian justice system. He had repeatedly mentioned his complaint in court proceedings, but had not filed the appropriate formal complaint with the authorities.

Your defense is that Knox did not follow proper procedure for a complaint in the Italian justice system. Knox, like Grinenko, had repeatedly mentioned her complaint in her memorial 1 (entered into court evidence) and in court proceedings. You claim that Knox, like Grinenko, did not file the appropriate formal complaint with the authorities. Following this so far?


[/QUOTE]ECHR judgment: State authorities must take action whenever there is any credible allegation of mistreatment by State agents, and statements by an alleged victim in court are adequate to bring such allegations to the level of requiring an effective investigation. Failure of Ukraine to conduct an effective investigation was thus a violation of Convention Article 3. [/QUOTE]

The Italian police did not take action to investigate Knox's statement of being smacked. Instead, they sued her for defamation which case they lost. This failure to investigate is a violation of Article 3.

Your inability, or unwillingness, to acknowledge this is like a 4 yr. old refusing to concede he ate the cookie when confronted with a picture of himself with cookie crumbles all around his mouth and a cookie in each hand.

 

[Vixen]

Apparently you either really don't know when you've lost an argument or you are just incapable of acknowledging it. Try reading this again very, very slowly and perhaps it will sink in:



Your defense is that Knox did not follow proper procedure for a complaint in the Italian justice system. Knox, like Grinenko, had repeatedly mentioned her complaint in her memorial 1 (entered into court evidence) and in court proceedings. You claim that Knox, like Grinenko, did not file the appropriate formal complaint with the authorities. Following this so far?

ECHR judgment: State authorities must take action whenever there is any credible allegation of mistreatment by State agents, and statements by an alleged victim in court are adequate to bring such allegations to the level of requiring an effective investigation. Failure of Ukraine to conduct an effective investigation was thus a violation of Convention Article 3.

The Italian police did not take action to investigate Knox's statement of being smacked. Instead, they sued her for defamation which case they lost. This failure to investigate is a violation of Article 3.

Your inability, or unwillingness, to acknowledge this is like a 4 yr. old refusing to concede he ate the cookie when confronted with a picture of himself with cookie crumbles all around his mouth and a cookie in each hand.

She was sued for defamation because she used her PR agent and book publishers to issue press releases saying she was beaten up by the police and interrogated for 53 hours by tag teams of twelve and not allowed food or drink or comfort breaks.

Yet her lawyer failed to file a complaint via the correct complaints procedures.

 

[Stacyhs]

Oh really? This is equivalent to a claim which no-one else witness in which Knox claims Ficarra slapped up her head- amazingly, having at the same time being caught out confessing to being at the murder scene and taking a strange man there to have sex with Mez, yet her lawyer thought it too immaterial and trivial to file a proper complaint.

There were witnesses. You are incredibly naïve if you think any of those policemen would come forward and admit to being part of an illegal act during the investigation. Coming forward would have ended their careers just as Vanessa Sollecito's carabinieri career was ended for daring to defend her brother. Any "snitch" would have been ostracized by his/her fellow officers. Only a fool would think otherwise.

So Knox was given camomile tea and a choice brioches and that counts as 'torture' and abuse of human rights, yet at no time did she get a medical report describing her terrible trauma, even though the American Embassy official visited her frequently. She could have told him.

Oh, really? That's what the police claim. A claim Marasca called "sugarcoated". Yet, where is the video of them doing this? Oh, wait...they just couldn't afford a video tape. Right? Nothing suspicious here. Where is the independent, non-interrogation involved participants' corroboration? I supposed Knox's screams, heard by others in the questura, were due to that darn chamomile tea burning her mouth?

Just stop with the "torture" and "medical report" crap, will ya? It's tiresome as well as silly. As you've been told twice, and which anyone with an ounce of sense realizes, 2 or 3 smacks to the back of the head do not leave any marks and Knox has never claimed she was "tortured". Continuing to spout such nonsense doesn't reflect badly on Knox, but badly on you.

 

[Bill Williams]

I don't seem to have made it clear enough as you are still in the dark and know not why you stumble.

It means nothing to 'mention it in the witness statement/the memoriale to the police'. You have to follow the correct complaints procedure. The court can do exactly ZIPPO, NADA, ZILCH.

The court cannot campaign on behalf of anyone who appears in front of it. That is the barristers' job.

Manuela Comodi's words about this were quoted to the thread, upthread. Either she, or she on behalf of the PM were required to investigate Knox's allegation. Instead of that, Comodi investigated Knox for defamation - not the claim she'd been hit in the interrogation.

