Continuation Part 5: Discussion of the Amanda Knox/Raffaele Sollecito case

[LondonJohn]

A specific and exceptional reason might be, for example, that the police had arrested a terrorist suspect who had information about the whereabouts of a bomb on a plane and who needed to be further interrogated to get at its whereabouts. Or it might be a member of a gang on whom the cops were about to launch a raid and who might tip them off if given access to a lawyer. Or it might be the suspect nominated and insisted on receiving advice from a lawyer strongly suspected on bona fide and substantial grounds of being implicated in the same crime etc etc

It cannot reasonably be the mere fact the charge is serious nor that there is more than one suspect. Neither of those things is in any way exceptional.

And an objective reading of the code make it absolutely clear that these are precisely the sorts of exceptions that might trigger the "no lawyer" enactment. Particularly in a country where the lower third is riddled with corruption and organised crime, and where corrupt lawyers routinely do the dirty work of gangsters.

But it's embarrassingly obvious - as you point out - that in Knox's and Sollecito's cases, there was absolutely ZERO reason to deny them access to legal counsel under these sections of the code. The fact that Matteini didn't raise hell over Mignini's gross abuse of the law is only in itself further evidence that the judiciary are still far to close to - and far too wedded to the "reasoning" of - the PMs. Disgusting all round.

Oh, and what a ginormous surprise that the "evidence" apparently used by Mignini to justify his behaviour on this issue never turned up.....

 

[Machiavelli]

So if a police officer came upon a man in the street who was violently physically assaulting a woman, are you SERIOUSLY suggesting that the man could not be prosecuted unless and until the woman made a formal complaint?

I'm afraid that's the case.
The aggerssor can be physically stopped, but not prosecuted. Not without complaint.
The law offers some "protections": for example, in case of rape or in case of domestic violence against a woman, the victim cannot withdraw the complaint. However, the law still requires a complaint. Otherwise, no prosecution. Maybe unfortunate, but true.

And of course this is before one even considers the situation of a murder and the "victim complaint".... "I would like to make a formal complaint that this man murdered me"

Obviously, complaint is required for most crimes against the person, but not for all of them. Some of the the most damaging (murder, attemtped murder, manslaughter etc.) have a mandatory prosecution.

 

[LondonJohn]

She said she was hit. Apart from that, she does not say that she was mistreated.

I initially missed the delicious irony in this sentence of Machiavelli's!

I'm going to have a go at writing a similar sentence of my own. Here goes:

"He said he killed thousands of his own citizens with chemical weapons. Apart from that, he does not say he committed genocide"

 

[Machiavelli]

Paragraoh 4 of art. 104 interpreted by the Supreme Court:

The delay requires «necessità fuori dal comune, attinenti allo svolgimento delle indagini che rischierebbero di subire uno sviamento o comunque un pregiudizio »... per effetto del colloquio (Cass., Sez. II, 21.3.1990, Ghidini)
such as:
«l'esigenza di evitare la possibilità dell'impostazione di preordinate e comuni tesi difensive di comodo» (Cass., Sez. VI, 10.6.2003, Vinci; Cass., Sez. VI, 27.6.2001, D'Ambrogio; Cass., Sez. VI, 20.4.2001, P.M. in proc. Pignalosa).

"Necessities out of the ordinary, that have to do with the ongoing of investigation, since the latter could be lead off-track or anyway a jeopardy as a consequence of the defence counsuel"

"The need to avoid the possibility of [the suspects] setting pre-determined and agreeing among themselves defensive theories to serve their interest"

 

[RoseMontague]

"The need to avoid the possibility of [the suspects] setting pre-determined and agreed to defensive theories to serve their interest"

Wow. Isn't that what lawyers are for? What a corrupt system.

 

[Machiavelli]

A 2012 proposal submitted at the Parliament, for the reform of art. 104, by abolishing paragraphs 3 and 4:

http://documenti.camera.it/leg16/dossier/testi/GI0840_0.htm

Apparently the proposal was rejected at the Senate.

 

[RoseMontague]

She said she was hit. Apart from that, she does not say that she was mistreated.

I initially missed the delicious irony in this sentence of Machiavelli's!

