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The Trials of Amanda Knox and Raffaele Sollecito: Part 28

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Stacyhs said:
But, but....we have been assured that this is an appeal!
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It's only a statement published by the ECHR itself that "the Grand Chamber should not be seen as an appeal court whose function is to correct alleged errors of fact or of assessment of the various features of each individual case. The intervention of the Grand Chamber is instead limited to cases which, by their nature and by the nature of their legal, social and political implications, are capable of having a serious impact on the extent and scope of the protection afforded by the Convention."

But anyone who wishes to state otherwise, for example, that the referral to the Grand Chamber is an ordinary appeal, certainly may do so.

It's only then a question of which position is correct about the ECHR's procedures and intents, that of the ECHR itself or that of the person maintaining a position contrary to that of the ECHR.
 
Numbers said:
It's only a statement published by the ECHR itself that "the Grand Chamber should not be seen as an appeal court whose function is to correct alleged errors of fact or of assessment of the various features of each individual case. The intervention of the Grand Chamber is instead limited to cases which, by their nature and by the nature of their legal, social and political implications, are capable of having a serious impact on the extent and scope of the protection afforded by the Convention."

But anyone who wishes to state otherwise, for example, that the referral to the Grand Chamber is an ordinary appeal, certainly may do so.

It's only then a question of which position is correct about the ECHR's procedures and intents, that of the ECHR itself or that of the person maintaining a position contrary to that of the ECHR.
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You're just appealing to authority now! Just because the ECHR says it's not an appeal court doesn't mean it's true.
 
Stacyhs said:
You're just appealing to authority now! Just because the ECHR says it's not an appeal court doesn't mean it's true.
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Absolutely correct.

The question is, does the evidence - that is, ECHR's Grand Chamber's record of judgments - conform to the ECHR's claims, which are, in essence, that "the Grand Chamber ... {does not act} as an appeal court whose function is to correct alleged errors of fact or of assessment of the various features of each individual case. The intervention of the Grand Chamber is instead {as shown by its judgments} limited to cases which, by their nature and by the nature of their legal, social and political implications, are capable of having a serious impact on the extent and scope of the protection afforded by the Convention.
 
Numbers said:
Absolutely correct.

The question is, does the evidence - that is, ECHR's Grand Chamber's record of judgments - conform to the ECHR's claims, which are, in essence, that "the Grand Chamber ... {does not act} as an appeal court whose function is to correct alleged errors of fact or of assessment of the various features of each individual case. The intervention of the Grand Chamber is instead {as shown by its judgments} limited to cases which, by their nature and by the nature of their legal, social and political implications, are capable of having a serious impact on the extent and scope of the protection afforded by the Convention.
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Come on, Numbers! Don't confuse the issue with facts. You know how they upset some people.
 
Numbers said:
Absolutely correct.

The question is, does the evidence - that is, ECHR's Grand Chamber's record of judgments - conform to the ECHR's claims, which are, in essence, that "the Grand Chamber ... {does not act} as an appeal court whose function is to correct alleged errors of fact or of assessment of the various features of each individual case. The intervention of the Grand Chamber is instead {as shown by its judgments} limited to cases which, by their nature and by the nature of their legal, social and political implications, are capable of having a serious impact on the extent and scope of the protection afforded by the Convention.
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To follow-up, let's review the ECHR's legal summaries from the Chamber and the Grand Chamber, respectively, in a case (relevant to Knox v. Italy) that was judged by a Chamber and then accepted in the ECHR's referral process for Grand Chamber judgment.

1. Salduz v. Turkey

Salduz v. Turkey 36391/02 (Chamber) 26/04/2007
Article 6

Article 6-3-c

Defence through legal assistance

Lack of legal assistance during police custody: case referred to the Grand Chamber

The applicant was convicted for aiding and abetting the Kurdistan Workers’ Party (“PKK”, an illegal organisation) and sentenced to imprisonment. Before the Court he complained about the unfairness of the proceedings against him as the submissions of the principal prosecutor at the Court of Cassation had not been communicated to him and as he had been denied the assistance of a lawyer during his police custody.

In its Chamber judgment the Court held, unanimously, that there had been a violation of Article 6 § 1 on account of the non-communication of the prosecutor’s submissions. It further held, by five votes to two, that there had been no violation of Article 6 § 3 (c) on account of the lack of legal assistance during police custody.
The case was accepted for referral to the Grand Chamber at the applicant’s request.