You can invent strict adherence to some pseudo-process all you want. None of that changes the way Comodi herself put it to the court.

Read the thread.

 

[Bill Williams]

She was sued for defamation because she used her PR agent and book publishers to issue press releases saying she was beaten up by the police and interrogated for 53 hours by tag teams of twelve and not allowed food or drink or comfort breaks.

Yet her lawyer failed to file a complaint via the correct complaints procedures.

Why do you embellish? It does your argument no good.

Your canard about PR agents and book releases don't agree WITH THE WAY MANUELA COMODI HERSELF TOLD THE COURT as to why Knox was being charged with defamation - a charge she was eventually acquitted of!.

YOUR FACTOIDS DON'T SQUARE WITH THE WAY COMODI HERSELF SAYS the charges came about! Do some reading rather than inventing, using the first thing which pops into your head!

 

[Bill Williams]

Seven posts in 35 minutes, and not a verified fact in any of them.

 

[Stacyhs]

She was sued for defamation because she used her PR agent and book publishers to issue press releases saying she was beaten up by the police and interrogated for 53 hours by tag teams of twelve and not allowed food or drink or comfort breaks.

Yet her lawyer failed to file a complaint via the correct complaints procedures.

Why do you continue to repeat these lies time and again despite them being disproved already?

She never said she was "beaten up". She said she was hit on the back of the head which she demonstrated in court. You cannot provide a single quote from Knox, her "PR agent" or book publisher/her book where she said she was "beaten up". But that doesn't stop you.

Knox never claimed that there were "tag teams of twelve". As I previously pointed out to you, twelve officers were scheduled for the night of Nov.5/6 (some brought in from Rome). Do you dispute that? They were divided into groups interrogating Amanda and Raff. Do you deny that? Amanda only says there were sometimes several in the room at the same time and explicitly mentions Ficarra, the "silver haired" officer and a few others. SEVEN police officer sued her for defamation Do you deny that?

As has been provided to you previously, the amount of hours of her interrogations comes from her first appeal supplied by her lawyers. But, of course, you don't think her lawyers had access to police records, do you? It doesn't phase you for a second that this was never refuted by the police or prosecutors, does it?

And, for the sake of everyone's sanity, stop with the "correct procedures" crap. It means nothing. It is only evidence of just how desperate you are.

 

[Stacyhs]

Why do you embellish? It does your argument no good.

Your canard about PR agents and book releases don't agree WITH THE WAY MANUELA COMODI HERSELF TOLD THE COURT as to why Knox was being charged with defamation - a charge she was eventually acquitted of!.

YOUR FACTOIDS DON'T SQUARE WITH THE WAY COMODI HERSELF SAYS the charges came about! Do some reading rather than inventing, using the first thing which pops into your head!

That's not the word I'd use. These are "embellishments" in the same way as "There were no contacts with the Russians" is an "embellishment".

 

[Bill Williams]

That's not the word I'd use. These are "embellishments" in the same way as "There were no contacts with the Russians" is an "embellishment".

I've decided to use "embellishments" rather than the more accurate "lies", since finding out Gogerty-Marriott paid everyone except me!

 

[Vixen]

I've decided to use "embellishments" rather than the more accurate "lies", since finding out Gogerty-Marriott paid everyone except me!

Now I've discovered what your favourite pastime is, I know what to get you for Christmas: a big pot of gold paint and a few lilies, so you can keep on gilding 'em.

 

[Stacyhs]

Now I've discovered what your favourite pastime is, I know what to get you for Christmas: a big pot of gold paint and a few lilies, so you can keep on gilding 'em.

And we'll all chip in to get you some one on one tutoring in reading comprehension. It should, hopefully, cut down on the number of times we need to repost things for you.

Having any luck on finding those quotes from Knox, M-G, or her publishers/book that she was "beaten up" or "tortured"?

 

[Bill Williams]

Now I've discovered what your favourite pastime is, I know what to get you for Christmas: a big pot of gold paint and a few lilies, so you can keep on gilding 'em.

This makes no sense.

 

[Numbers]

Apparently you either really don't know when you've lost an argument or you are just incapable of acknowledging it. Try reading this again very, very slowly and perhaps it will sink in:


Your defense is that Knox did not follow proper procedure for a complaint in the Italian justice system. Knox, like Grinenko, had repeatedly mentioned her complaint in her memorial 1 (entered into court evidence) and in court proceedings. You claim that Knox, like Grinenko, did not file the appropriate formal complaint with the authorities. Following this so far?

