I haven't seen anything to suggest an acquittal at first stage followed by a conviction at second stage would be exceptional, and I can't really see any reason it should be less common than an acquittal following a conviction. I'd guess a confirmation of the first verdict is the most common outcome, but that a reversal in either direction isn't unusual.
I got a different impression, that a conviction at a the Trial of the First Instance and then an acquittal at the Trial of the Second Instance was not unusual at all, but the opposite was in fact rather unusual, perhaps even exceptional for murder cases. I'd be delighted to get firmer information on this, and it just re-occurred to me reading this post you
speak Italian! Could you find out for us? One thing that bugged the hell out of me this whole debate was the percentage of Trials of the First instance that resulted in acquittals or adjustments in the Trial of the Second Instance. I've seen figures from 33% to 60-some percent with the high number coming from our own Machiavelli, and I'm not entirely sure I understood exactly what he was referring to in all instances.
The first two stages of the trial could certainly be seen as part of the same whole, as you say; or all three stages could be seen as part of the same whole; or each stage could be seen individually. Any way you slice it, the fact the prosecution can appeal counts as double jeopardy, as the U.S. understands it.
That's true, which is why I dropped the contention that simply prosecutor appeals are a determinant of double-jeopardy.
Sure, I understand you weren't arguing that the Italian system itself violates the double jeopardy clause. But my point was that - taking your argument to its logical conclusion, and applying U.S. standards of double jeopardy to the Italian system - it is in violation of that clause. Hence the problem with strictly applying U.S. concepts of double jeopardy to a foreign legal system.
My position was more nuanced, in that it allowed for the normal course of the process, but that the Supreme Court of Cassation striking down the acquittal and remanding it for another trial, the basis of the discussion as I understand it, would be an event unforeseen and thus uncovered by treaty and judgment would have to be based on other considerations, at which time questions of double-jeopardy would arise.
Yes, actually I agree with you that the grounds for denying extradition are quite limited, certainly much more so than I’d thought before learning more about it. What made this hit home for me was reading about the Turkish case: the court basically acknowledged that the evidence may well not prove guilt beyond a reasonable doubt, but noted that since an extradition hearing isn’t a trial, the court only needed to find sufficient evidence to show probable cause. Hence despite a possible lack of evidence, and despite a legal process which clearly violates U.S. standards of double jeopardy, it allowed extradition.
I am unsure just how comparable the Italian Court System is to the Turkish one of the Seventies, other than they were partners in 'crime' at the ECHR for violations during that period.
In other words I don't know how to 'translate' that case, I don't know what it means that the General Board struck down the acquittals before the 'Three Judge Panels,' and found him guilty, was that a system where one is (was?) considered guilty until proven innocent?
At any rate do you consider that case an absolute indication of what could or could not be decided by a court in the hypothetical extradition case?
I do not.
So I guess my conviction that extradition wouldn’t go ahead in the Knox case really has no legal grounds, it’s only based on my perhaps cynical belief that a reason would be found to prevent it happening – even if that were quibbling over spelling errors!
I maintain they could refuse extradition on the basis of the circumstances being such that it would impose double-jeopardy on Amanda and potentially Raffaele as well. I don't think overturning convictions and acquittals are necessarily comparable, nor do I think the exceptions you've found apply definitively, though they might be argued by the Italian legates.
As I understand it, there are various options open to the Supreme Court, one of which is overturning the verdict without returning the case to a previous court for re-trial. For example, in
this case the Supreme Court acquitted a defendant who'd been convicted in the first two stages because "il fatto non sussiste".
At this point I don't think it matters either way though, since I think the 're-trial' aspect is a bit of a red herring.
I can't read Italian, so the best I could do was try to puzzle it out through google translate. I got the impression somebody sold this cyclist drugs and then was prosecuted for murder and perhaps (?) other cyclists that also died as a result of the drug-taking cyclist having an accident? Did I get that right? If I understand that all correctly, the Supreme Court simply ruled that wasn't what the law read, which would be its purview. It can't have convictions of acts which aren't actually violations of the law employed to convict them.
I am again curious as to where you get from this the idea that the Supreme Court could void an
acquittal like that, and then convict Amanda and Raffaele? That doesn't make sense to me, the Supreme Court can certainly rule on what is actually law, and (if I've understood that case correctly) must by that virtue, strike down convictions in violations of it. It might actually be forced to do this in the
calunnia case if a Motivation cannot be written that accounts for all the vagaries of the law, including that she must know Patrick to be innocent.