I'm going to have a go at writing a similar sentence of my own. Here goes:

"He said he killed thousands of his own citizens with chemical weapons. Apart from that, he does not say he committed genocide"

It's a pretty silly argument by Machiavelli.

 

[LondonJohn]

Wow. Isn't that what lawyers are for? What a corrupt system.

Yes, but the two SC rulings Machiavelli has quotes both specifically and explicitly refer to the possibility of perversions of justice arising as a result of the suspect talking with his/her defence counsel (by mechanisms such as warning others or "getting stories straight").

And this can ONLY be a possibility if one believes that the defence counsel himself/herself is corrupt and in league with the suspect, and has a vested interest in breaking the law to assist the suspect. It's obvious to see that this may very well be a reasonable belief if the suspect is a mafia figure and the defence lawyer has - shall we say - "connections" to the mafia.

But it's absolutely NOT a reasonable belief if the suspect is a young university student with absolutely no links to organised crime (and where the alleged offence clearly also has no link to organised crime), and where the defence lawyers not only have no links to organised crime, but have never even met their clients before.

Shocking, and disgusting.

 

[Machiavelli]

To those (anglolawyer) who required a documentation about art. 140 § 4, I found the following:

In google books

In online law encyclopedia:

http://www.treccani.it/enciclopedia/misure-cautelari-applicazione-ed-esecuzione_res-117930ee-d40b-11e2-a3c8-00271042e8d9_%28Diritto-on-line%29/

 

[RoseMontague]

Yes, but the two SC rulings Machiavelli has quotes both specifically and explicitly refer to the possibility of perversions of justice arising as a result of the suspect talking with his/her defence counsel (by mechanisms such as warning others or "getting stories straight").

And this can ONLY be a possibility if one believes that the defence counsel himself/herself is corrupt and in league with the suspect, and has a vested interest in breaking the law to assist the suspect. It's obvious to see that this may very well be a reasonable belief if the suspect is a mafia figure and the defence lawyer has - shall we say - "connections" to the mafia.

But it's absolutely NOT a reasonable belief if the suspect is a young university student with absolutely no links to organised crime (and where the alleged offence clearly also has no link to organised crime), and where the defence lawyers not only have no links to organised crime, but have never even met their clients before.

Shocking, and disgusting.

Well said, LJ. It is disgusting.

 

[anglolawyer]

But Matteini rejected the complaint by the defence, who were claiming violations. You understand that?
Your idea about what "exceptional" means is quite made up by yourself. The article says "specific exceptional for caution".
In Italy the word "exceptional" is quite common as much as the word "emergency": in fact sometimes one thinks everything is made under procedures of emergency or procedures of exception. But this is another story.
The key point is that Matteini disagrees with the defence and with your idea of exceptional reasons for caution, since Matteini accepted Mignini's decision as lawful.
Mignini - this is what I think - explained the reason in the hearing, but the minutes of the heraing just do not report them (in fact the minutes documents doesn't report any argument, from any side; while we know that the defence made quite long arguments).
The judge ordered "proceed further", it's quite clear that your argument about what exceptional means doesn't have merits. I point out that the same defence objection - requesting the annullment of the cautionary measure on grounds of illegitimate procedure - was rejected at all instances, by Massei, by Ricciarelli and by the Supreme Court (in the same riling where they ruled about usability).
So there is no room to assert that there was a violation of art. 104. I point out that I have made no research to establish what "exceptional reasons for caution" means in jurisprudence, but the burden is yours since it's you who claim a violation, and it's a claim about something which was already found as non-existing by courts.

I was there = Io ero li. As you said, the meaning is the same.
Exceptional = Eccezionale - now the meaning is supposedly completely different.

********. Produce a Cassazione Authority please. By the way, the expression 'specific exceptional for caution' is not good English. Check that with Mach 2. I suspect the meaning in English is 'specific and exceptional grounds for caution'.

You say Matteini rejected the defence argument as if that proves Mignini behaved correctly but you go on to acknowledge that the specific reasons are not specified anywhere, leaving you to guess what they are. So we have secret justice in which fundamental human rights are determined secretly. I do not think you have read or understood properly Matteini's order. She refers to article 104 para 4 not para 3, relieving herself from any obligation to state the reasons Mignini had specified in an order he has lost. My my how careless the PM is! He forgot to press record in all the 'confusion' and then forgot to preserve his specific and exceptional reasons and in both cases fundamental rights of the suspect were engaged. (And christianahannah thinks this crook is a great guy).