Salduz v. Turkey [GC] 36391/02 (Grand Chamber) 27/11/2008
Article 6

Article 6-3-c

Defence through legal assistance

Use in evidence of confession to police of a minor who had been denied access to a lawyer: violation

Facts – At the material time, Turkish law afforded suspected offenders a right of access to a lawyer from the moment they were taken into custody, unless they were accused of an offence falling within the jurisdiction of the state security courts. The applicant, a minor, was arrested on suspicion of aiding and abetting an illegal organisation, an offence triable by the state security courts. Without a lawyer being present, he gave a statement to the police admitting that he had taken part in an unlawful demonstration and written a slogan on a banner. Subsequently, on being brought before the prosecutor and the investigating judge, he sought to retract that statement, alleging it had been extracted under duress. The investigating judge remanded him in custody, at which point he was allowed to see a lawyer. He continued to deny his statement at trial, but the state security court found that his confession to the police was authentic and convicted him as charged. He was given a thirty-month prison sentence.

In its judgment of 26 April 2007, a Chamber of the European Court concluded that the fairness of the applicant's trial had not been prejudiced by his lack of legal assistance during his police custody.
Law – Article 6 § 3 (c): In order for the right to a fair trial under Article 6 § 1 to remain sufficiently practical and effective, access to a lawyer had to be provided, as a rule, from the first police interview of a suspect, unless it could be demonstrated that in the particular circumstances there were compelling reasons to restrict that right. Even where such compelling reasons did exist, the restriction 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 the instant case, the justification given for denying the applicant access to a lawyer – namely that such access was by law systematically denied for offences falling within the jurisdiction of the state security courts – fell short of the requirements of Article 6. Moreover, the state security court had used the applicant's statement to the police as the main evidence on which to convict him, despite the fact that he denied its accuracy. Neither the assistance subsequently provided by a lawyer nor the adversarial nature of the ensuing proceedings could cure the defects which had occurred during police custody. The applicant's age was also a material factor. As the significant number of relevant international law materials on the subject showed, access to a lawyer was of fundamental importance where the person in police custody was a minor. In sum, even though the applicant had had the opportunity to challenge the evidence against him at his trial and subsequently on appeal, the absence of a lawyer during his period in police custody had irretrievably affected his defence rights.
Conclusion: violation (unanimously).

Article 41: EUR 2,000 in respect of non-pecuniary damage. Indication that retrial was most appropriate form of redress.
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My comments: This Grand Chamber judgment was the first case in which the ECHR defined the right to a lawyer from the first interrogation by police as a general defense right under the Convention. Some previous judgments had found violations based on specific circumstances related to denial of a lawyer during an interrogation but had not generalized the right in clear language. Thus, the Grand Chamber was generating a new general interpretation of the rights under the Convention in Salduz. This led to a number of states, members of the Council of Europe, modifying their laws to conform to the principles of Salduz.
 
Following the Grand Chamber judgment Salduz v. Turkey, there were a number of cases lodged with the ECHR relating to a claimed violation of Convention Articles 6.1 with 6.3c: an unfair trial ending in conviction based upon statements made by the person, eventually convicted, during questioning, without a lawyer present, by the authorities.

In a few of these cases, the Chamber judgment was referred to the Grand Chamber.

In each of these cases, the Grand Chamber judgment considered issues related to the Convention and its case-law, including extensions, limitations, and interpretations of the case-law. These referred cases resulted in the following Grand Chamber judgments:

1. Dvorski v. Croatia [GC] 25703/11 20/10/2015

The Grand Chamber found a violation of Articles 6.1 with 6.3c, contrary to the Chamber judgment. The Grand Chamber ruled that the lawyer present during the interrogation must be the one requested by the person being questioned, unless there are relevant and sufficient reasons otherwise. The police had denied Dvorski's lawyer access to the questioning without relevant and sufficient reasons, and had failed to inform Dvorski that his lawyer had come to the police station to see him prior to the questioning. The Convention explicitly states that a person shall be assisted by a lawyer of his choosing. Thus, the use of the confession made by Dvorski during police questioning, in the presence of a lawyer selected by the police, to convict Dvorski was a violation of Articles 6.1 with 6.3c.

2. Blokhin v. Russia [GC] 47152/06 23/03/2016

The Grand Chamber found, in agreement with the Chamber, that there had been a violation of Articles 6.1 with 6.3c in this case of a 12-year old being questioned by police without the presence of a lawyer or guardian for allegedly extorting money from a 9-year old. The 12-year old, being below the age of legal responsibility, was, upon the judgment of a court, based on his statements under that questioning, sent to a locked detention center for juvenile offenders for 30 days “to correct his behavior”. Thus, the ECHR found that the principles of Salduz v. Turkey extend to detentions not considered convictions under domestic law.