However where does the idea that the Supreme Court of Cassation could
convict Amanda and Raffaele come from?
However, look at the wording of the extradition treaty: the clause only applies when the person has been convicted, acquitted or pardoned by the Requested Party - that is, in this case, the United States. The article doesn't apply to double jeopardy in Italy, if Italy is the party requesting extradition.
That means that there is no double-sovereign exception to the principle of double-jeopardy.
Apparently the current US-Canada treaty is the same, only providing protection from double jeopardy in the territory of the requested state. Hence in
Canada v Schmidt, another extradition case, the judge ruled that the double jeopardy article in the treaty didn’t apply:
That is a good quote! It seems with the above you have crafted an argument that double-jeopardy protections don't even exist in extradition, unless it is to sort out possible 'turf wars' on jurisdiction. It seems to me that's the position the Canadian Supreme Court has taken, which is all well and good for Canada, but not really relevant to the United States, or to the rest of the world who considers it a potential bar on extradition. I think this following quote is more relevant to this specific case though:
Schmidt vs Canada said:
But the courts may intervene if the executive's decision to surrender a fugitive would, in the particular circumstances of a case, violate the principles of fundamental justice. This is, however, a jurisdiction that must be exercised with caution. The discretion to make the decision to surrender is primarily that of the executive and this is an area where it is likely to be far better informed than the courts, and where the courts must be extremely circumspect so as to avoid interfering unduly in decisions that involve the good faith and honour of this country in its relations with other states. In a word, judicial intervention must be limited to cases of real substance. Finally, barring obvious or urgent circumstances, the courts should not ordinarily intervene before the executive has made an order of surrender.
We are dealing with a hypothetical situation where the Supreme Court of Cassation strikes down the Hellmann court verdict, and in your view can then declare Amanda and Raffaele guilty, or in the other view remand the case back to another court for another trial, upon which time either extradition is requested, or they are tried
in absentia and then extradition demanded so they serve their sentence in Italy. That would require a fundamental injustice to occur, Raffaele and Amanda's acquittal which was based on a rational view of the evidence to be scuttled in favor of whichever technicality won the day with the Supreme Court of Cassation.
Therefore perhaps the reason why the courts didn't bar extradition in cases where drug smugglers had their conviction dismissed on a technicality that was reversed, or this case where it amounted to claiming the difference between kidnapping and child-stealing was not distinctive enough, was because it didn't meet the bar of 'real substance?'
My suspicion is that the sequence of events that must occur for that acquittal to be struck down
would meet that bar, and that a gross injustice would occur for Amanda and Raffaele to have their acquittal voided or reversed. Since the principal violated in this travesty, were it to occur, would be that they must stand trial
again for an act they were already acquitted for, my guess is in refusing the extradition request they would invoke the fundamental right of double-jeopardy protection and insist that the Hellmann Court rendered a final judgment which could not be struck down by whatever technicalities Mignini managed to get past that august body.
As another example, the
UK-US extradition treaty provides for double jeopardy protection in the requested state and in a third state, but not in the requesting state.
I get the impression you are looking for exceptions rather than the
rule.
Article 11 AALCO said:
Extradition shall be refused if the offence in respect of which extradition is sought is under investigation in the requested State or the person sought to be extradited has already been tried and discharged or punished or is still under trial in the requested State for the offence for which extradition is sought.
Commentary
The laws and/or treaties of most of the member countries of this Committee contain provisions providing against double jeopardy for the same act. There is, for instance, a provision in the Criminal Procedure Code of Iraq prohibiting double jeopardy and treaties concluded by Iraq with other countries, such as the Iraqi-Egyptian Treaty of l931, contain provisions to this effect. The principle of "Non Bis In Idem" is also observed by the United Arab Republic and the agreement signed by Egypt and Iraq in 1931 stipulates that the requested person may not be surrendered if he has been previously tried for the offence for which his surrender is requested, so that punishment may not be repeated for the same offence.
The extradition agreement concluded between the countries of the League of Arab States contains a stipulation to this effect. The principle of "Non Bis In Idem" is also recognised by Japan and Indonesia. Though all the Delegations at the Colombo Session were in agreement with the principle of providing against double jeopardy for the same act, there was disagreement with regard to the precise wording of the provisions to be included. At the Tokyo Session this Article was, however, unanimously adopted.
Another reference to it's prominence as a legal principal and to extradition treaties is
here on page 3.