In my opinion Matteini presided over a kangaroo court in which she entirely failed to apply her mind critically to what she was being told. She behaved unjudicially, just as she did later when fatuously criticising Amanda for failing to show remorse for a crime she had not been proved to have committed.

Edited by Locknar: 

Edited, breach of rule 10; please do curse in your posts or alter curse words in a attempt to bypass the autocensor.

 

[Machiavelli]

Yes, but the two SC rulings Machiavelli has quotes both specifically and explicitly refer to the possibility of perversions of justice arising as a result of the suspect talking with his/her defence counsel (by mechanisms such as warning others or "getting stories straight").

(...)

The rulings actually - as I understand them - links the risk to the presence of multiple suspects that may "agree" a defensive version among themselves (or anyway a suspect that communicates with another suspect). Which does not imply that the defence attorney is a criminal. The attorney is a privileged contact that serves the interest of the accused, but is also a potential - obvious - source of information, because he/she knows things (related to other suspects' actions) that the suspect is supposed not to know. At least, not prior to appearing before the judge.

 

[anglolawyer]

Paragraoh 4 of art. 104 interpreted by the Supreme Court:

The delay requires «necessità fuori dal comune, attinenti allo svolgimento delle indagini che rischierebbero di subire uno sviamento o comunque un pregiudizio »... per effetto del colloquio (Cass., Sez. II, 21.3.1990, Ghidini)
such as:
«l'esigenza di evitare la possibilità dell'impostazione di preordinate e comuni tesi difensive di comodo» (Cass., Sez. VI, 10.6.2003, Vinci; Cass., Sez. VI, 27.6.2001, D'Ambrogio; Cass., Sez. VI, 20.4.2001, P.M. in proc. Pignalosa).

"Necessities out of the ordinary, that have to do with the ongoing of investigation, since the latter could be lead off-track or anyway a jeopardy as a consequence of the defence counsuel"

"The need to avoid the possibility of [the suspects] setting pre-determined and agreeing among themselves defensive theories to serve their interest"

Thank you Mach. I will take you at your word. How is it that the UK and US have well-functioning systems which have no need of this extraordinarily widely-interpreted law? What cassazione is saying is that in any joint enterprise crime, whatever it may (the theft of a packet of sweets) the suspects can be denied access to advice in case their lawyers speak to each other. And women in jeans can't be raped either. What an absolute disgrace this system of yours is. A laughing stock. Hang on while we raise a few grand to bribe the Florence judges. There's as much chance of a just outcome that way and it will avoid the mockery of another show trial.

These laws impede the right to a fair trial. They are not human rights compliant. Italy's criminal justice system is a disgrace. It's that simple.

 

[RoseMontague]

Thank you Mach. I will take you at your word. How is it that the UK and US have well-functioning systems which have no need of this extraordinarily widely-interpreted law? What cassazione is saying is that in any joint enterprise crime, whatever it may (the theft of a packet of sweets) the suspects can be denied access to advice in case their lawyers speak to each other. And women in jeans can't be raped either. What an absolute disgrace this system of yours is. A laughing stock. Hang on while we raise a few grand to bribe the Florence judges. There's as much chance of a just outcome that way and it will avoid the mockery of another show trial.

These laws impede the right to a fair trial. They are not human rights compliant. Italy's criminal justice system is a disgrace. It's that simple.

I should thank Mach as well. I never realized what a terrible system this is until he explained it.

 

[LondonJohn]

Unsurprisingly perhaps, Machiavelli has chosen to omit a rather relevant part of the paragraph from which he earlier quoted. The omitted part says this:

In merito la giurisprudenza ha sottolineato che i presupposti indicati nell'art. 104 non possono identificarsi con quelli previsti dall'art. 274 del codice di rito, che delinea le esigenze cautelari; altrimenti si giungerebbe alla conseguenza che ogni volta che sussistono le condizioni per l'applicazione delle misure coercitive si dovrebbe differire il colloquio. Evidentemente la norma, definendo specifiche ed eccezionali le ragioni di cautela, richiede un quid pluris rispetto alle esigenze cautelari di cui all'art. 274 (Cass., Sez. I, 27.4.1992, Mistretta).

