Continuation Part 21: Amanda Knox/Raffaele Sollecito

[Diocletus]

It seems in Italy, it is very common to wire tap people. It doesn't mean any obligation to warn you or make you a 'formal suspect'.

Are you claiming that no-one in the Kercher case should have been covertly surveilled, and if so, how do you propose police go about solving serious crime?

That's all well and good, but doesn't mean that you can interrogate those people without a lawyer and then use the fruits of your illegal interrogation to convict them of a crime.

 

[Diocletus]

On the complaint in relation to Art 3, this requirement to register a querala - I haven't seen a time limit in the Italian CP. Maybe there is one. But surely, the ECHR must conclude that since the authorities were aware of Knox's allegations, then the requirement for a formal querala must be superfluous.

The thing about the Art. 3 claim is that the complainant does not need to prove that the trial was unfair (i.e., the statement was used to convict the defendant). An Art. 3 violation stands alone and will be proved if the authorities failed adequately to investigate a claim of degrading treatment (coercive smacking). This avoids Machiavelli's whole issue about the accusation being available to prove a crime other than the crime that was being investigated (murder).

 

[Diocletus]

It looks like all the charges for all three defendants flow from the Notice concluding the preliminary investigations delivered by Mignini in late June 2008. The callunia charge did not come later than the murder charge. But we know that Knox was accused of the murder in November. I think the Art 6 claim therefore is in relation to this, which could have equally applied to the murder charge. They took nearly 8 months to reach a charging decision and reserve themselves 12 months. So, this claim is essentially about the incompatibility of Italian law with the convention, perhaps.

Well, there are the formal "charges", but also the arraignment proceedings before the idiots, Matteini and Micheli (and maybe someone else). I don't believe, but could be wrong, that callunnia was raised in these proceedings, although Patrick was released from jail in November, so they certainly could have charged callunia at that point.

 

[Bill Williams]

Wrong. The MR does not rule 'innocent' it rules 'insufficient evidence' (='not proven').

In addition, the ECHR will want to read the legal points of the MR. You will recall the MR branded Amanda as a serial liar.

It also found she was not coerced, but covered for Rudy.

The ECHR will soon realise they are dealing with a hardened manipulator and unreliable witness.

And if the ECHR weren't to realize this, would you change your tune? Or would you accuse Strasbourg of Masonic, political interference?

It's best to state stuff like this beforehand - else you might be accused of being confirmation biased.

 

[Kauffer]

Well, there are the formal "charges", but also the arraignment proceedings before the idiots, Matteini and Micheli (and maybe someone else). I don't believe, but could be wrong, that callunnia was raised in these proceedings, although Patrick was released from jail in November, so they certainly could have charged callunia at that point.

Yes you're right about this. Except there were no charges for anything until June - just an investigation, officially. But nothing could have been raised about callunia until Lumumba was released. Clearly when Mignini interviewed Knox in December the issue of the naming came up but there doesn't seem to be anything else until the charge was raised in June.

So, it seems the first anyone knew anything about the concept of callunia was when the charge was raised.

 

[Numbers]

It looks like all the charges for all three defendants flow from the Notice concluding the preliminary investigations delivered by Mignini in late June 2008. The callunia charge did not come later than the murder charge. But we know that Knox was accused of the murder in November. I think the Art 6 claim therefore is in relation to this, which could have equally applied to the murder charge. They took nearly 8 months to reach a charging decision and reserve themselves 12 months. So, this claim is essentially about the incompatibility of Italian law with the convention, perhaps.

On the complaint in relation to Art 3, this requirement to register a querala - I haven't seen a time limit in the Italian CP. Maybe there is one. But surely, the ECHR must conclude that since the authorities were aware of Knox's allegations, then the requirement for a formal querala must be superfluous.

