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.
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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.