Prisonerwatch page 3 said:
2.1 Double jeopardy
Many contain a provision that deals with the issue of ‘double jeopardy’ (also known as ne bis in idem). This principle essentially means that a person should not be tried or punished twice for the same offence. This means that extradition for the purpose of prosecution can or should be refused if the subject has already been tried or punished for the offence (whether in the requesting State, requested State or a third country). The rule applies whether or not the subject was found guilty or acquitted in the earlier trial.
It is important to be aware that domestic law on double jeopardy varies between countries. There may be exceptions allowing for the re-trial of a person that has been acquitted (for example if new evidence is discovered), or an opportunity for the prosecution to appeal an acquittal to a higher Court.
Here's another one indicating that the various applications of the double-jeopardy prohibition on extradition is something that is still in the works and was when this treaty was signed, the 'mandatory' nature of Clause Six being suggestive of that. However Clause Six does
not restrict the objections on this principle to simply the 'requested party,' that's actually a move forward to apply it more universally:
University of Texas Austin said:
The European Commission on Human Rights has in recent decisions indicated that Art. 6(3) of the Convention, which guarantees that a person charged with a criminal offence has certain minimum procedural rights, might under certain circumstances prevent a double conviction in the same Treaty state. [xiv] The foregoing thus justifies the conclusion that the principle of ne bis in idem is a general rule of public international law in the sense of Art. 25 of the Basic Law, which prevents the renewed conviction of a person sought for the same offence in the same state.
Emphasis retained and highlighted
So after reading clause 6 more carefully (and assuming I'm reading it correctly! It's a little ambiguous, but the quote you posted seemed to clarify it), I don't think it would apply to this case at all. I guess the reasoning is that a double jeopardy defence in the 'requesting state' should be raised at trial, not in an extradition hearing.
That was the opinion of the Canadian Supreme Court in washing its hands of the Schmidt decision, not everyone
agrees:
Australian Emergency Management Government Page 27 said:
How will Australia consider double jeopardy?
Double jeopardy is the principle that a person should not be twice tried or punished for the same offence or for offences arising from the same conduct.
The Extradition Act currently provides that a person may not be extradited if the person has been acquitted or pardoned by a competent tribunal or authority in the requesting country or Australia, or has undergone the punishment provided by the law of the requesting country or Australia in respect of the extradition offence or another offence constituted by the same conduct as constitutes the extradition offence. If a person has been acquitted, pardoned or punished for an offence constituted by the same conduct as the extradition offence in a third country, this would currently be considered in the Minister’s general discretion.
Double jeopardy provides important safeguards for the protection of the person’s human rights and should be retained in the extradition process.
That place is on the other side of the world so they might not have caught up to your more advanced views of what double-jeopardy protections should entail in extradition cases.
As above, I don't think clause 6 applies here. However, Italy does have double jeopardy restrictions, written in
Article 649 of the Italian Code of Criminal Procedures. So that would be the determinant as to whether double jeopardy applied in a particular Italian case.
Clause Six simply makes refusal mandatory in those cases, it doesn't automatically allow all other possible infringements on a person's protections from double jeopardy. The UN explains it
thusly:
UN Model Extradition Treaty Page 18 said:
Purpose
50. Subparagraph (d) applies the rule against double jeopardy, or non bis in idem, by providing a bar on extradition if the person has already been tried in the requested State for the offence for which extradition has been sought.
Application
51. States may wish to also apply the principle of non bis in idem/double jeopardy in cases involving the requesting State or a third State where the person has been subject to a final judgement and has served his sentence. This could be an optional exception to extradition rather than a mandatory ground if desired.
More
commentary from the American Bar Association:
ABA said:
Non bis in idem Or Double Jeopardy Provisions: Many modern extradition treaties contain provisions prohibiting extradition when the person sought has been convicted or acquitted for the same offense in the country from which extradition is sought or in a third country. The increased international mobility of many of today's criminals, combined with the inherently transnational nature of much contemporary organized crime, corruption and terrorism, creates a growing need for the interpretation of such double jeopardy or non bis in idem provisions.
Suggestion: As a practical matter, if there exists no clear, mutually accepted traveaux prepatoires or negotiating history to the treaty which sheds light on this issue, the answer will likely turn upon the Requested State's interpretation of the clause and its applicable domestic law. This may become particularly difficult where the Requested and Requesting States rely upon fundamentally different legislation such as was reviewed earlier in this paper.
I'm going to post the Google Translate of article 649, those who wish to guarantee their sanity should avert their eyes!
Article 649 said:
Prohibition of second trial.