3. Ibrahim and others v. the United Kingdom [GC] 50541/08 50571/08 50573/08 40351/09
13/09/2016

This case involve three individuals who had allegedly set off bombs on London transport in a terrorist attack. The fourth individual allegedly gave assistance to one of the others. The police conducted “safety interviews” of each to determine in there were any additional bombs or hazardous materials without lawyers. The police informed the suspects that their safety interview statements were not going to be used against them. However, during the fourth individual's safety interview, he made statements that incriminated himself. The police decided to continue questioning him without warning him or informing him of his rights. His incriminating statements were used at this trial, although there was other evidence against him.

For the first three applicants, the Grand Chamber agreed with the Chamber judgment that there had been no violation of Articles 6.1 with 6.3c. However, for the fourth applicant, the Grand Chamber found, contrary to the Chamber judgment, that there had been a violation of Articles 6.1 with 6.3c.

The Grand Chamber endorsed and clarified the Chamber judgment's outline of factors for the ECHR evaluation of whether a conviction based upon statements made in an interrogation without a lawyer is a violation of the Convention.

4. Simeonovi v. Bulgaria [GC] 21980/04 12/05/2017

In this case, the applicant had spent the three first days of police custody without access to a lawyer. However, he was not questioned during this period, and he apparently confessed some weeks after obtaining the services of two defense lawyers. He subsequently retracted his confession. He was convicted on the basis of his confession.

The Grand Chamber agreed with the Chamber judgment that there had been no violation of Article 6.1 in this case, that is, the trial had been fair, and that there was no violation of Article 6.3c, since the confession was made in the presence of the applicant's lawyers.

5. Beuze v. Belgium [GC] 71409/10 09/11/2018

There was no request for referral to the Grand Chamber in this case; instead, the Chamber to which the case was assigned relinquished the case to the Grand Chamber.

The Grand Chamber found that there had been a violation of Articles 6.1 with 6.3c. In this judgment, the Grand Chamber expanded the outline of the ECHR's evaluation factors for determining whether a conviction based upon statements made in an interrogation without a lawyer is a violation of the Convention.
 
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Numbers said:
The following ECHR case-law is from Diallo v. Sweden 13205/07 (Decision) 05/01/2010:

23. The Court reiterates that paragraph 3 (e) of Article 6 states that every defendant has the right to the free assistance of an interpreter. That right applies not only to oral statements made at the trial hearing but also to documentary material and the pre-trial proceedings. This means that an accused who cannot understand or speak the language used in court has the right to the free assistance of an interpreter for the translation or interpretation of all those documents or statements in the proceedings instituted against him which it is necessary for him to understand or to have rendered into the court’s language in order to have the benefit of a fair trial (see, for example, Hermi v. Italy, 18114/02, §§ 69-70). The said provision does not go so far as to require a written translation of all items of written evidence or official documents in the procedure. In that connection, it should be noted that the text of the relevant provisions refers to an “interpreter”, not a “translator”. This suggests that oral linguistic assistance may satisfy the requirements of the Convention (see Husain v. Italy (dec.), no. 18913/03, 24 February 2005). The fact remains, however, that the interpretation assistance provided should be such as to enable the defendant to have knowledge of the case against him and to defend himself, notably by being able to put before the court his version of the events (see Güngör v. Germany (dec.), no. 31540/96, 17 May 2001). In view of the need for that right to be practical and effective, the obligation of the competent authorities is not limited to the appointment of an interpreter but, if they are put on notice in the particular circumstances, may also extend to a degree of subsequent control over the adequacy of the interpretation provided (see Kamasinskiv. Austria, no. 9783/82, § 74, 19 December 1989).

24. The Court notes that the investigation stage has crucial importance for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered. Moreover, in order to safeguard against ill-treatment and to avoid incriminating statements made during police interrogation without access to a lawyer being used for a conviction, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right (see, inter alia, Salduz v. Turkey [GC], no. 36391/02, §§ 54-55, 27 November 2008).

25. In the same line of reasoning, the assistance of an interpreter should be provided during the investigating stage unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right.
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Knox was not a defendant.
 
Numbers said:
From the ECHR judgment Knox v. Italy, here is the section on the merits of the claim of a violation of Convention Articles 6.1 with 6.3c. The translation is be Google with my help.

