Certainly the CSC said that all the evidence ('uniform and global') should be evaluated in the re-do second level trial, and a conclusion drawn from re-evaluating all the evidence, and particularly asked for additional examination of the knife. {1} Reading the cited cases from ECHR, they do suggest that in this case all the testimony should be re-heard as if de novo including an opportunity to question witnesses (including expert testimony). Nencini probably made a procedural error in not running the case as if it was a second level trial de novo on the murder etc. charges. (This may have been acceptable in Italian jurisprudence, but probably not according to ECHR rulings). {2} Given that the callunia charge had been finalised, the evidence on this should probably not have been represented, the civil party to this excluded. This really did seem to be double jeopardy in an inappropriate fashion. Knox had been tried and convicted of callunia by Hellman, and the conviction confirmed, then gets retried and the penalty increased. I wonder if the ECHR will consider this? {3} Alternatively since this case actually seems on-going and presumably the ISC will have to confirm the penalty from Nencini this may mean Italy could claim that the case is on-going so not eligible for ECHR. {4} I think that if a claim is made to ECHR in due course on murder the failure to re hear the case including opportunity to re-question all witneesses will be one of the grounds.
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You have brought up some important points. Some comments on them:
1. This is an extremely important point for cases before the ECtHR. In the case-law, ECtHR has stated that a conviction after an acquittal on the same evidence requires that the convicting court conduct a full trial, examining all witnesses and evidence and must be well-reasoned. Otherwise, the conviction is viewed by ECtHR as an arbitrary ruling.
2. There are really two differing calunnia charges.
The Hellmann court convicted Amanda Knox, with CSC confirmation, of a charge of (simple) calunnia. This apparently {and approximately} is a charge that one has made a false accusation against someone to the police but without any intent to benefit one's self by the charge [or without malicious intent]. The theory here is that the accusation was made by Amanda Knox to relieve the pressure of the police interrogation, and not for a malicious purpose.
The Nencini court has provisionally convicted Amanda Knox of
aggravated calunnia. This is {approximately} a charge that one has made a false accustion against someone to the police with the intent to benefit one's self by the charge [and with a malicious intent]. The theory here is that the accusation against Patrick Lumumba was in furtherance of protecting Amanda Knox and others from police suspicion of being involved in the murder/rape of Meredith Kercher.
Amanda Knox's application to the ECtHR can only be for the finalized charge of (simple) calunnia, because the Convention allows only cases that have exhausted all domestic remedies to be heard by the ECtHR. The Nencini judgments have not yet been reviewed by the CSC, but the review will possibly begin with the hearing of the appeals of the Nencini verdict by CSC scheduled to begin March 25, 2015.
I am assuming the primary question that ECtHR would face is whether a person in Italy can by Convention standards of fairness be convicted of calunnia, a verbalization and not an action, when the calunnia is the product of an interrogation, alleged to be coercive, without the presence of a lawyer for the subject. The alleged crime of verbalization and the incriminating statement are identical and the only evidence for the calunnia conviction. In case-law, ECHR has held that a suspect's lawyer must ordinarily be present from the first questioning of a suspect by police, and that a conviction that relies on any statement from a suspect interrogated without a lawyer is (except under certain circumstances, as discussed in Ibrahim et al. v the UK) unfair.
3. Italy may claim the calunnia case is ungoing and therefore Amanda Knox's application on that conviction is inadmissible. I do not believe that the ECtHR would accept that argument, since there are two separate calunnia charges as pointed out in #2 above. And the CSC has finalized a conviction on one. Thus, an Italian counterclaim that the calunnia case was ungoing would contradict Italy's own final judgment and indicate that Italy was pursuing double jeopardy for calunnia, and DJ is not allowed under the Convention.
4. This may be covered in #1 above.
