You are wrong with regards to the staging of the burglary.
So what was crime E) which Knox and Sollecito did not commit?
It is true from Guede's trial
but this is not evidence of the involvement of Knox and Sollecito as the court emphasised. This is a product of the prosecution introducing into the case against Guede irrelevant facts to the case against Guede to poison the case against Knox. My guess is that by 'trying' Knox and Sollecito in a court in which they had no defence -Guede's trial, the prosecution hoped to influence pubic opinion and put pressure on Sollecito to do a deal against Knox.
The prosecutors and judges who participated in this scheme had a more serious aim: to use the results of Guede's trial in which Knox and Sollecito were identified as participants in Guede's crimes against Kercher, although they could not defend themselves during his trial, as evidence against Knox and Sollecito in their trial. This would have been permitted under the Italian Constitution and Italian law prior to 1999, but constitutional and legal reforms in the period 1999 - 2005, based upon the judgment against Italy by the ECHR in Craxi v. Italy, made such use of prior judgments against persons not represented in the trial illegal.
One point to be observed is that a judgment against a CoE state by the ECHR can result in very profound changes of a general nature in that state's legal system.
For details, see:
http://hudoc.exec.coe.int/eng#{%22EXECIdentifier%22:[%22001-68986%22]}
"Resolution ResDH(2005)28
concerning the judgment of the European Court of Human Rights
of 5 December 2002 (final on 5 March 2003)
in the case of Craxi No. 2 against Italy
(Adopted by the Committee of Ministers on 25 April 2005
at the 922nd meeting of the Ministers' Deputies)"
excerpts:
"Whereas in its judgment of 5 December 2002 the Court unanimously:
- held that there had been a violation of Article 6, paragraphs 1 and 3 d) of the Convention in that it had been impossible to examine or have examined prosecution witnesses who had died or had exercised their right to remain silent;"
"As regards the general measures {that Italy was obligated to pursue as a result of the judgment of the ECHR against it}, the government recalls that, subsequent to the violation in this case, important measures have been adopted by Italy with a view to ensuring the fairness of criminal proceedings in accordance with Article 6 of the Convention.
Constitutional reform of 1999
Article 111 of the Italian Constitution, as modified in November 1999, gave Constitutional rank to a number of requirements contained in Article 6 of the Convention and, in its new wording, it provides in particular that:
“1. Jurisdiction shall be exercised through fair proceedings, conducted in accordance with the law.
2. All proceedings shall be conducted in compliance with the principles of adversarial process and equality of arms before a neutral and impartial court. The right to be tried within a reasonable time shall be guaranteed by law.
3. In criminal proceedings, the law shall guarantee that the person accused of an offence is informed promptly and in confidence of the nature and grounds of the charge against him; that he shall have adequate time and facilities for the preparation of his defence; that he shall be given an opportunity before the court to examine or to have examined anyone giving evidence against him, to obtain the attendance and examination of any defence witnesses on the same conditions as witnesses called by the prosecution and to obtain the production of any other evidence in his favour; and that he will have the assistance of an interpreter if he cannot understand or speak the language used at the trial.
4. The principle of adversarial process shall be observed during criminal proceedings with regard to the examination of evidence. The guilt of an accused cannot be established on the basis of statements made by a person who has freely and wilfully eluded examination by the accused or his lawyer.
5. Rules shall be made governing the circumstances in which adversarial examination of the evidence is to be dispensed with, either because the accused has consented or because there is due evidence that such examination is objectively impossible or that there has been unlawful conduct.”
Legislative reform of 2001
A law implementing the new constitutional provision was adopted by Parliament in 2001 (Law No. 63 of 1/03/2001), which amended inter alia Article 513 of the Code of Criminal Procedure, application of which was at the basis of the violation found in this case.
According to the law now in force, pre-trial statements made by a person who subsequently avails himself of his right to remain silent in the debate, may be read and used by the judge only if all the interested parties consent to it unless the judge establishes that the refusal to be cross-questioned in the proceedings is the result of bribery or threats.
This rule applies not only to statements made in the same proceedings but also to those made in other proceedings and, in this last case, the statements may not even be read without the consent of the accused person concerned.
However, if it proves impossible to secure the presence of the person who made the statements or to examine him or her in accordance with the adversarial principle, where that impossibility is the result of events or circumstances that were unforeseeable when the statements at issue were made, Article 512 of the Code of Criminal Procedure applies. This provision reads as follows: “At the request of one of the parties, the judge shall order to be read in court documents resulting from enquiries by the police, by the representative of the prosecuting authorities, by the private parties' representatives or by the judge in connection with the preliminary hearing, where, on account of unforeseeable events or circumstances, those enquiries can no longer be repeated.”
As a result of these measures, it is no longer possible that a person is convicted exclusively on the basis of statements that he/she could not examine or have examined."