B. On the merits

1. Arguments of the parties

179. The applicant reiterates that the interpreter A.D. was not independent since she was a member of the police station performing the functions of interpreter. Moreover, according to her, A.D. had behaved beyond her functions as an interpreter.

180. The Government challenges the applicant's argument. It states that the applicant was assisted by different interpreters at all stages of the proceedings. As to A.D.'s duties, it submits that, according to domestic law, investigators are free in the choice of appointment of interpreters.

181. The Government indicates that Article 146 of the Code of Criminal Procedure does not require the authorities to select the interpreter from an official register. According to it, it is sufficient in this respect that the person concerned is a "language expert" and that he performs his duties for the sole purpose of making the truth known.

2. The Court's assessment

182. The Court reiterates that paragraph 3 (e) of Article 6 of the Convention means that the accused who does not understand or speak the language used in the courtroom is entitled to the free services of an interpreter for the purpose of translating or interpreting for him any act of the proceedings against him for which he needs, in order to benefit from a fair trial, to grasp the meaning or have it {his meaning} rendered in the language of the court. Interpretive assistance must enable the accused to know what he is accused of and to defend himself, in particular by delivering his version of events to the court. The right thus guaranteed must be concrete and effective. The obligation of the competent authorities is therefore not limited to appointing an interpreter: it is also incumbent upon them, once alerted in a given case, to exercise some subsequent control of the value of the interpretation provided (Hermi v. Italy [GC], No. 18114/02, § 80, ECHR 2006-XII, Kamasinski v. Austria, 19 December 1989, § 74, Series A No. 168, Güngör v. Germany (dec.), No. 31540/96, May 17 2001, Cuscani v. The United Kingdom, No. 32771/96, § 39, 24 September 2002, Protopapa v. Turkey, No. 16084/90, § 80, 24 February 2009 and Vizgirda v. Slovenia, No. 59868/08, §§ 75-79, August 28, 2018).

183. In addition, like the assistance of a lawyer, that of an interpreter must be guaranteed at the stage of the {pre-trial} investigation, unless it can be shown that there are compelling reasons to restrict this right (see, to that effect, Diallo v. Sweden (dec.), No. 13205/07, § 25, January 5, 2010, Baytar v. Turkey, No. 45440/04, §§ 50 and following, October 14, 2014, and Şaman v. Turkey, No. 35292/05, § 30, April 5, 2011).

184. The Court also states that it is not necessary to lay down, in the field of Article 6 § 3 (e) of the Convention, detailed conditions as to the manner in which the services of an interpreter may be provided to assist the accused. An interpreter is not an agent of the court within the meaning of Article 6 § 1 of the Convention and is not subject to any formal requirement of independence or impartiality as such. His services must provide the accused with effective assistance in the conduct of his defense and his conduct must not be likely to affect the fairness of the trial (Uçak v. United Kingdom (dec.), No. 44234/98, January 24, 2002).

185. In the present case, it is clear from the file that A.D.'s own confession of the latter's role while the applicant, accused in criminal proceedings within the meaning of Article 6 § 1 of the Convention, formulated her version of the facts, went beyond the functions of interpreter that she had to ensure. The Court notes that A.D. had indeed intended to forge a human and emotional relationship with the applicant, assuming the role of mediator and acquiring a maternal attitude which was in no way required in this case (see paragraphs 40 and 41 above).

186. The Court notes that, despite the fact that the applicant raised these complaints before the national authorities, she did not, however, benefit from a procedure capable of shedding light on her allegations (see, mutatis mutandis, Mantovanelli v. France, 18 March 1997, Reports 1997-II). The authorities failed to assess A.D.'s conduct, to assess whether her duties as an interpreter had been exercised in accordance with the guarantees provided for in Article 6 §§ 1 and 3 (e), and to consider whether this conduct had an impact on the outcome of the criminal proceedings against the applicant. The Court further notes that no mention of the exchanges which took place between the applicant and A.D. during the interrogation of 6 November 2007 is made in the minutes relating thereto.

187. In the view of the Court, this initial defect thus had repercussions on other rights which, while distinct from the one alleged to be infringed, are closely related to it, and compromised the fairness of the proceedings as a whole (Baytar, cited above, § 55, 14 October 2014).

188. In the light of the foregoing, Article 6 §§ 1 and 3 (e) of the Convention have been violated in this case.
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In this section, the ECHR judgment does not detail the suggestive recollections of her personal experience of temporary traumatic amnesia that Anna Donnino recounted, according to Knox's statements and testimony and Donnino's testimony. However, this incident is mentioned in paragraphs 40 and 45 of the ECHR judgment.
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It's all moot, as Boninsegna did not hear the calunnia case for which Knox was convicted. He is merely expressing his own opinion, based on Hellman (as pleaded by Dalla Vedova) and had not actually tried the case himself.