The problem for Italy is that Amanda was never warned according to Italian legal procedures during the interrogation. Nor was she provided with a lawyer or a neutral, fair interpreter. And she did not come to the station to provide any statement; it was extracted from her during interrogation. She retracted her statement in two memorials, written in English by her on Nov. 6 and then Nov. 7. The memorials indicate that her statements of Nov. 6 against Lumumba were extracted from her against her will. That itself is a violation of Article 3, as I understand it, under inhuman or degrading treatment.

The Gemelli CSC panel, which reviewed the two Nov. 6 statements, ruled that the first could not be used against Amanda and that the second one (the "spontaneous statement") could not be used against anyone.

However, then the Italian court system somehow decided that the statements, or her first memorial, could be used against her for calunnia. But the first memorial specifies how she was coerced to make the statements during interrogation.

So Italy is in a no-win condition before the ECHR for the violations of Articles 3 and 6.

The memorials and her statements in court describing the mistreatment during the interrogation will be sufficient notice to the prosecutor or other Italian authorities to have conducted an investigation. According to ECHR case-law, it is the responsibility of State authorities to investigate any credible allegation of a violation of Article 3. The querala is a false issue in this case; if it were required, then the police or prosecutor should have notified Amanda after they received her Nov. 6 memorial, in which she stated that she had been subjected to police mistreatment, including slaps to the head and threats. The querala would have gone to the same police and prosecutor who had ignored the memorial and who were, in fact, the agents inflicting or in charge of those inflicting the (alleged) mistreatment. So a querala would not have provided a practical or effective remedy.

 

[Kauffer]

If you walk into a police station and make a confession or allegation, there is no obligation to provide legal help.

She didn't. She walked into the police station to wait for her boyfriend. The cops then took her into an interrogation room and questioned her without a lawyer , the product of the interrogation later used to convict her of callunia. That's against the law.

 

[Machiavelli]

The problem for Italy is that Amanda was never warned according to Italian legal procedures during the interrogation. Nor was she provided with a lawyer or a neutral, fair interpreter. And she did not come to the station to provide any statement; it was extracted from her during interrogation. She retracted her statement in two memorials, written in English by her on Nov. 6 and then Nov. 7. The memorials indicate that her statements of Nov. 6 against Lumumba were extracted from her against her will. That itself is a violation of Article 3, as I understand it, under inhuman or degrading treatment.

The Gemelli CSC panel, which reviewed the two Nov. 6 statements, ruled that the first could not be used against Amanda and that the second one (the "spontaneous statement") could not be used against anyone.

However, then the Italian court system somehow decided that the statements, or her first memorial, could be used against her for calunnia. But the first memorial specifies how she was coerced to make the statements during interrogation.

So Italy is in a no-win condition before the ECHR for the violations of Articles 3 and 6.

As I said, truth is there is quite a no-win situation for Amanda Knox as for art. 3. Amanda Knox did not seek any domestic remedy for an art. 3 violation.
Art. 6 is a thechnical thing that could be potentially separate, as long as we are talking about the usability of legal papers in a trial. But in the specific case, the merits of a claim on art. 6 would depend on art. 3.
There is no claim of coercion in Knox's memorial; but as for her calunnia, the same memorial places further false evidence and is a calunnia itself.

 

[Kauffer]

The problem for Italy is that Amanda was never warned according to Italian legal procedures during the interrogation. Nor was she provided with a lawyer or a neutral, fair interpreter. And she did not come to the station to provide any statement; it was extracted from her during interrogation. She retracted her statement in two memorials, written in English by her on Nov. 6 and then Nov. 7. The memorials indicate that her statements of Nov. 6 against Lumumba were extracted from her against her will. That itself is a violation of Article 3, as I understand it, under inhuman or degrading treatment.

The Gemelli CSC panel, which reviewed the two Nov. 6 statements, ruled that the first could not be used against Amanda and that the second one (the "spontaneous statement") could not be used against anyone.

However, then the Italian court system somehow decided that the statements, or her first memorial, could be used against her for calunnia. But the first memorial specifies how she was coerced to make the statements during interrogation.

So Italy is in a no-win condition before the ECHR for the violations of Articles 3 and 6.

