Desert Fox
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More my argument is that the scientific community might take more interest in discussions on this board than many.
Continuation Part Seven: Discussion of the Amanda Knox/Raffaele Sollecito case
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More my argument is that the scientific community might take more interest in discussions on this board than many.
Caper
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anglolawyer
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Confirmed LJ. To me, the 'average' person takes no more interest in this case than they do in many other topical issues. Nothing wrong with that. This thread is not for that person. Nothing wrong with that either.
On the point of the thread, I don't know how much, if any, influence it has had or might have on real events in the case itself but, even if it had none at all, it's residual and extremely important role is to ensure that justice is seen to be done by scrutinising events in as much detail as the constraints of an Internet forum permit. Of course, it is not solely or mainly responsible for this seeing but this aspect of its role is not negligible IMO. If Amanda and/or Raffaele go back to jail for 20+ years it will be important that someone on the outside is still watching.
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anglolawyer
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Treaty signatories are obligated to give effect to the court's rulings but it is not specified how. I think article 46 is the relevant one but I have to check.
I was looking at a case the other day concerning a share-price fixing scandal of the 1990s. The defendants were forced to answer questions about share dealings under regulatory powers depriving them of their right to silence and then the resulting material was used to convict them. They appealed and the ECHR ruled their convictions unfair but all the UK government did to 'implement' the decision was change the said regulatory laws. The convictions were not over turned (if memory serves).
Desert Fox
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It is important to know what the other side is arguing. . . .
Got into a debate with a Holocaust Denier recently for that reason.
There is a lot of fantasy in this timeline
LondonJohn
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No, the UK didn't ignore any ECHR rulings.
Basically, the situation is this: the ECHR can mandate signatory states to apply appropriate remedies where it has found human rights breaches. It is up to the state in question to satisfy the remedy in any way it sees fit, but satisfy the remedy it must. Or else it must withdraw as a signatory state (which has all sorts of other ramifications).
The ECHR ruling that I think you might be referring to is the one regarding so-called "whole life tariffs" for the most extreme types of murderer. In summary, the ECHR ruled that it is an unlawful breach of human rights for a court to (in colloquial terms) lock someone up and throw away the key. The England/Wales courts have a sentencing option of whole life tariffs for the most heinous murderers. In the past, this meant that the offender was sent to prison for the whole of his/her natural life, with no possibility whatsoever of ever being released*.
The ECHR ruled that such an approach was unlawful. They ruled that all prisoners must have their custodial status reviewed at reasonable periods. The ECHR instructed the UK to apply appropriate remedies. What the UK was forced to do, therefore, was to offer sentence reviews to every individual who had been sentenced to a whole life tariff (and I believe that process has now been completed). And the UK was also forced to take steps to ensure that all future sentencing met the ECHR's requirements. What happened last week was that it was ruled that the imposition of whole life tariffs is still lawful, and instructed judges that this sentencing option is therefore still open to them. However, when a whole life tariff sentence is handed down, there must now also be at least one opportunity for a review of the sentence at some years down the line. In other words, the courts can no longer "lock someone up and throw away the key".
There's another important point here: these sorts of issues are overarching issues of legislation. They are different, therefore, from individual issues where an individual's human rights may have been breached in an extra-judicial and unlawful way even by the standards of the state in question. The Knox/Sollecito case is actually a hybrid case: there have potentially been breaches both within and outside Italian legislation. So it's possible that the ECHR may require changes to Italian criminal legislation, as well as requiring specific remedies that pertain to Knox's/Sollecito's treatment.
And in the event of the ECHR ruling in Knox's/Sollecito's favour, the Italian government will be bound either to comply or to withdraw as a signatory state. In practice, this will almost certainly mean (depending on the exact nature of the ECHR ruling) that Knox and Sollecito will either have to a) be retried, with all elements that were ruled human rights breaches excluded from the retrial, or b) be automatically acquitted. It's my personal opinion that if the ECHR found for the sorts of human rights breaches we are discussing here, there would be no logic whatsoever in Italy even attempting a retrial. I think therefore that any significant ECHR ruling in Knox's/Sollecito's favour would necessarily result in their convictions being quashed.
(Again, though, it's important to note that the ECHR cannot force Italy to overturn the convictions or to retry, but it can (and would) force Italy to apply full remedies. And in this case, this in practice means that Italy would have to retry (excluding all human-rights-breaching elements) or acquit, in order to be able to apply the required remedy.)
* In England/Wales, murder always carries a life sentence, but many are confused as to what that actually means. It means that the person is on licence (i.e. subject to monitoring and certain restrictions) for the whole of their remaining life. It does not mean that the person must spend the rest of their life in custody (although that is a possibility). What happens (when the tariff is not "whole life") is that the sentencing judge issues a life sentence with a recommended minimum term of X years (where X is usually something between 10 and 25 years). The offender is typically then eligible for his/her first parole hearing at 2/3 of this recommended minimum term. However, at each parole hearing, the parole board has the right to refuse parole if they feel that the offender should not be released back into the community. Therefore, it's entirely possible (though very rare) for any "life" prisoner to be continually refused parole and to remain in custody for the rest of his/her life.
Yeah, that's what I thought.