It's amazing ECHR should use Boninsegna as the primary document. It's rather like a critic assessing the works of Shakespeare on a GCSE keynotes revision guide instead of Shakespeare himself.
 
Numbers said:
From the ECHR case Knox v. Italy, the section on admissibility of the alleged violation of Convention Articles 6.1 with 6.3c. The translation is by Google with my help.

"ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION

141. The applicant alleges that she was not assisted by a lawyer during the interrogations of 6 November 2007. She complains of the unfairness of the proceedings and relies in this respect on Article 6 §§ 1 and 3 (c) of the Convention, as worded in its parts relevant to this case:

“1. Everyone has the right to a fair ... hearing ... by a court ... that will ... decide on the merits of any criminal charge against him.

2. (...)

3. Everyone charged with a criminal offense has the following minimum rights: (...)

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”

142. The Government observes that the statements made by the applicant on 6 November 2007 in the absence of a lawyer were declared unusable in relation to the offenses under investigation, namely the murder of M.K. and the sexual violence perpetrated against her. However, it states that, according to the established case law of the Court of Cassation (judgments Nos. 10089 of 2005, 26460 of 2010 and 33583 of 2015), spontaneous statements made by a person under investigation in the absence of a defense lawyer can, in any case, be used when they constitute, as in this case, an offense in themselves. It added that the applicant had the assistance of a lawyer when the first evidence of her responsibility for the murder of M.K. appeared.

143. In addition, the Government alleged that the applicant had been sentenced for malicious false accusation not only on the basis of the statements made on 6 November 2007, but also on the basis of "a multitude of other circumstances", recalled in the judgment of conviction of the Assize Court of 5 December 2009 (see paragraph 80 above).

144. The applicant submits that she was not informed of her right to benefit from legal assistance during her hearings on 6 November 2007, since a defense lawyer {public defender} was not appointed until 8:30 am that day {after both of her disputed interrogation statements were taken}, and denounces the impact of the use of this evidence on the fairness of the proceedings.

A. Admissibility

145. Noting that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it does not face any other ground of inadmissibility, the Court declares it admissible."
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Knox was not a suspect as of the time she dropped her bollock.
 
Numbers said:
Based upon the apparent quality of the facts and reasoning presented in the ECHR Chamber judgment that led the Chamber to conclude that Italy violated Amanda Knox's Convention rights under Convention Articles 6.1 with 6.3c and also Articles 6.1 with 6.3e, resulting in irretrievable prejudice to the fairness of her trial, I find it difficult to believe that a Grand Chamber judgment would differ from that of the Chamber.

While I believe it is unlikely that the Grand Panel Chamber will accept Italy's request for referral, I suspect that it might in order to have the Grand Chamber review, for instance, the case-law relating to Article 6.3e. This is probably the first case where the interpreter actually prejudiced the case by making suggestive comments to a person under interrogation. In the earlier ECHR cases under Article 6.3e that I have read, no interpreter was provided.
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The ECHR erred in assuming Knox was a 'suspect under interrogation'. She made a witness statement to the effect 'it was Lumumba what done it'. There is zero reason for such a witness to be subject to the rules of arrest.
 
Stacyhs said:
What a dramatic turn his description of Amanda took from his initial DM interview where she was a horrible, untrustworthy person whom he'd had to fire for her outrageous and "wild mood swings, crass sexual innuendo and
complete unwillingness to do any work" and his sworn testimony! In court he testified that both their professional and personal relationship were 'good'. No matter which you choose to believe, one way or the other, he is a proven liar.
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If someone reported you to the police as a being a rapist-murderer, you'd be pretty cross with them, too.
 
Stacyhs said:
If he had been misquoted so horrendously, he could have sued the DM. He has not. He has also repeated the "actress" accusation:

(I Fired Foxy Knoxy)



https://www.dailymail.co.uk/news/ar...ress-says-Patrick-Lumumba-accused-murder.html

I think he made the quoted statements in the "Fired" interview. I'd be more suspicious if Nick "I can't be bothered to fact check" Pisa had written it, but it was written by someone named Antonia Hoyle.
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Most people thought her an actress after her 'mask of the assassin' performance, waving her hands around Italian-style.
 