1. The defendant is acquitted or convicted by criminal order or become irrevocable can not be prosecuted again for the same act, even if it is otherwise considered for the title, for the degree or circumstances, except as provided by Articles 69 paragraph 2 and 345.
2. If this is in spite of `new initiate criminal proceedings, the judge in every stage of the process pronounce acquittal or not to prosecute, by reading out the cause of the device.
This would seem to prevent another trial, and article 69 paragraph two didn't seem to apply, nor did 345, seeming to refer to sentencing regarding aggravations and mitigations, and the latter to defacing
billboards? One wonders why the exception would occur for such a desultory offense!
At any rate unless I see evidence to the contrary, it's my suspicion that another trial after an acquittal in the Trial of the Second Instance would in fact be an exceptional event, and one that might subsume this article 649 with technicalities elsewhere that wouldn't necessarily have to be recognized anywhere else.
The various decisions in the Turkish case could certainly be seen as part of the same process (and were obviously seen that way by the U.S. court) but only in the same way that the three stages of an Italian criminal case can also be seen as part of the same process. As you say, Siddali was eventually found guilty by the General Board. However, he was initially acquitted by the first court, following which the prosecution appealed to the Supreme Court, which annulled the acquittal and returned the case to the first court for a retrial - i.e. exactly what would happen if the Italian Supreme Court annulled the Hellmann decision and returned the case to the second court for retrial. When the first court again stubbornly acquitted Siddali, the case was reviewed by the General Board, which finally convicted him.
Which suggests that the General Board has purview over deciding the guilt or innocence of the accused, a position that has not been advanced by anyone else but yourself regarding the Italian Courts. This makes it a very different body than the Court of Cassation, unless you are maintaining that because of that instance in Turkey, that you suspect the Italian Supreme Court has the same status? I honestly don't know how to translate this case, I don't know what the 'three judge panels' are authorized to do, what possible comparisons could be made to Italian or American courts, nor whether this would have occurred today and thus has no relevance to the current issue.
To me the parallels seem obvious: here's a case which has gone back and forth between various courts following prosecution appeals, where retrials and acquittals have occurred before the final conviction, yet all this obviously didn't constitute double jeopardy for extradition purposes.
It could mean that unlike American, British, or Italian Courts that those 'courts' of 'three judge panels' have (or had) very little authority in the decision of a case, that power is (or was) vested solely in the General Board from the outset.
In the Canadian case, I don't think it matters why they were acquitted initially, since the U.S. court wouldn't have been considering the merits of the case when it ruled on double jeopardy. The important thing is that the court decided the successful prosecution appeal did count as double jeopardy by U.S. standards, but ruled that this was no barrier to extradition. Hence U.S. concepts of double jeopardy obviously aren't strictly applied in extradition cases.
I've realized that, you've required me to refine my argument!
Thus there is no absolute barrier like I thought might have applied, the Fifth Amendment just seemed to leap out at me as the obvious reason and it turns out that's not the case. However I don't think that case becomes proof that in all instances the US has forsworn raising double-jeopardy as a barrier to extradition. I suspect the matter might have been addressed by the Canadian Supreme Court in the Schmidt case by this judge here simply deciding it was banal technicality that let them walk in the first place, thus even though he was amused by their
non bis in idem defense and allowed that it would be a bar to being prosecuted in America, he wasn't going to create an international incident over it.
I guess my current position (having noticed the 'Requested State' thing!) is that clause 6 doesn't apply at all, so any appeal would have to reference the Fifth Amendment; and that previous rulings show that U.S. courts don't strictly apply U.S. concepts of double jeopardy in extradition cases, recognizing that different legal systems inevitably have different concepts of double jeopardy.
However there is also the
legal principle of double jeopardy that doesn't just exist in Clause Six, nor the Fifth Amendment, but is pretty well recognized in the international legal world, that Italy might be out of step with
if there is another trial for murder because the Hellmann acquittal is struck down. I maintain that would be an extraordinary event,
especially in this specific case, and would therefore be treated as such.
The extradition court has the capacity to refuse extradition for any number of reasons, including that they think the
prosecution corrupt, like that Canadian judge did of American officials, but my guess is were push come to shove they'd be a bit more
diplomatic and simply say that a retrial would be a violation of her human rights, and that broad category is the reserve of
non bis in idem.
I refer my honourable friend to the response I posted a few paragraphs above (the one about the Turkish/Canadian cases).
Have we had this conversation before? Like a year ago or so?