ECHR judgment: State authorities must take action whenever there is any credible allegation of mistreatment by State agents, and statements by an alleged victim in court are adequate to bring such allegations to the level of requiring an effective investigation. Failure of Ukraine to conduct an effective investigation was thus a violation of Convention Article 3. [/QUOTE]

The Italian police did not take action to investigate Knox's statement of being smacked. Instead, they sued her for defamation*which case they lost. This failure to investigate is a violation of Article 3.

Your inability, or unwillingness, to acknowledge this is like a 4 yr. old refusing to concede he ate the cookie when confronted with a picture of himself with cookie crumbles all around his mouth and a cookie in each hand.[/QUOTE]

Since the issue of filing a complaint has come up again, I will post here more of the ECHR judgment text from Grinenko v. Ukraine, which should add some clarity and show some parallels with the Knox case, including her giving Memoriale 1 - which according to Italian law (CPP Articles 337 and 333) did meet or approximate the formalities of a complaint of a crime.

In fact, according to these Italian laws (CPP Articles 337 and 333), a private person may provide a complaint and it may even be delivered orally; if delivered orally, the police or prosecutor is to write down (minute) the complaint, which the complainant or his/her lawyer will sign and date. There is no requirement in Italian law that a person's lawyer must deliver some kind of formal complaint; that is merely a guilter fantasy.

Here's the additional ECHR judgment text from Grinenko v. Ukraine:

27. On 14 and 28 January 2005 the applicant was questioned in the absence of N.B. but in the presence of the legal aid lawyer. According to the verbatim record provided by the Government, while being questioned on 14 January 2005 the applicant had informed the investigator that his confession of 21 November 2004 had been obtained by means of ill‑treatment.

30. The applicant further submitted [during his trial] that he had been arrested at 11 p.m. on 20 November 2004, taken to the police station in Kharkiv and then escorted to Kyiv. He alleged that police officers had hit him in the stomach with truncheons, placed a gas mask over his head and blocked his access to air, which had made it impossible to breathe, and that his hands had swelled because the handcuffs had been too tight. This treatment had resulted in his confessing to the crime.
31. D.K. [co-accused with the applicant and who had named the applicant as a co-conspirator in the preliminary investigation] asserted that after his arrest, the police officers had started to threaten him so he had simply given up and signed all the documents he had been told to sign. The court called his girlfriend as a witness. She stated that on 17 November 2004 she had also been taken to the police station together with D.K. On that day she had been questioned for six hours, during which the police officers had sworn and shouted at her, and threatened to rape her. After her release, she had gone to a doctor for examination.

32. When the court summoned the police officers, the applicant identified one police officer who had hit him in the stomach and another who had placed a gas mask over his head. D.K. identified the police officer who had abused him psychologically. The girlfriend of D.K. identified the police officer who had shouted at her and threatened to rape her. The police officers denied the allegations of psychological and physical ill-treatment. They admitted that they had arrested the applicant in Kharkiv and had taken him to Kyiv. [Meaning that the official arrest documents had been falsified by the police.]
33. The court also questioned the investigator, who submitted that the applicant had made no complaints of ill-treatment {a false statement, contradicted by the record; see para. 27} and that the applicant had been assisted by the legal aid lawyer during questioning. In the investigator’s opinion, this had been sufficient to ensure the applicant’s defence rights.
1. The parties’ submissions

46. The Government contended that the applicant had mentioned his allegation of ill-treatment to the authorities for the first time on 14 January 2005. He had maintained that complaint during the criminal trial. This, however, had not been an effective way of raising the complaint of ill-treatment at the domestic level. The applicant should have submitted a separate application to the prosecutor’s office requesting that criminal proceedings be instituted against the police officers concerned. Such an application would have enabled the authorities to carry out pre-investigative enquiries and decide whether to open an investigation in that respect. The refusal to investigate could have been further challenged before the higher prosecutor or the courts, as provided for by Articles 99-1 and 236-1 of the CCP. The Government thus asserted that the applicant had failed to exhaust domestic remedies in respect of his complaint of ill-treatment.