Numbers said:
Any who wish to know more about relevant ECHR case-law, specifically, the general principles formulated by the Grand Chamber on judging an allegation of an unfair trial as a result of the use of statements obtained during the interrogation of a suspect without a lawyer (violation of Convention Articles 6.1 with 6.3c), should review, among other cases, Beuze v. Belgium [GC] 71409/10 09/11/2018, paragraphs 119 - 150.

Here's the text of the first and last paragraphs in the above-referenced case-law.

"119. The Court reiterates that the protections afforded by Article 6 §§ 1 and 3 (c), ..., apply to a person subject to a “criminal charge”, within the autonomous Convention meaning of that term. A “criminal charge” exists from the moment that an individual is officially notified by the competent authority of an allegation that he has committed a criminal offence, or from the point at which his situation has been substantially affected by actions taken by the authorities as a result of a suspicion against him (see Ibrahim and Others, cited above, § 249, and Simeonovi, cited above, §§ 110-11, and the case-law cited therein).
....

150. 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 (see Ibrahim and Others, cited above, § 274, and Simeonovi, cited above, § 120):

(a) whether the applicant was particularly vulnerable, for example by reason of 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 magistrates, or by lay jurors, and the content of any directions or guidance given to the latter;

(i) the weight of the public interest in the investigation and punishment of the particular offence in issue; and

(j) other relevant procedural safeguards afforded by domestic law and practice."

We can see where the Chamber judgment applies (or perhaps does not apply) the above in Knox v. Italy.

For example, with respect to the principles of paragraph 119, the Chamber "wonders" or speculates that Knox was a suspect from the moment her questioning began in the corridor of the police station on 6 November, based on that questioning and the many previous hours she had been questioned prior to 6 November, but, for the sake of argument and perhaps of agreement with the domestic ruling, points out that she was clearly a suspect at the beginning of the second interrogation of 6 November 2007 which terminated around 5:45 am. Yet, she was not formally assigned a lawyer (one that apparently never came to see her; the prosecutor had ordered her held incommunicado until 8 November 2007 [the date of her arrest hearing], a point neglected by the Chamber judgment) until 8:30 am on 6 November.

Regarding the principles of paragraph 150, the Chamber judgment finds that:

(a) Knox was vulnerable because of her age, recent arrival in Italy, and lack of fluent knowledge of the Italian language;

(b) the legal framework unfairly did not exclude her statements because they were themselves considered an offense (the crime of calunnia - malicious false accusation) because of CSC rulings;

(c) Knox clearly had the opportunity to oppose the use of her statements and challenge their reliability or authenticity

(d) the quality of the evidence was deficient and the circumstances in which it was obtained demolished its reliability; the Chamber judgment did not state that the Italian authorities would have known, on the basis of DNA evidence from Kercher's room, clothing and body, that Knox's statements incriminating Lumumba in the murder/rape of Kercher were false on or about 8 November 2007;

(e) although not discussed by the Chamber judgment, the evidence may have been obtained unlawfully, as suggested by the Italian authorities charging Knox with committing calunnia against them (the legal definition of calunnia being to knowingly falsely accuse someone of acts that are crimes under Italian law); the Chamber acknowledged that Knox had credibly accused those Italian authorities of a violation of Convention Article 3 that should have been investigated, but that investigation was vigorously avoided by the Italian authorities and judicial system, leading to a violation of Article 3 under its procedural limb, with insufficient elements of evidence, in the Chamber's view, to conclude beyond a reasonable doubt that there had been a violation of Article 3 under its substantive limb;

(f) according to the Chamber judgment, Knox retracted or modified her statement as of about 1 pm on 6 November, and consistently maintained that retraction throughout the proceedings;

(g) according to the Chamber judgment, Knox's interrogation statements of 6 November were the only evidence of her alleged crime of calunnia against Lumumba, and indeed were the crime, and were the sole basis for Italy convicting her of calunnia against Lumumba.
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Knox was not 'subject to a criminal charge'.
 
Numbers said:
Actually, I am gaining pleasure right now in re-reading THE GENERAL PRACTICE
FOLLOWED BY THE PANEL OF THE GRAND CHAMBER WHEN DECIDING ON REQUESTS FOR REFERRAL IN ACCORDANCE WITH ARTICLE 43 OF THE CONVENTION.