Yes, the product of an illegal lawyerless interrogation and its aftermath while she remained detained in the questura were used to convict her. However the art 3 claim relates to the assault and does not depend on a finding for her in the art 6 claims.

 

[LondonJohn]

The problem for Italy is that Amanda was never warned according to Italian legal procedures during the interrogation. Nor was she provided with a lawyer or a neutral, fair interpreter. And she did not come to the station to provide any statement; it was extracted from her during interrogation. She retracted her statement in two memorials, written in English by her on Nov. 6 and then Nov. 7. The memorials indicate that her statements of Nov. 6 against Lumumba were extracted from her against her will. That itself is a violation of Article 3, as I understand it, under inhuman or degrading treatment.

The Gemelli CSC panel, which reviewed the two Nov. 6 statements, ruled that the first could not be used against Amanda and that the second one (the "spontaneous statement") could not be used against anyone.

However, then the Italian court system somehow decided that the statements, or her first memorial, could be used against her for calunnia. But the first memorial specifies how she was coerced to make the statements during interrogation.

So Italy is in a no-win condition before the ECHR for the violations of Articles 3 and 6.

Indeed. And IMO Mignini ought to face very serious censure at the very least for his very knowing role in the "spontaneous declaration". As has been discussed in this thread many times before, there's an extremely strong argument to be made that Mignini was deliberately engaging in a calculated act to extract something that could be termed a "spontaneous declaration" from Knox, and which then potentially could be used against her in court.

I believe this is a well-worn trick practised by deviant PM's such as Mignini, in collaboration with the police. The trick is pretty simple and relatively easy to play in a linear fashion: 1) the police and PM suspect someone of a criminal offence; 2) the police interrogate that person as a "witness", with no recording of the interrogation and virtually no notes, and use improper and unlawful methods to extract some form of confession; 3) the PM then comes in and acts like a friendly facilitator to the by-now broken and confused suspect, and says something along the lines that he (the PM) can try to help the suspect but first he needs to find out what the situation is, so why doesn't the suspect tell him exactly what he (the suspect) just told the police. The PM will just sit there and write it all down and not ask questions.

And voila! You get something that can be presented to the courts as a "spontaneous declaration", when in fact it's the product of deliberate choreographed deception. In England & Wales, this sort of activity might well earn its architects the sack.

 

[Kauffer]

Several people had their phones tapped/wired. (For example, Purton, Khiri, Kokomani.)

Police have to be able to carry out investigations without alerting potential perpetrators. In the UK the police can get a magistrates warrant to intercept your calls (or at least, they used to).

It seems in Italy, it is very common to wire tap people. It doesn't mean any obligation to warn you or make you a 'formal suspect'.

Are you claiming that no-one in the Kercher case should have been covertly surveilled, and if so, how do you propose police go about solving serious crime?

Brusco v France applies to the issue of interviewing suspects, calling them witnesses and not giving them lawyers - you can't do it.

But if you don't like that then:

Salduz v Turkey applies to the issue of using incriminating statements against defendants where no lawyer was present when the statements were made.

Either way or both, your argument is stumped.

 

[Machiavelli]

None of this matters because the courts have already established that the interrogators at a minimum put her in a position of grave psychological pressure, and that she should have had a lawyer but did not.

It matters a lot as for the reliability of LondonJohn.

All courts - and I mean all of them - agreed that Knox lied voluntarily, maliciously, and repeatedly. Not even one judge ever disagreed on this. The courts also established that Knox followed a behaviour meant to falsely accuse that was a prolonged behaviour, that she repeatedly place false evidence even in statements like the "memoriale" that she declares to having written voluntarily and courts pointed out how she repeated her false accusation even when she was not withstanding any psychological pressure.

Moreover, psychological pressure could be a mitigating factor but it is no excuse. Most crimes are committed by people under psychological pressure, that doesn't make them become innocent. One can't claim he is not responsible of a stabbing just because when he stabbed he was feling under psychological pressure.