In the world of politics, the hope that a positive ECHR ruling in this case will lead to Italy changing its decision in any meaningful way is nothing but wishful thinking, in my opinion.
anglolawyer
Banned
No, LK, I don't think it is. If the ECHR ruled the convictions unlawful as having violated the defendants' rights to a fair trial Italy would be obliged (by treaty) to implement the decision. That would involve some combination of paying compensation, costs, release from prison and/or re-trial. I don't think Italy could just ignore the decision, not without being in breach of the treaty. What the court does not do is tell Italy how to implement its ruling.
LondonJohn
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No, you're wrong (even though I just suspect that you are wishing it to be this way....).
In the case to which anglo refers (the Guinness share price manipulation case), the trial in question took place many years (1990)before the implementation of the current Human Rights Act (1998), which was the first time that England and Wales become fully beholden to the ECHR.
And that is why no retrial or directed acquittal was required. No other reason than that. However (as anglo points out), the UK was beholden to apply appropriate legislative remedies to endure that no such breach happens again. Had the trial taken place after 2008, there is no question whatsoever that the UK would have been required to apply proper remedies to the individuals concerned, and that these remedies would, without any doubt, have had to have been either a quashing of the convictions or retrials excluding the human-rights-breaching evidence/testimony. And the UK would have complied.
I wish they weren't winning.
Yummi says he is close to 100% certain the Italians will seek extradition for Amanda on confirmation of the verdict. He said this on TJMK two days ago. Who would bet against him? John Kerry is kind of aggressively silent. (I am probably paraphrasing inaccurately). All I can say is to abandon this thread would be a sin of omission.
LondonJohn
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Why is it that a tiny voice inside my head tells me that some people have a vested interest in arguing against certain people's positions just for their own sake............?
Isn't the UK in the process of ignoring a EHRC ruling on voting rights of prisoners?
http://www.equalityhumanrights.com/...-result-in-damages-awards-advises-commission/
LondonJohn
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And yes, the position as you see it is exactly how I also see it. The last sentence is important. However, it allows sophists or ignoramuses to say that the ECHR cannot force the Italian courts to reconsider Knox's/Sollecito's convictions. In practice, of course, the ECHR can - and would - do exactly that by ordering the application of full remedies. As you say, it would then be up to Italy to choose how to fulfill that obligation - but (especially if the ECHR finds for multiple serious human rights breaches) it would be functionally impossible (in my opinion) for the Italian state to do anything other than quash the convictions.
anglolawyer
Banned
Cutting and pasting the actual text of article 46 proves to be ridiculously difficult. I do have this:
Binding force: Article 46(1) ECHR: ‘The High Contracting Parties undertake to abide by the final judgement of the Court in any case to which they are parties.’
Execution of judgements: Article 46(2) ECHR: ‘The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.’ Additionally, according to Articles 3 and 8 of the Statute of the Council of Europe, the Committee of Ministers has the power of expulsion of recalcitrant states.
From here
Binding force: Article 46(1) ECHR: ‘The High Contracting Parties undertake to abide by the final judgement of the Court in any case to which they are parties.’
Execution of judgements: Article 46(2) ECHR: ‘The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.’ Additionally, according to Articles 3 and 8 of the Statute of the Council of Europe, the Committee of Ministers has the power of expulsion of recalcitrant states.
From here
No more so than people clutching at straws to find ways to reverse an Italian judgement......
Ignore. Wrong committee. Sorry.
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LondonJohn
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No. Again, this is an issue that is widely misreported and misinterpreted.
Firstly, the UK is currently considering how to apply the appropriate remedy. There is no chance that the UK will wholly ignore the ECHR rulings. The main issue is one of interpretation. The ECHR has (in essence) ruled nothing more that that a blanket ban on prisoner voting is a human rights breach, and that the withdrawal of sufferage must be proportionate.
In other words, the ECHR is implying that it's probably unlawful to remove the vote from someone who has been imprisoned for six weeks for having no car insurance, if an election happens to fall while (s)he is in custody. But it's not implying that it's unlawful to remove the right to vote from someone who has a life sentence for murder.
Therefore, the UK has to decide how and where to draw that line, since there is no explicit guidance from the ECHR. And at the same time, it is trying to push the line as far up the scale as it thinks the ECHR might "allow", because of public opinion on the matter. Therefore, we are currently in a "phoney war" period of the UK trying to figure out what will be acceptable as a remedy and what will not.
Once again, this is a legislation-based issue, and one which has an enormous amount of room for interpretation. That's an entirely separate situation from one where the ECHR rules on specific, explicit human rights breaches to particular individuals. In those cases, there is usually little or no room for interpretation. And that would be the case if the ECHR finds in favour of Knox/Sollecito. And the remedy will be absolutely clear.
LondonJohn
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You're mixing up your acronyms.
This IS an ECHR (European Court of Human Rights) issue. The article you linked is about another body - the EHRC (Equality and Human Rights Commission), a statutory UK advisory body with no powers in law - advising the UK government on how to implement the remedies demanded by the ECHR (and what, in their opinion, would and would not satisfy the ECHR).
anglolawyer
Banned
Virtually nothing is in the law but I am with LondonJohn on the likely consequences of a favourable ECHR judgment.
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