At this moment, I am enjoying this paragraph:

"The members of the Panel consider whether the case warrants referral to the Grand Chamber on the grounds that it is exceptional as indicated in the text of Article 43. They do not seek to impose their views on the merits of the case, nor do they vote to refer a case because they disagree with the Chamber’s reasoning or would themselves have voted differently. The members of the Panel thus do not assess the merits of the case but, as in national leave-to-appeal procedures, express views as to whether the case should be referred to the Grand Chamber because it meets the statutory criteria set out above. Disagreement on issues of fact, on the inferences to be drawn from the facts and/or, for instance, on the point at which, in the particular circumstances of the case, the fair balance between conflicting rights should have been struck does not necessarily mean that the conditions for referral are met. Indeed, the Grand Chamber should not be seen as an appeal court whose function is to correct alleged errors of fact or of assessment of the various features of each individual case. The intervention of the Grand Chamber is instead limited to cases which, by their nature and by the nature of their legal, social and political implications, are capable of having a serious impact on the extent and scope of the protection afforded by the Convention."

I also derive pleasure from the following paragraphs in the Practices of the GC Panel:

"It should not be overlooked, however, that the Panel and the Grand Chamber are separate and differently composed bodies. Their evaluation of the importance of a case from a case-law or policy perspective may therefore be different. Thus, it is quite conceivable that the Panel’s reasons for referral may not be followed by the majority of the Grand Chamber (which may, for instance, decide simply to confirm the Chamber judgment).

It follows that the Panel’s practice cannot be inferred only from the Grand Chamber’s reasoning and that the analysis should be extended to the parties’ requests for referral. When such requests have been accepted, it may be assumed that the Panel has, at least partly, accepted the Government’s or applicant’s arguments."
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It is a given that it is not its function to ascertain or revisit 'facts found'.

It is also a given it will only accept 'referrals' if there is a reasonable prospect of success.

Nothing new or different about La Grande Chambre even if it is French and fancy.
 
Numbers said:
Absolutely correct.

The question is, does the evidence - that is, ECHR's Grand Chamber's record of judgments - conform to the ECHR's claims, which are, in essence, that "the Grand Chamber ... {does not act} as an appeal court whose function is to correct alleged errors of fact or of assessment of the various features of each individual case. The intervention of the Grand Chamber is instead {as shown by its judgments} limited to cases which, by their nature and by the nature of their legal, social and political implications, are capable of having a serious impact on the extent and scope of the protection afforded by the Convention.
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No appeal court of law 'corrects errors of fact'.
 
Numbers said:
To follow-up, let's review the ECHR's legal summaries from the Chamber and the Grand Chamber, respectively, in a case (relevant to Knox v. Italy) that was judged by a Chamber and then accepted in the ECHR's referral process for Grand Chamber judgment.

1. Salduz v. Turkey

Salduz v. Turkey 36391/02 (Chamber) 26/04/2007
Article 6

Article 6-3-c

Defence through legal assistance

Lack of legal assistance during police custody: case referred to the Grand Chamber

The applicant was convicted for aiding and abetting the Kurdistan Workers’ Party (“PKK”, an illegal organisation) and sentenced to imprisonment. Before the Court he complained about the unfairness of the proceedings against him as the submissions of the principal prosecutor at the Court of Cassation had not been communicated to him and as he had been denied the assistance of a lawyer during his police custody.

In its Chamber judgment the Court held, unanimously, that there had been a violation of Article 6 § 1 on account of the non-communication of the prosecutor’s submissions. It further held, by five votes to two, that there had been no violation of Article 6 § 3 (c) on account of the lack of legal assistance during police custody.
The case was accepted for referral to the Grand Chamber at the applicant’s request.

Salduz v. Turkey [GC] 36391/02 (Grand Chamber) 27/11/2008
Article 6

Article 6-3-c

Defence through legal assistance

Use in evidence of confession to police of a minor who had been denied access to a lawyer: violation

Facts – At the material time, Turkish law afforded suspected offenders a right of access to a lawyer from the moment they were taken into custody, unless they were accused of an offence falling within the jurisdiction of the state security courts. The applicant, a minor, was arrested on suspicion of aiding and abetting an illegal organisation, an offence triable by the state security courts. Without a lawyer being present, he gave a statement to the police admitting that he had taken part in an unlawful demonstration and written a slogan on a banner. Subsequently, on being brought before the prosecutor and the investigating judge, he sought to retract that statement, alleging it had been extracted under duress. The investigating judge remanded him in custody, at which point he was allowed to see a lawyer. He continued to deny his statement at trial, but the state security court found that his confession to the police was authentic and convicted him as charged. He was given a thirty-month prison sentence.