Which translates to:

In this regard, the Court has emphasized that the conditions indicated in art. 104 can not be compared with those provided by. 274 of the Code of Procedure, which outlines the precautionary needs; otherwise it (would have) the consequence that every time the conditions for the application of coercive measures should defer the interview. Evidently the standard, defining specific and exceptional reasons of caution, requires quid pluris (= more) than the precautionary requirements of art. 274 (Court of Cassation, Sec. I 27.4.1992 , Mistretta).

http://documenti.camera.it/leg16/dossier/testi/GI0840_0.htm


And for reference, here's a translation of Section 274 of the Italian Code of Criminal Procedure, as referenced above. It outlines the "normal" situations where precautionary measures can be taken against a suspect:

1. The measures shall be prescribed:

a) where there are specific and mandatory requirements relating to the investigation of the facts for which it proceeds, in relation to situations of real and present danger to the acquisition or authenticity of the evidence, based on facts expressly indicated in the decision on penalty of invalidity detectable even in the office. The situations of real and present danger can not be identified in the refusal of the person under investigation or accused of making statements or in the non-admission of objections;

b) where the accused has taken flight or there is a real danger that he is absconding, unless the court considers that it may be imposing a sentence of up to two years' imprisonment;

c) when, for the specific terms and circumstances of the offense and the personality of the person under investigation or accused, inferred from conduct or specific acts or by his criminal record, there is a real danger that he would commit serious crimes with the use of weapons or other means of personal violence or if directed against the constitutional order or (if part of) organized crime or of the same kind as that for which it proceeds.

You will note that the reasons outlined here are already specific and fairly extreme. You will also notice that the SC has ruled that the 104 measures can only be applied where the situation is EVEN MORE unusual and extreme than for 274 measures.

It only remains for me to wonder why Machiavelli chose to quote only selectively from the original text he had in front of him. I cannot for one moment think why that might have been.....

 

[Machiavelli]

********. Produce a Cassazione Authority please.

Edited by Locknar: 

Moderated content removed.

I gave you references and even a couple of pages. Which is quite a lot.

By the way, the expression 'specific exceptional for caution' is not good English. Check that with Mach 2. I suspect the meaning in English is 'specific and exceptional grounds for caution'.

Yes.

"Exceptional" is - both in Italian and in English - quite an unspecific word itself. It means that it is not the ordinary thing.
As for what I have read in the SC rulings, the legal accepted meaning for "exceptional" is that it must be something with a quid pluris compared to the simple ground for cautionary custody. That is, the same (usually unspecific) grounds for cautionary custody are not sufficient to apply § 3 and 4 art. 104. There must be some specific reason more. It mus be "exceptional" in the sense that it is additional to the ordinary reasons for which cautionary custody applies, and it must be a reasons of the moment, related to the immediate needs to not jeopardize the investigation (it canot be a protracted reason).

You say Matteini rejected the defence argument as if that proves Mignini behaved correctly but you go on to acknowledge that the specific reasons are not specified anywhere, leaving you to guess what they are. So we have secret justice in which fundamental human rights are determined secretly. I do not think you have read or understood properly Matteini's order. She refers to article 104 para 4 not para 3, relieving herself from any obligation to state the reasons Mignini had specified in an order he has lost.

I think I understood properly. Matteini rejects a defence complaint. This is obvious and clear. Whereas she does not apply par. 3, she does not concede that Mignini violated the law by applying par. 4, on the contrary she accepts Mignini's decree as legal within his powers, and rejects the objection.

My my how careless the PM is! He forgot to press record in all the 'confusion' and then forgot to preserve his specific and exceptional reasons and in both cases fundamental rights of the suspect were engaged. (And christianahannah thinks this crook is a great guy).

I think the PM actually referred his reasons in Matteini's hearing; there is a recording of the hearing. And apparently Matteini was satisfied with the reasons (which I guess are those cited in the SC rulings upthread).

In my opinion Matteini presided over a kangaroo court in which she entirely failed to apply her mind critically to what she was being told. She behaved unjudicially, just as she did later when fatuously criticising Amanda for failing to show remorse for a crime she had not been proved to have committed.

Well everybody is entitled to their own opinions. However the defence instance about the nullity of cautionary custody was rejected by all subsequent courts. Including the Supreme Court.