 

[Machiavelli]

Yeah. Mignini was in the control room listening to Knox's screams until he entered and took her statement, later in true liar fashion mischaracterizing himself as a mere notary. What a POS.

The courts have already decided that she should have had a lawyer, and its obvious that this lawyer should have been provided before she was asked to sign any statement that the police typed up for her, so I'm not sure what the argument is here.

You are lying. You know Mignini was not in the control room - and nowhere you can read anything like that in the trial papers.

All courts - no exception - established she lied voluntarily.

 

[Machiavelli]

And if the ECHR weren't to realize this, would you change your tune? Or would you accuse Strasbourg of Masonic, political interference?

It's best to state stuff like this beforehand - else you might be accused of being confirmation biased.

Strasbourg cannot cancel Knox's calunnia conviction.

 

[Diocletus]

Amanda Knox did not seek any domestic remedy for an art. 3 violation.

Sure she did. She sought to have the coerced statements thrown out as a basis for convicting her of a crime. When the Italian courts refused this relief, she appealed to the exhaustion of her remedies.

Incidentally, I seem to recall that there is a special Art. 3 exclusionary rule, which provides that statements elicited in violation of Art. 3 (i.e., through torture/illegal coercion) cannot be used for any purpose whatsoever.

 

[Kauffer]

As I said, truth is there is quite a no-win situation for Amanda Knox as for art. 3. Amanda Knox did not seek any domestic remedy for an art. 3 violation.
Art. 6 is a thechnical thing that could be potentially separate, as long as we are talking about the usability of legal papers in a trial. But in the specific case, the merits of a claim on art. 6 would depend on art. 3.
There is no claim of coercion in Knox's memorial; but as for her calunnia, the same memorial places further false evidence and is a calunnia itself.

Art 6 claims do not depend on Art 3, nor vice versa. This whole querala thing is not going to wash. As Diocletus pointed out, logically the courts should have prevented Knox from raising the assault as part of her defence in the absence of a querala.

The art 6 claims are indefensible by Italy - no lawyer, statements used to convict and mediator who is an agent of the police interjected herself in the proceedings.

 

[Machiavelli]

lol

More like if the so-called evidence implicated either of the two it's Raffaele:

His alleged bloody footprint
His knife

The crime scenario works better too with just him. He drugs Amanda for an alibi and slips out, then gives her up to the police knowing she can't implicate him.

No, because there is Knox's blood in the bathroom, because Knox must have let him in, because Knox is the suspect who told most lies, because the motive of the crime was mostly personal rage (someone closer to Meredith), because Sollecito alone wouldn't need to stage a burglary (that points to the flatmate), because the bloody & luminol footprints belong to multiple perpetrators, because Amanda Knox was there (she even remembers the scream) and because it is a proven fact that there were multiple murderers (so no Sollecito alone scenario could fit). And for many other reasons.

 

[Kauffer]

Strasbourg cannot cancel Knox's calunnia conviction.

No, but Italy must. It's the law in your country - any art 6 finding and the verdict is toast.

 

[Machiavelli]

Art 6 claims do not depend on Art 3, nor vice versa. This whole querala thing is not going to wash. As Diocletus pointed out, logically the courts should have prevented Knox from raising the assault as part of her defence in the absence of a querala.

The art 6 claims are indefensible by Italy - no lawyer, statements used to convict and mediator wh is an agent of the police interjected herself in the proceedings.

Art 6 claims depend on art. 3 in ths case, because the failure to claim wrongdoing by the defence is not just a formal element, it is also a probative element in the merits of the claim. It not just makes a claim of violation of art. 3 inadmissible, it is itself also evidence that there was no violation (because it is not realistic to assume that the lawyers would be violating the code of ethics).

 

[Machiavelli]

No, but Italy must. It's the law in your country - any art 6 finding and the verdict is toast.

No. There is no power in Italy who could cancel a definitive verdict. Abandon the idea.
The theoretical possibility in the most exceptionally favourable (to Knox) scenario is that she would be entitled to a trial review, leading to a second Dorigo case.