In its judgment of 26 April 2007, a Chamber of the European Court concluded that the fairness of the applicant's trial had not been prejudiced by his lack of legal assistance during his police custody.
Law – Article 6 § 3 (c): In order for the right to a fair trial under Article 6 § 1 to remain sufficiently practical and effective, access to a lawyer had to be provided, as a rule, from the first police interview of a suspect, unless it could be demonstrated that in the particular circumstances there were compelling reasons to restrict that right. Even where such compelling reasons did exist, the restriction 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 the instant case, the justification given for denying the applicant access to a lawyer – namely that such access was by law systematically denied for offences falling within the jurisdiction of the state security courts – fell short of the requirements of Article 6. Moreover, the state security court had used the applicant's statement to the police as the main evidence on which to convict him, despite the fact that he denied its accuracy. Neither the assistance subsequently provided by a lawyer nor the adversarial nature of the ensuing proceedings could cure the defects which had occurred during police custody. The applicant's age was also a material factor. As the significant number of relevant international law materials on the subject showed, access to a lawyer was of fundamental importance where the person in police custody was a minor. In sum, even though the applicant had had the opportunity to challenge the evidence against him at his trial and subsequently on appeal, the absence of a lawyer during his period in police custody had irretrievably affected his defence rights.
Conclusion: violation (unanimously).

Article 41: EUR 2,000 in respect of non-pecuniary damage. Indication that retrial was most appropriate form of redress.
____
My comments: This Grand Chamber judgment was the first case in which the ECHR defined the right to a lawyer from the first interrogation by police as a general defense right under the Convention. Some previous judgments had found violations based on specific circumstances related to denial of a lawyer during an interrogation but had not generalized the right in clear language. Thus, the Grand Chamber was generating a new general interpretation of the rights under the Convention in Salduz. This led to a number of states, members of the Council of Europe, modifying their laws to conform to the principles of Salduz.
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Knox was not 'arrested on suspicion of anything' when she freely offered her criminal calumny.
 
Wow Vixen - you really don't (and/or cannot, and/or will not) understand this at all, do you?
 
If Amanda's alleged spontaneous decleration was authentic it would not have required any input from a mediator (Anna Donnino) relating far-fetched personal stories about leg breaks causing amnesia, nor would it have taken around three and a half hours from the time Amanda was taken into custody at shortly after 10.15 to finally make the signed statement at 1.45am.

Glory-hunting Flying Squad cop Edgardo Giobbi throws a spanner in the works anyway by saying " however I have to say Amanda’s screams can be heard in the corridor of the Police Station even if the room is closed,". Nah! Spontaneous declarations don't work like that, psychological leverage might though! He goes on to admit that he planned the whole thing in advance anyway by saying " I gave direct orders to the investigators to bring them in, look I remember it really well, because it was the first time that we carried out a kind of, to do two witness questionings at the same time and I said to go and bring them in, I believe they were in a Pizza restaurant. I can tell you with mathematical certainty I remember perfectly to have arranged for this investigative strategy."

There is no reason to doubt Giobbi's strategy since that's exactly what the cops did. So the spontaneous declaration is all bollocks isn't it? In fact any spontanteity there might have been seems to have come from Amanda's retraction since it was written in the relative absence of pressure.

Hoots
 
TomG said:
If Amanda's alleged spontaneous decleration was authentic it would not have required any input from a mediator (Anna Donnino) relating far-fetched personal stories about leg breaks causing amnesia, nor would it have taken around three and a half hours from the time Amanda was taken into custody at shortly after 10.15 to finally make the signed statement at 1.45am.

Glory-hunting Flying Squad cop Edgardo Giobbi throws a spanner in the works anyway by saying " however I have to say Amanda’s screams can be heard in the corridor of the Police Station even if the room is closed,". Nah! Spontaneous declarations don't work like that, psychological leverage might though! He goes on to admit that he planned the whole thing in advance anyway by saying " I gave direct orders to the investigators to bring them in, look I remember it really well, because it was the first time that we carried out a kind of, to do two witness questionings at the same time and I said to go and bring them in, I believe they were in a Pizza restaurant. I can tell you with mathematical certainty I remember perfectly to have arranged for this investigative strategy."

There is no reason to doubt Giobbi's strategy since that's exactly what the cops did. So the spontaneous declaration is all bollocks isn't it? In fact any spontanteity there might have been seems to have come from Amanda's retraction since it was written in the relative absence of pressure.

Hoots
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Giobbi by name, Gobbi by nature. It's just good old-fashioned Italian bragadoccio. Police don't decide charges, the prosecutor does, nor do they convict, the court does.

All the police do is investigate and keep order, which is what they are paid to do.
 
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