 

[Machiavelli]

Unsurprisingly perhaps, Machiavelli has chosen to omit a rather relevant part of the paragraph from which he earlier quoted. (..)

But LJ, I did not omit anything. I quoted only the relevant statments that contradict your theories, but I linked everything for you. So I urge you to try read the linked documents entirely, as well.

I point out that I already summarized your findings in a poste above, where I wrote:

As for what I have read in the SC rulings, the legal accepted meaning for "exceptional" is that it must be something with a quid pluris compared to the simple ground for cautionary custody. That is, the same (usually unspecific) grounds for cautionary custody are not sufficient to apply § 3 and 4 art. 104. There must be some specific reason more. It mus be "exceptional" in the sense that it is additional to the ordinary reasons for which cautionary custody applies, and it must be a reasons of the moment, related to the immediate needs to not jeopardize the investigation (it canot be a protracted reason).

So this is what I understood (from the links, which explain the SC jurisprudence on the point more o less thorughly) about the concept of exceptional and specific grounds for caution.

 

[LondonJohn]

I was there = Io ero li. As you said, the meaning is the same.
Exceptional = Eccezionale - now the meaning is supposedly completely different.

********. Produce a Cassazione Authority please. By the way, the expression 'specific exceptional for caution' is not good English. Check that with Mach 2. I suspect the meaning in English is 'specific and exceptional grounds for caution'.

You say Matteini rejected the defence argument as if that proves Mignini behaved correctly but you go on to acknowledge that the specific reasons are not specified anywhere, leaving you to guess what they are. So we have secret justice in which fundamental human rights are determined secretly. I do not think you have read or understood properly Matteini's order. She refers to article 104 para 4 not para 3, relieving herself from any obligation to state the reasons Mignini had specified in an order he has lost. My my how careless the PM is! He forgot to press record in all the 'confusion' and then forgot to preserve his specific and exceptional reasons and in both cases fundamental rights of the suspect were engaged. (And christianahannah thinks this crook is a great guy).

In my opinion Matteini presided over a kangaroo court in which she entirely failed to apply her mind critically to what she was being told. She behaved unjudicially, just as she did later when fatuously criticising Amanda for failing to show remorse for a crime she had not been proved to have committed.

Edited by Locknar: 

Moderated content removed.

Exactly. And as you alluded to above, in 104 rulings there is a requirement for the PM to produce a written motivation if (s)he (the PM) has unilaterally enacted the ruling for the 48 hours prior to presentation before a judge.

Call me wearily unsurprised, but Mignini neglected to produce this motivation either during or after the Matteini hearing. That's just one part of the reason why Matteini is as culpable for this unlawful activity as Mignini himself is.

Something is rotten in the state of Perugia......

 

[LondonJohn]

But LJ, I did not omit anything. I quoted only the relevant statments that contradict your theories, but I linked everything for you. So I urge you to try read the linked documents entirely, as well.

The part you "omitted" was DIRECTLY relevant - unless you have a subjective, vested interest in peddling half-truths, distortions and lies, that is....

And you didn't link to the original source in the post in which you included your quoted sections.

 

[Bill Williams]

Unsurprisingly perhaps, Machiavelli has chosen to omit a rather relevant part of the paragraph from which he earlier quoted. The omitted part says this:

<......... sinister deletia ............>

It only remains for me to wonder why Machiavelli chose to quote only selectively from the original text he had in front of him. I cannot for one moment think why that might have been.....

Because this is what one side does - they try to make a case. They can make the case by omitting, twisting, bending.... you know, all the stuff Machiavelli does. Each side tries to argue as if this is the only sane and logical interpretation....

What is clear is that Machiavelli argues very close to what Galati argued in the prosecution appeal to the ISC. And what is clear is that the ISC reversed the Hellmann acquittals because of that argument.

What is missing is that now the ISC seems to be condoning things, as AngloLawer pointed out, that if two people do any equivalent crime, they can now be held in solitary confinement, denied access to lawyers right up to their first appearance before a judge, all because EVERY crime can now be interpreted as extreme.

The ISC seems to be siding with fascism, all to protect Mignini's errors.

Do you want to live in a country which condones this? Apparently Machiavelli and Mach 2 do.