47. The applicant disagreed and claimed that he had informed the investigator and the courts dealing with his criminal case about the alleged ill-treatment. If they had not been empowered to investigate such issues, they should have referred the complaint to the appropriate authority, as required by Article 97 of the CCP.
2. The Court’s assessment

48. The Court notes that under Article 97 of the CCP a prosecutor, investigator, inquiry officer or judge is obliged to accept applications or notifications as to a committed or planned crime, including in cases that are outside their competence. Upon receipt of such information, those public officers should either institute criminal proceedings, refuse to institute criminal proceedings, or remit the material for examination in accordance with the rules of jurisdiction. 49. In the present case the applicant notified the investigator in charge of his criminal case about the alleged ill-treatment (see paragraph 27 above), but the investigator did not take a separate decision on this issue and later even claimed before the trial court that the applicant had not complained of ill-treatment (see paragraph 33 above). The applicant further made that complaint before the trial court, which, rather than referring the matter to the investigative authorities, took cognisance of the applicant’s complaint and dismissed it after examination on the merits. The applicant then raised the issue in his cassation appeal to the Supreme Court. It follows that the applicant sufficiently informed the domestic authorities of the alleged ill-treatment and provided them with appropriate opportunities to address the matter effectively. 50. Accordingly, the complaint cannot be rejected on the grounds of non-exhaustion of domestic remedies and the Government’s objection in this regard should be dismissed. Neither can the applicant be reproached for having missed the six-month time-limit as he reasonably expected that the courts would give attention to those issues in the course of the criminal proceedings against him (see Kaverzin v. Ukraine, cited above, § 99).

51. The Court further notes that the applicant’s complaints under Article 3 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. They are not inadmissible on any other grounds. They must therefore be declared admissible.

61. The Court reiterates that where an individual makes an arguable claim that he has been ill-treated by the State authorities in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention, requires by implication that there should be an effective official investigation. For the investigation to be regarded as “effective”, it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obligation of result, but one of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence, and so on. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard, and a requirement of promptness and reasonable expedition is implicit in this context (see, among many authorities, Mikheyev v. Russia, no. 77617/01, § 107 et seq., 26 January 2006, and Assenov and Others v. Bulgaria, 28 October 1998, Reports 1998-VIII, §§ 102 et seq.).

62. As to the present case, the Court considers that the applicant made an arguable complaint of ill-treatment before the domestic authorities which triggered their procedural obligation under Article 3 of the Convention to carry out an effective investigation of the alleged facts. Meanwhile, the applicant’s allegations were examined exclusively by the courts in the course of legal argument concerning the admissibility of evidence at trial. This examination was limited in scope as it amounted only to the questioning of the police officers, the defendants and one witness. Accordingly, there has been no full-scale investigation of the matter for the purpose of Article 3 of the Convention. Furthermore, following that examination the courts decided to give preference to the police officers’ account of the facts without making any genuine attempt to remove the discrepancies between the applicant’s specific and concrete statements and the submissions by the police officers. In these circumstances the Court considers that the State has failed to take the necessary steps aimed at effective investigation of the allegations of ill-treatment.

63. In view of the above, the Court holds that there has been a violation of Article 3 in its procedural limb.
_____
* The legal case against Knox was primarily a criminal charge of calunnia, false accusation, against the police and Mignini. She was finally acquitted (the prosecution did not appeal) by the judgment of the Boninsegna court.

 

[Numbers]

From Stacyhs's post:

ECHR judgment: State authorities must take action whenever there is any credible allegation of mistreatment by State agents, and statements by an alleged victim in court are adequate to bring such allegations to the level of requiring an effective investigation. Failure of Ukraine to conduct an effective investigation was thus a violation of Convention Article 3.

The Italian police did not take action to investigate Knox's statement of being smacked. Instead, they sued her for defamation*which case they lost. This failure to investigate is a violation of Article 3.

Your inability, or unwillingness, to acknowledge this is like a 4 yr. old refusing to concede he ate the cookie when confronted with a picture of himself with cookie crumbles all around his mouth and a cookie in each hand.

Since the issue of filing a complaint has come up again, I will point out that Knox's Memoriale 1, according to Italian law (CPP Articles 337 and 333) did meet or approximate the formalities of a complaint of a crime.

In fact, according to these Italian laws (CPP Articles 337 and 333), a private person may provide a complaint and it may even be delivered orally; if delivered orally, the police or prosecutor is to write down (minute) the complaint, which the complainant or his/her lawyer will sign and date. There is no requirement in Italian law that a person's lawyer must deliver some kind of formal complaint; that is merely a guilter fantasy.
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* The legal case against Knox was primarily a criminal charge of calunnia, false accusation, against the police and Mignini. She was finally acquitted (the prosecution did not appeal) by the judgment of the Boninsegna court.

Reposted this for clarity on the beginning of the post.

 

[Stacyhs]

Numbers, how much would you like to chip in for the one on one reading comprehension lessons for Vixen?